Appeal from the Circuit Court of Cook County; the Hon. Edward
M. Fiala, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant, James P. Fieberg, was convicted of possession of burglary tools, attempted burglary, burglary, aggravated battery, and robbery but was acquitted of attempted murder. Defendant was sentenced to prison terms of three years for possession of burglary tools, three years for attempted burglary, seven years for burglary, five years for aggravated battery, and an extended term of 14 years for robbery. The aggravated battery sentence was made consecutive to the robbery sentence. In addition the trial court specified that all these sentences would be consecutive to certain prison terms the defendant had been serving in Michigan before he escaped from prison, as well as being consecutive to any term the defendant might receive for escape in Michigan.
On appeal defendant contends (1) the trial court improperly instructed the jury that defendant had confessed to the robbery; (2) the trial court erred in finding that the robbery was accompanied by acts which were so exceptionally brutal or heinous as to be indicative of wanton cruelty and imposing an extended sentence on those grounds; (3) the trial court erred in sentencing defendant to consecutive sentences for aggravated battery and robbery when those two offenses arose from a single course of conduct with no change in defendant's criminal objective.
We affirm defendant's convictions but reduce his sentence for robbery and modify his sentence for aggravated battery to make it concurrent with the other sentences.
The pertinent trial testimony was as follows. Wilmette Police Officer Terrance Fitzpatrick testified that while on patrol on the evening of October 10, 1978, he observed the defendant standing behind the opened screen door of the alley entrance to a business located at 919 Ridge in Wilmette. The defendant walked past the officer's squad car, ignoring his orders to halt, and fled.
Shortly thereafter defendant was seen on the grounds of Mallinckrodt College by Wilmette Police Officer John Leydon, who also testified. Leydon repeatedly ordered the defendant to lie down but instead defendant began walking towards Leydon. Defendant told Leydon he would not stop, that he was afraid he was going to be hurt and only wanted to leave. He kept approaching Leydon, who kept backing away. Officer Fitzpatrick arrived at this point and successfully ordered defendant to stand up against a tree. Fitzpatrick approached defendant and attempted to force open one of his hands, which was formed into a fist. Defendant grabbed him and sprayed his face with a toxic chemical, apparently Mace. The chemical entered Fitzpatrick's eyes, causing them to burn, and also entered his nose and mouth, making breathing difficult. Fitzpatrick buried his head in defendant's stomach and grabbed his legs in order to bring him to the ground. Defendant reached over Fitzpatrick's back and removed the officer's gun from its holster. Fitzpatrick heard two shots as he fell to the ground; it was his belief from the feel of defendant's arm on his back that those shots were fired at Officer Leydon. Officer Leydon testified that those two shots were fired at him as he stood about six to eight feet away but both shots missed him. Fitzpatrick testified that at this point he grabbed defendant's gun-hand by the wrist and with his other hand grabbed the barrel of the gun. Defendant, with his finger on the trigger, kept bringing the gun down in the direction of Fitzpatrick's face. Fitzpatrick saw that defendant was pulling the trigger back and so made a jerking motion which moved the barrel back over his head. Defendant pulled the trigger and the gun went off. Fitzpatrick hit defendant twice in the face as hard as he could. Defendant got up with the officer again holding on to party of the gun. According to Fitzpatrick defendant kept pointing the gun down at Fitzpatrick's face with his finger on the trigger. Fitzpatrick again pushed the gun up and defendant fired it. At this point the gun was about 18 inches from the officer's face. Fitzpatrick kicked defendant in the groin and defendant broke loose and ran. Fitzpatrick, who had rolled away, heard eight to 10 shots. He initially joined in the chase but had difficulty seeing and was taken to the hospital. He testified that in addition to the spraying of his face he injured the knuckle and one finger of his left hand during the struggle for the gun. On cross-examination he admitted that in testimony before the grand jury he stated that defendant fired two shots at Leydon, two shots at him, and then, as defendant fled, two shots at both officers. He conceded that in fact he did not know if defendant fired more shots after the first four.
Officer Leydon testified that after defendant fired the first two shots at him he lay in the grass where he could not see the struggle. He heard two more shots and then saw defendant backing away with the gun in his hand. Defendant fired once in Leydon's direction and then ran. Leydon got up and fired six shots at the fleeing defendant. He conceded on cross-examination that he had erroneously stated in a police report that defendant fired two shots at him as defendant fled.
Defendant was captured by other police officers in the area. He was found to be carrying $9.50 in quarters, $2.20 in dimes, $1.25 in nickles, and two single dollar bills as well as a roll of 10-cent stamps and a left-hand glove. The coins and stamps were determined to have been taken in the burglary of a store at 915 Ridge. At the store police found a pair of vise grips locked on the alley door. On the ground they found a metal pry bar and a metal retaining ring from the door lock. At the store located at 919 Ridge part of the door lock was found on the stoop. Face plates from the doors of both stores were also found in the area.
The police also searched the area where the struggle took place and located Officer Fitzpatrick's gun with five of the six bullets discharged. Also in the area they found a screwdriver, a can of Mace, and a right-hand glove. The left-hand glove recovered from the defendant was found to contain certain substances commonly left by the firing of a gun. No such substances were found on Officer Fitzpatrick's shirt or jacket.
Defendant took the stand and admitted to having burglarized the business at 915 Ridge and attempting to burglarize the business at 919 Ridge. He admitted to having used the vise grips and also to possessing the pry bar, screwdriver, and gloves. His account of the encounter with Officers Leydon and Fitzpatrick was substantially similar to their accounts with the following important differences. When he removed the gun from Fitzpatrick's holster he fired it into the ground with the intent of scaring the officers so he could escape. He did not even see Officer Leydon after he sprayed Fitzpatrick with Mace. After firing the first two shots he was knocked to the ground and Fitzpatrick grabbed the gun in the manner he had described. The gun discharged twice as Fitzpatrick yanked it in different directions. Defendant was not trying to point it at Fitzpatrick. Defendant then got up and was kicked in the groin at which point the gun again discharged. He then ran, discarding the gun, and climbed the wall of the college. He was arrested by other police officers in the area. Defendant denied ever intending to shoot and kill Leydon or Fitzpatrick.
• 1 We find no merit to defendant's contention that the trial court erred in instructing the jury that there was evidence that defendant had confessed to robbery. It is true, as defendant notes, that the robbery indictment specified that defendant had taken the gun "with intent of permanent deprivation," but this was mere surplusage. (People v. Simpkins (1971), 48 Ill.2d 106, 268 N.E.2d 386.) Intent to permanently deprive a person of the use of his property is not an element of the crime of robbery. (People v. Banks (1979), 75 Ill.2d 383, 388 N.E.2d 1244.) When defendant admitted that he had taken the gun from Officer Fitzpatrick during their struggle he confessed to having committed a robbery. Indeed it is noteworthy that at trial defense counsel, in closing argument to the jury, also conceded that defendant had admitted committing the robbery. Thus the trial court did not err in so instructing the jury.
We next consider the propriety of the 14-year extended-term sentence imposed on defendant for robbery. Section 5-8-2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. ...