Appeal from the Circuit Court of Tazewell County; the Hon.
Ivan L. Yontz, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 27, 1982.
On April 14, 1981, a Tazewell County grand jury indicted the defendant, William Lampton, for attempt (murder), armed violence (two counts), and aggravated battery (four counts). Trial was by jury. The jurors returned guilty verdicts on all armed violence and aggravated battery charges. Defendant was acquitted of attempt. Judgment was entered on the first armed violence count. Defendant appeals.
Were the prosecutor's opening remarks so prejudicial as to deny defendant a fair trial? Did the People prove guilt beyond a reasonable doubt? Did the trial judge err in aggravating defendant's sentence, as well as in the degree of punishment imposed? These are the issues in this appeal.
In sum, the People established the following facts. At 4:30 p.m., April 8, 1981, defendant, Edward Lavin, Tom Daly, Bob Ring, and John Cowan were quaffing beers in Gloria's tavern in Pekin. All these men worked together as tradesmen. Lavin and the defendant had known each other for 13 years as fellow union workers. The men continued drinking until about 8:30 p.m. Lavin and defendant began arguing over a work-related incident. Defendant popped Lavin in the chin with his fist. A grappling match ensued. Finally, the two were disentangled. Defendant got up to leave. When exiting, he said to Lavin, "We'll finish this outside later."
The others continued drinking. Thirty minutes later, the four men left the bar. They went into the parking lot to enter Mr. Ring's car. Mr. Lampton, loitering at the rear of the lot, shouted, "Lavin, I want to talk to you." Lavin told the others he was going to talk to Lampton and try and calm him down. He went over. As he did, Lampton shot him in the stomach with a pistol from a distance of three feet. Lavin fell to the ground. Defendant walked away. Cowan and Ring came to Lavin's aid. He told them Lampton shot him. Then, Lavin blacked out. The police arrived and took him to the hospital. A .38-caliber slug was removed from the victim's abdomen. A forensic scientist testified the slug was from a .38-caliber ammunition.
When Lavin was in the hospital he would not, at first, tell the police who shot him. After five or six days he finally told the police Lampton was his assailant. By then Lavin not only knew the extent of his injuries, but also had conferred with his attorney. When cross-examined, Lavin denied ever telling Cowan or Ring that he did not know who shot him. Also, he disclaimed telling police that on the night of the shooting he was shot as he entered an automobile in the parking lot.
The defendant presented the testimony of 13 witnesses. John Cowan's version of the shooting controverted Mr. Lavin's account. According to Cowan, Lavin was the first to leave Gloria's and he did so alone or with Mr. Ring. Mr. Ring did not testify. After his exit, Cowan heard what he thought was a car backfiring. He went outside. He found Lavin lying wounded in the parking lot. Cowan, as well as Tom Daly, testified they did not hear Lampton say to Mr. Lavin, "We'll finish this outside later." Also, Cowan stated that Lavin never told him he was going to talk to Lampton in the parking lot. Finally, Cowan declared, Lavin did not tell him that Lampton had shot him.
Police officer Terry Ziegenbein testified that on the night of the shooting Lavin said he did not know who shot him. This was corroborated by Pekin policeman Roger Davis and Nels Calbert, the emergency room physician who treated Lavin. Both Calvert and Ziegenbein did testify that Lavin was in a state of shock and experiencing pain due to his wound when they talked with him. Also, they said, Mr. Lavin appeared to be in control of his senses. Dr. Robert Gregorski testified that Lavin's blood alcohol count was 196 when he arrived at the hospital. Such a figure indicates that Lavin was either "drunk" or "under the influence of alcohol" depending upon Mr. Lavin's "experience" in drinking alcoholic beverages.
Pekin policeman Ted Hartman testified he seized a box of ammunition from defendant's truck and a .357 magnum handgun from defendant's home. The People's ballistic's expert, James Roberts, while testifying for the defense, stated the .38-caliber slug removed from the victim's body had not been fired from the seized pistol. Neither did the slug come from the seized ammunition. The weapon used to shoot the victim is not in evidence.
Mr. Lampton was the next witness. He denied shooting Mr. Lavin. He admitted fighting at the tavern. He explained that recently he was demoted at work and felt Lavin, as a fellow union member, should have spoken out against the job action, but did not. Apparently, such depreciated defendant's pride. After the fight, Mr. Lampton said, he went to the Crazy Horse Saloon in Bartonville, some 10 miles distant. He arrived at 9 p.m. and spoke with Robert Koeppel about a friend. Defendant drank some beer. He left and drove home, arriving around 9:30 p.m. Mr. Lampton was arrested in the early morning of August 9, 1981 by officer Craig Salmon. Officer Salmon said that when informed of the shooting, defendant said he never liked Lavin and if he was shot it could not have happened to a nicer person.
Robert Koeppel owns the Crazy Horse Saloon in Bartonville. Koeppel remembered talking with Lampton on that evening sometime between 5:30 p.m. and 9:30 p.m. Mrs. Lampton testified for the defense. She stated she was not sure when defendant came home on April 8, 1981. When he entered the home she did recall she was putting the couple's nine-year-old child to sleep. The child's usual bedtime was 9:30 p.m. Also, Mrs. Lampton said, to her knowledge, her husband owned only one handgun.
In rebuttal, Pekin policeman James Conover gave testimony. He said defendant told him that he did not know when he came home on the night of the shooting. And, Mr. Lavin said the $1700 found on his person when he was shot was money for a debt he had to pay in court on April 9, 1981. The police had recovered this money from the victim as well as four pills which the police determined were not controlled substances.
Finally, two stipulations were read to the jury. First, Tom Hines, another Pekin police officer, said that John Cowan told him that he never asked Lavin any questions when Lavin was lying wounded in the parking lot. This conversation with Officer Hines occurred on April 8, 1981. And, in testimony before the grand jury, ...