APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT
McKAY, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Walter Sibley, was found guilty of attempted murder (Ill. Rev. Stat. 1977, ch. 38, par. 8-4), aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4), and armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2). He was sentenced to 18 years in the Illinois Department of Corrections for attempted murder and 18 years for armed violence, said sentences to run concurrently. No sentence was imposed for the aggravated battery conviction.
On appeal, defendant raises the following issues for review: (1) whether the trial court erred in failing to instruct the jury on the lesser crime of reckless conduct; (2) whether defendant was denied a fair trial when the prosecutors, in closing arguments, distorted the ultimate issue in the case, voiced opinion as to a defense witness' credibility and commented on facts not in evidence; and (3) whether defendant's convictions for attempted murder and aggravated battery must be reversed where those convictions are based on the same conduct supporting the armed violence conviction.
At trial, Charles Rankin testified on November 22, 1978, he and his 8-year-old son, Martin, were at the Melody Lounge in Harvey, Illinois, where he saw defendant Sibley conversing with someone at the bar. The witness was defendant's former employee. He saw defendant leave and return with a shotgun. Defendant pointed the shotgun at him and told him to "go outside."
Rankin stated that once they were outside the lounge, Sibley asked, "Who broke in my joint? Where is my tools at? You better tell me before I blow your brains out." The witness replied, "I swear to you, I don't know nothing about your tools or anything." Defendant pointed the shotgun at Rankin's face. At that time, Martin was walking toward his father's car. Rankin indicated that when defendant looked at Martin, he grabbed the barrel of the gun, they struggled, and defendant pulled the trigger. Martin was injured. Sibley told him to take Martin to the hospital. Rankin took his son to Ingalls Hospital. Rankin stated that he never touched defendant's hand, which was on the gun during the struggle.
At the time of trial, Martin Rankin was 10 years old. Outside the presence of the jury, the trial judge conducted a competency hearing and found that Martin was competent to testify.
Martin Rankin testified that he watched Sibley point a shotgun at his father's head. After he yelled, "Daddy, daddy," defendant turned toward him. His father struggled with defendant, the shotgun discharged and he was struck in the right hip. Martin stated that defendant Sibley was the man who shot him. Over defense's objection, Martin showed the jury his injuries.
Glendora Gray, Charles Rankin's friend, testified that she was in a car with her husband in front of the Melody Lounge. She saw the struggle and saw Martin being shot. She was approximately 30 to 35 feet from Charles Rankin during the incident.
Coleman McCarthy testified that he is an investigator for the Harvey Police Department. After speaking with Mr. Rankin, he went to defendant's home but no one was there. Thirty-five minutes later, he returned to defendant's home, knocked on the door and saw movement in the house. When no one answered, he knocked the door down. Defendant, who was inside, offered no resistance and took the police to the area where the gun was recovered.
After a stipulation as to the treating physician's testimony concerning Martin's injuries, the State rested. Defendant's motion for a directed verdict was denied.
The defense's first witness was Mac Berry, defendant's brother-in-law. Berry saw defendant pointing the gun at Rankin. He told Sibley that "he shouldn't do this" because "he got a family." Defendant said, "you're right, brother" and lowered the gun. Thereafter, Rankin grabbed the gun and the two began to struggle. Berry indicated that he saw Martin fall after being shot.
Defendant Sibley, testifying in his own behalf, stated that he was self-employed, restoring custom and antique automobiles. On November 22, 1978, he went to the Melody Lounge to have a beer before meeting his wife at the Illinois Central Railroad station. As he walked past Rankin, Rankin made a comment to him. Defendant went to the back of the tavern, saw a shotgun and picked it up, deciding he would "put a scare into Mr. Rankin." He had never seen the gun before and did not know how to use it. Defendant approached Rankin, showed him the gun and told him to step outside. Rankin admitted taking Sibley's tools. Defendant did not threaten Rankin.
Sibley stated that once outside, Berry said to him, "It's not worth it" and to consider his family. He lowered the weapon and Rankin grabbed the front of the gun, a struggle ensued and the gun discharged. Defendant explained that during the struggle there was a waving of the gun, backward, forward, down and around. He saw Martin had been shot and told Rankin to take his son to the hospital. Sibley stated that he never intended to shoot or harm Rankin; he only wanted to scare him. According to Sibley, he did not ...