Appeal from the Circuit Court of Cook County; the Hon. John J.
Crowley, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of two counts of attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 9-1) and two counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a)), and sentenced to 12 years' imprisonment. On appeal, defendant contends that: (1) the State produced insufficient evidence to establish his guilt beyond a reasonable doubt; (2) the trial court erroneously instructed the jury concerning the elements of attempted murder; (3) the State injected improper testimony and improper comment violative of his right to a fair trial; (4) the trial court erroneously entered judgment on the lesser-included offense of aggravated battery; and (5) the sentence was excessive. For the reasons stated below, we affirm in part and vacate in part.
The following facts were adduced at trial. At 8:30 p.m. on Sunday, May 17, 1981, a group of young men were playing dice on the sidewalk outside a tavern located on the northeast corner of Huron and Avers streets in Chicago, Illinois, when gunfire from an automobile struck two of the young men. Rodney Harper suffered a bullet wound to the head, and awoke from a months-long coma unable to walk or talk; 16-year-old Kenneth Martin suffered multiple bullet wounds to his arm and chest, and at the time of trial, a bullet remained lodged in his body. The victims testified that they did not see who shot them.
Marion Carney was an area resident and army reservist in May of 1981; he was a private on active duty at the time of trial. Sunday evening, May 17, 1981, Carney spoke with friends inside the tavern for 10 or 15 minutes, bought a quart of beer, and left. Outside the tavern, he observed a four-door automobile with four occupants stopped in the street near the dice game. Carney testified that he recognized the rear passenger side occupant, whom he had seen several times before, and identified that occupant as the defendant. Defendant asked where he could buy some "reefer," and when no one responded, asked again. One of the group on the corner then responded, and defendant asked twice for more specific directions. Carney testified that after this exchange, defendant conversed with other occupants of the car for 10 or 15 seconds, called out to the group on the sidewalk, made a sign representing the Vice Lords street gang, and opened fire with a handgun. Joined by the front seat passenger, they fired about nine shots and drove away.
Carney called the police, and immediately named and described defendant. He also described the front seat passenger as a 23- or 24-year-old male, dark complected, with a moustache and beard. Although he saw the faces of all four occupants, he recognized only defendant. Carney identified defendant in a photographic array that night, and picked defendant out of a lineup at 4:15 a.m. the morning of May 19, 1981. On cross-examination, Carney denied membership in any gang.
Chicago police detective James Dwyer testified that Marion Carney identified defendant in a lineup. Officer John Patton stated that he arrived at the scene of the shooting one minute after a radio call, and that the scene was illuminated by three lighted tavern signs and by a street lamp located on the northwest corner of Huron and Avers streets.
Detective James Cornelison testified that he went to the corner of Huron and Avers on May 17, 1981, and that when he arrived it was night. He characterized the lighting as "good," and stated that the corner was lit by a street lamp and a sign. Cornelison stated that he spoke with Marion Carney and "another witness who didn't wish to give his name." The trial court overruled defendant's objection, but warned that it would sustain objection to any statement made by the unnamed person. Cornelison indicated that he, Marion Carney, and the unnamed witness went to 620 North Kedzie, then to the 500 block of North Kedzie, where Cornelison noted the license and registration numbers of an automobile in an empty lot. He then left the unnamed witness near the scene, took Marion Carney to police headquarters, and presented Carney with the photographic array.
On cross-examination, Cornelison stated that the automobile in the vacant lot did not fit the description of the car involved in the shooting. Defendant asked four questions about the "unidentified individual," inquiring whether the detective habitually had unidentified people in his car. On redirect, the trial court overruled defendant's objection and permitted Cornelison to testify that the unidentified person was afraid to give his name.
The defendant's case consisted of four witnesses. Defendant called Chicago police detective James Dwyer, who testified that defendant had given him an alibi, but that he had been unable to confirm it. Mary Bryant, defendant's mother, stated that defendant had said that he would be at Denise's house on Sunday, May 17, 1981. She indicated that after defendant's arrest, she tried to find Denise's house at 1014 North Cleveland, but finally discovered at at 1410 North Cleveland.
Jessie Holliman testified that her daughter, Denise, was defendant's girlfriend, and that defendant spent Sunday, May 17, 1981, between 5:00 and 10:30 p.m. with her family at 1410 North Cleveland. Henry Holliman, Denise's father, corroborated this alibi testimony. On cross-examination, the Hollimans admitted that they had been unable to recall the date of defendant's visit when interviewed earlier in the week by the assistant State's Attorney. Although the Hollimans knew soon after defendant's arrest that he was charged with a serious crime committed on May 17, 1981, they made no effort to contact the police or State's Attorney's office.
In closing arguments, the prosecution and defense agreed that the case turned on Marion Carney's identification. The prosecutor stated:
"You saw Marion Carney testify. The way he testified was straightforward. He was polite. He was an honest young man. That guy could not make up a story, come in and tell it straight a year later if his life depended on it."
Defendant's objection was overruled, and the prosecutor then reiterated his argument and concluded by attacking the credibility of the alibi witnesses. Defense counsel argued that the unidentified man in the police car was fabricated in order to bolster Marion Carney's identification and that the police helped Carney to identify defendant. During rebuttal, the prosecutor said:
"Mr. Burke also suggested to you that Detective Cornelison * * * somehow fabricated this unidentified person who he was driving around * * * [B]ut this is the west side of the City of Chicago. And when people go like this, people ...