APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
In a bench trial, defendants Gerald Freeman, Lamont Johnson, Matthew Crosby and Gregory Knox were found guilty of aggravated battery and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 12-4, 33A-2.) In addition, Johnson, Crosby and Knox were found guilty of aggravated kidnapping. (Ill. Rev. Stat. 1977, ch. 38, par. 10-2.) The issues raised on appeal are: (1) whether Freeman was proven guilty beyond a reasonable doubt of armed violence; (2) whether the convictions of Freeman, Johnson and Crosby for armed violence should be reversed because the evidence was insufficient to establish that any defendant was armed with a gun; (3) whether the convictions of Johnson and Crosby for aggravated kidnapping should be reversed because the offense arose out of the same transaction as the armed violence; (4) whether the court was precluded from imposing an extended term in sentencing Johnson for aggravated battery because Johnson had never been convicted of a felony of the same or greater class; (5) whether the court was precluded from imposing extended terms in sentencing Freeman, Johnson and Crosby for aggravated battery because defendants did not receive notice that they could receive extended terms and because the evidence was insufficient to establish their prior felony convictions; (6) whether the testimony of the victim was sufficient to convict defendant Knox where the State failed to present the testimony of any other witnesses to the acts; (7) whether Knox was denied his right to a fair trial and whether errors at trial amounted to plain error; and (8) whether Knox did not receive effective assistance of counsel where Knox and his three co-defendants were represented by a single public defender.
For the reasons set forth herein, we affirm.
Janice Freeman testified that on November 11, 1978, at 1 a.m., she was returning home from a party. As she walked up the back stairway to her apartment and entered the second floor hallway, she saw Gerald Freeman, who is her brother-in-law, Lamont Johnson, Matthew Crosby, Gregory Knox and Gregory Nugent. Freeman approached her and asked her where the "enforcer" was. She understood Freeman to mean the machine gun which Johnson had given her to keep a few days earlier. After getting her roommate's approval to keep the weapon, she placed the gun which was in a case behind a box in the closet of the apartment. When Gerald Freeman had requested the weapon, she indicated that the weapon was in her apartment. He told her that the weapon was not there.
Janice Freeman stated that the defendants had created a disturbance in the hall which resulted in a few of the people that were in her apartment to come to the apartment door to see what the commotion was about. Gerald Freeman then struck her in the face three times, causing her to fall backwards. Her hand was cut when it went through the window pane of the back door. Gerald Freeman then went into her apartment. Defendant Knox then asked her where the weapon was, and she responded that she did not know. Johnson, Crosby, Knox and Nugent forced her into an apartment which was across the hall from her apartment. Knox then struck her in the face several times. Knox then grabbed a metal lawn chair and hit her across the head and in her abdomen. She doubled over because of the blow to her abdomen and she was kicked and struck several more times. She did not know who was striking her at this time. During this time, Knox repeatedly asked Janice Freeman the location of the machine gun and she replied that she did not know where the weapon was.
She testified that she then went into the hall and was attempting to return to her apartment when Johnson stopped her and placed a gun to her head. Johnson told her that she was going with him, Crosby, Knox and Nugent. She testified that she did not know where Johnson obtained the gun on that occasion, but that she had previously seen the gun when Johnson threatened her boyfriend with it. The four men dragged her out of the hallway and down the back stairway during which time she was screaming for her brother-in-law Gerald Freeman. While she was being dragged down the stairway, Crosby kicked her hand as she was clutching the bannister and then struck her hand with a broken piece of the bannister. At the bottom of the stairs, Johnson, Crosby and Knox picked her up and placed her inside the trunk of a car which was parked nearby. She testified that while she was in the trunk with the trunk lid still open, she saw Gerald Freeman with her daughter. Freeman held the daughter around the shoulders and prevented the girl from running to her mother. Freeman then told the men to make her tell, but do not kill her. A person named Carolyn approached Janice Freeman and told her to tell the defendants where the weapon was. Janice Freeman still said she did not know where the machine gun was. The trunk lid was closed and the car was driven away. Shortly thereafter, the car was stopped and the trunk was opened. Her mouth, hands and feet were bound with rags by Johnson and Crosby while Nugent and Knox watched. The trunk lid was then closed and the car began moving again.
By the time the car had stopped, Janice Freeman had untied the rags, but she could not get out of the trunk. After the trunk was opened, Knox twice struck her in the face with his fist. She testified that she was forced to get out of the trunk and that Knox, Johnson, Crosby and Nugent accompanied her to a basement apartment. She then was led to a bedroom where she was seated in a metal folding chair. Crosby and Johnson bound her feet to the chair with coat hangers. Knox then struck her in the face and stomach while she was tied to the chair. Knox repeatedly asked her where the machine gun was and each time she responded that she did not know. Knox then asked her where her boyfriend lived apparently because Knox thought that she may have given the gun to her boyfriend. Johnson also struck her while she was tied to the chair while Crosby and Nugent watched.
According to her testimony, Knox then gave Nugent a needle and told him to put battery acid in the needle. While Nugent was outside the bedroom, she told the others that they could do whatever they wanted to her, but that she did not take the machine gun. On direct examination, she testified that her money was missing and that she wanted the men to give the money to her daughter. On cross-examination, she denied that she had lost any money and denied that she had offered one of the defendants money to fight. She also denied on cross-examination that she had attempted to arrange a fight between Knox and Johnson. After a few minutes, Nugent returned with the needle and then Knox stuck the needle into her neck. Johnson made a remark about the police and Johnson and Knox left the apartment. Crosby and Nugent untied Janice Freeman and the needle fell from her neck. Crosby then slapped her and she fell against the wall cutting her face. Crosby left the apartment and Nugent remained with her. She then attempted to wipe the blood from her face and eyes. She testified that Officer Shaw entered the apartment with Crosby. She did not answer any questions asked by the officer concerning her injuries. Other police officers arrived and she was then taken back to her apartment building where she spoke with a girlfriend while she was still in the police car. She was then taken to the hospital where she was treated for her injuries. At trial, Janice Freeman identified photographs of her which had been taken after she had been beaten. She also identified the weapon which was held to her head by Johnson. On cross-examination, Janice Freeman testified that there were people in her apartment when she was first struck by Freeman. She stated that she had seen the gun which Johnson held to her head a few weeks earlier when Johnson had pulled the gun on her boyfriend during the course of a fight. She also denied attempting to arrange a fight between Knox and Johnson. Janice Freeman admitted that she had been convicted of possession of heroin.
Officer Shaw testified that he arrived at the basement apartment in response to a complaint. He entered the apartment with Crosby and found the victim with her face almost completely swollen with one eye closed and bleeding. The victim told the officer that the men were not responsible for her condition. Shaw found Nugent in the bedroom of the basement apartment. Shaw then called a beat car. At 5:30 a.m. Shaw went to the apartment where the victim first had been beaten and where Johnson, Crosby, Knox, Nugent and Freeman were. The five men and seven others were arrested and taken to the police station. The officer also testified that there was assorted drug paraphernalia in the apartment.
Officer Bedren testified, without objection, about a conversation that he had with Janice Freeman while she was at the hospital. The victim told Bedren that she was approached by the five men in the hallway of her apartment building. She said the men discussed with her getting a ride and a machine gun. Bedren stated that he went to the apartment where the victim had been beaten because the victim had furnished Bedren with the names of the five men. At trial, Bedren identified Knox, Freeman, Crosby and Johnson as four of the 11 persons who were in the apartment that morning. Bedren stated that 11 persons were arrested that morning. After the arrests were made, Bedren searched the apartment and found a gun in the stove. When he showed the gun to the victim, she told him that it looked like the gun, but that she was not certain. The five photographs of the victim were admitted into evidence without objection. The defense objected to the admission of the weapon based upon relevancy. The trial court overruled defendants' objection. The State then rested its case.
Gerald Freeman testified that on the evening of the disturbance, he was attempting to restrain Janice Freeman from interfering in a fight between her boyfriend and Johnson. He stated that he struck her during his attempt to restrain her, she fell backwards and her hand went through a window. Freeman testified that he next saw Janice Freeman at the police station at about 5 a.m. He denied that he threw her down the stairs, that he helped put her in the trunk of a car and that he threatened her. Gregory Knox testified that he first had seen the victim at about 1 a.m. at a lounge, at which time her face was swollen. He stated that he went with the victim to the basement apartment where he tried on a suit. He was given money by the victim to shoot Johnson because she was angry with Johnson. Knox claimed that he did not intend to shoot Johnson, but intended to "beat her for the money." Michael Porshay, one of the individuals who was arrested in the apartment, testified that he saw the victim and Nugent walking down the stairs to the apartment building and get into his car.
The court found all four defendants guilty of armed violence in the commission of an unlawful restraint and guilty of aggravated battery. Defendants Johnson, Crosby and Knox were found guilty of aggravated kidnapping. Each of the defendants' sentences for aggravated battery were imposed under the extended term provisions of the Unified Code of Corrections. (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005-8-2.) Defendants appeal.
The first issue raised on appeal is that defendant Gerald Freeman was not proven guilty of armed violence beyond a reasonable doubt because the evidence demonstrated at most that he was guilty of only aggravated battery. Defendant Freeman claims that the testimony of Janice Freeman established that he was present in the hallway near her apartment and that he was present with Janice Freeman's daughter while she was in the trunk of the automobile. He contends that the court found that the offense of armed violence occurred when Lamont Johnson placed the gun to the head of Janice Freeman and that the testimony failed to prove that he was present. He also argues that the evidence was insufficient to prove that he shared the criminal intent or joined in a common purpose with the other defendants to accomplish the crime. He urges that, without further evidence, he cannot be convicted of the offense of armed violence because the evidence was insufficient to establish his guilt beyond a reasonable doubt. Defendant argues that in order to be convicted under the accountability provisions of section 5-2(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c)), the State must prove beyond a reasonable doubt that: (1) defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) such participation must have taken place either before or during the commission of the offense; and (3) such participation must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Ramirez (1968), 93 Ill. App.2d 404, 410, 236 N.E.2d 284, 288.) He argues that the State has failed to meet its burden of proof in that it failed to establish beyond a reasonable doubt that defendant shared the criminal intent of the principals or that there was "a community of unlawful purpose." (People v. Ramirez (1968), 93 Ill. App.2d 404, 411, 236 N.E.2d 284, 288; see People v. Bolden (1978), 59 Ill. App.3d 441, 375 N.E.2d 898.) Defendant argues that there is insufficient evidence to establish beyond a reasonable doubt that he possessed the requisite prior intent that went beyond the initial act of striking Janice Freeman. At most, defendant urges, the only common purpose defendant shared ...