APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
MASSEY, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 6, 1982.
After a bench trial, defendant was convicted and sentenced to six years for armed violence and a concurrent three year term for aggravated battery. On appeal, it is contended that (1) defendant was not proved guilty beyond a reasonable doubt; (2) the trial court erred in failing to grant defendant a continuance to obtain a necessary witness, in failing to grant an evidentiary hearing on his motion for rehearing of his motion for new trial, and in allowing testimony as to a telephone conversation; and (3) defendant was improperly sentenced.
The record discloses that on the date set for trial defendant moved for a continuance because a necessary witness was purportedly hospitalized. In denying the request, the court stated that, if necessary, it would give defendant another day to bring in his witnesses.
Thomas Jackson testified that on July 25, 1979, about 11 p.m., he and 15 to 20 others were in Horner Park, celebrating a friend's birthday, when the passenger on a passing motorcycle yelled certain remarks and obscenities and Jackson and his friends yelled back at them. He stated that the park was well-lighted and that the slowly moving motorcycle came within 15 to 20 feet of him, but that he was unable to describe the motorcycle or to identify either man except that the driver had dark hair and was wearing dark pants and the passenger also had dark hair, dark pants, and a dark tank top. Jackson and Thomas Okienowski followed them in a car and, after the motorcycle made a right turn onto Montrose and a left turn onto Manor, it pulled up on the sidewalk and, when the passenger got off, Okienowski suggested that they probably had a gun and they decided to leave. About two blocks from where they had last seen the motorcycle, he (Jackson) was shot in the head near his right eyebrow. He testified that he heard four shots altogether and that he is blind in one eye as a result of one of the shots.
Richard Sheldon testified that he was with a group in Horner Park about 11 p.m. on July 25 when two persons on a passing motorcycle yelled at them. The motorcycle came within seven feet of him, and he was able to clearly see the people on it because the park lights were on. He had seen the passenger several times before, on his way to school, and he identified defendant as the passenger in a lineup the next day and again at trial.
Thomas Okienowski testified that he was also in the park about 11 p.m. on July 25 when two people passing on a motorcycle yelled certain things to his group. At that time, he was about five feet from the slowly moving motorcycle in an area lighted with street lights. Okienowski had seen the passenger around school and knew him as "Little Hugo." He and Jackson got in Jackson's car and followed it to show them that they were not afraid. The motorcycle turned right on Montrose and then turned again on Manor and, when the passenger started to get off the bike, he said that they might have a gun — to which Jackson responded, "Well, we better get out of here." They passed the motorcycle and, after they had turned around and began driving in the opposite direction on Montrose, he heard a shot and saw Jackson bleeding from above the eye. He turned and saw the motorcycle and heard another shot. Two people were on the motorcycle and the passenger had a black handgun and was shooting at them, firing four or five shots. He said that the closest they got to the motorcycle while following it was 10 to 15 feet and that it was a silver Honda 750, the same one he had seen in the park. He made a photo identification the next day and also identified defendant in the courtroom as the passenger on the motorcycle.
The defense called Patricia Cunningham, who stated that she had known defendant for four to five years and had been with him and other friends from about 8 p.m. to 10 p.m. on July 25. When she first saw defendant it was at Roosevelt School, and he was with his girl friend, Frank Shockey, and Robert Taylor. Later, they all left and went to a store at Central Park and Wilson, a usual meeting place, from which defendant left about 10 p.m. to drive his girl friend home in Frank Shockey's car. When she next saw him about 10:30, he was back at Central Park and Wilson with Shockey, Robert Taylor, Michael Mihaus, and two sisters named Roxanne and Carrie. She left about 11 p.m., and defendant was still there. She also stated that defendant was wearing gray khaki pants and a white sleeveless T-shirt and that none of the people present that evening had motorcycles with them. She admitted talking to an assistant State's Attorney over the telephone the next day but denied telling him that the last time she had seen defendant on July 25 was at 5:30 p.m.
Roxanne Whited testified for the defense that she saw defendant and others in front of her house on Central from about 10 p.m. to 12:30 a.m. on the evening of July 25; that defendant was there around 11 p.m. when she called her sister Carrie in, and that none of those present had motorcycles.
Frank Shockey testified for the defense that he arrived at Central and Wilson about 8:30 p.m., that evening and that at about 9:30 p.m. defendant left for about 40 minutes to take his girl friend home, but that defendant did not leave again until midnight. Shockey said that defendant was wearing dark baggy pants and a white Dago T-shirt and that he thought Mike Mihaus had his bright orange Kawasaki motorcycle at Central and Wilson that evening.
Defendant testified that at 8:30 or 9 p.m. on July 25, he went alone to Central Park and Wilson. Many friends were there, including Frank Shockey, Mike Brouer, Patsy and Roxie. He was wearing a white sleeveless T-shirt and light-colored khakis. Defendant denied leaving on a motorcycle of any kind, going to Horner Park, having a gun or access to a gun, or firing shots at a car driven by Thomas Jackson. He testified that he had seen Jackson only once before and had no reason to quarrel with him and, although he had seen Richard Sheldon at Roosevelt School, he never had an argument with him. He testified also that he and Okienowski used to go to school together, that "we used to be fairly decent friends. We always talked. Basically, we used to sit right next to each other in Draft Shop" and that nothing had ever occurred between them to cause Okienowski to make his accusations.
William Kopec, an assistant State's Attorney, testified in rebuttal that on the day after the shooting defendant told him he was with Patsy Cunningham from early evening to midnight on July 25 and with Frank Shockey from 8:30 to 11 p.m. Kopec said he then called the telephone number for Patsy Cunningham by either looking in the telephone book or by using a number given him by someone from her place of employment. The person answering identified herself as Patsy Cunningham and told him that the last time she had seen defendant on July 25 was about 5:15 p.m.
The court denied defendant's motion for a new trial and found him guilty of armed violence and aggravated battery, "causing great bodily harm to Thomas Jackson by ...