Appeal from the Circuit Court of Cook County; the Hon. Robert
Sklodowski, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
In a bench trial, defendant, Vaughn Washington, appeals his convictions of murder and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a), 33A-2), and raises the following issues for review: (1) whether he was proved guilty of murder beyond a reasonable doubt; (2) whether attempted murder may be used as a predicate offense for a finding of habitual criminality; (3) whether the habitual criminal statute is unconstitutional; (4) whether the trial judge violated the habitual offender statute; and (5) whether the convictions and sentences for armed violence and murder must be vacated.
Defendant was indicted for the following offenses: the murder of Rudy Jones, the attempted murder of Leroy Martin, a police officer, armed violence against Jones and Martin, and unlawful use of weapons.
At the bench trial, Al Law testified that on February 22, 1981, at 8:30 p.m., he was in a McDonald's restaurant at 35th and Wabash Avenue in Chicago, Illinois. Law was waiting to be served when he observed a man, whom he later identified as defendant, walk behind the counter and toward the drive-up window. The man wore a tan trench coat and a brown tweed hat. Law saw nothing in the man's hand. When Law next observed defendant, he was "scuffling" with the security guard. He never heard the two men say anything. Law heard two shots, turned around and saw the two men still wrestling. The security guard tried to draw his own weapon but defendant had his hand on the security guard's arm, forcing the gun back into its holster. The defendant pulled a gun from his trousers.
While running out of the restaurant, Law looked back and observed that the two men were still scuffling. The security guard was partially on the floor; only his head was visible above the counter. Law then saw defendant standing over the guard as though shooting down at him; there was a gun in defendant's hand. After Law heard another three shots fired, he no longer saw the security guard's head. From a gas station, Law telephoned the police who came immediately. Law saw defendant running down the street. When the officers exited their automobile, Law heard more gunshots. The officers had not drawn their weapons. Law saw defendant shoot at the officers three times; they returned the fire twice. Law went back into the restaurant and saw the guard lying behind the counter. During the struggle, Law never saw the security guard with a gun in his hand.
On cross-examination, Law was asked whether he heard shots during the struggle between defendant and the security guard. He answered in the affirmative. Then he was asked whether that was when he noticed the gun in defendant's hand. Law said that he saw defendant pull his gun earlier. Law also testified that he heard shots before the security guard drew his weapon. After Law ran out of the restaurant, he saw defendant standing over the security guard and firing down at him. During the incident, Law heard two shots and later three more shots.
In February 1981, Nolan Humphries was the manager of a McDonald's restaurant. He testified that on February 22, 1981, at about 8:30 p.m., he went to the McDonald's restaurant at 35th and Wabash to return an item he had borrowed. While talking with the manager in the rear of the building, another employee informed them that a man was behind the counter. Humphries looked around, heard two shots and went to the front of the restaurant. He saw defendant struggling with someone. Humphries heard another shot and eventually ran out of the restaurant but returned when police arrived. He then heard at least two shots coming from the rear of the restaurant but did not see who was firing. When Humphries re-entered the restaurant, he saw the security guard. There was no weapon in his hand or in his holster. On cross-examination, Humphries stated he never saw a weapon in defendant's hand.
Vernita Fields, a McDonald's employee, was taking customer orders on February 22, 1981, at about 8:30 p.m. She turned around and saw a person in a beige coat and tweed hat "tussling" with the security guard who was in the drive-up window area. The man in the coat did not have a gun in his hand. She did not previously hear any loud words or argument. She heard a shot and fled to the basement, where she remained until police arrived. While in the basement, she heard two or three more shots.
Pamela Cureton, a Chicago police officer, was on patrol with her partner, Leroy Martin, in the vicinity of the McDonald's restaurant in the evening hours of February 22, 1981, when a citizen informed them of the incident in question. When the officers arrived at McDonald's, Cureton saw a man running through a parking lot. She did not see anything in his hands. Cureton and Martin shouted to the man to stop and identified themselves as police officers. The man turned around and fired at Martin who returned the fire. Cureton radioed for help. Martin and defendant exchanged gunfire a second time. When another police car approached, Martin knocked defendant to the ground.
Leroy Martin, a Chicago police officer, corroborated Cureton's testimony. However, he stated that defendant fired at him three times. When he apprehended defendant, the latter had a .38 caliber revolver. Defendant sustained gunshot wounds, but they were not caused by Martin's revolver.
The prosecution introduced a stipulation that the security guard who was killed was Rudy Jones, and then rested.
Defendant presented the following stipulations: a blood test taken on February 23, 1981, at 5:40 a.m., at Cook County Hospital revealed .27 milligrams of ethanol in defendant's blood; on February 22, 1981, defendant sustained two gunshot wounds, one in the right chest and another to the liver; three .38 caliber pellets were removed from the body of Rudy Jones, one from the right chest and two from the right leg; two bullets were fired from a .38 caliber Taurus revolver and the third bullet was fired from a .38 caliber Smith and Wesson. The Taurus revolver was recovered by Officer Martin from defendant and was registered to Rudy Jones. The Smith and Wesson was recovered from the floor near the drive-up window of McDonald's and was unregistered. The defense then rested.
After closing arguments, the trial court found defendant guilty of murder and armed violence, and not guilty as to all other charges. Defendant was sentenced to a term of natural life. He appeals.
• 1 The first issue raised by this appeal is whether defendant was proved guilty of murder beyond a reasonable doubt. Defendant argues that the evidence in this case supports, at best, a finding of voluntary manslaughter. Defendant walked behind the counter of the restaurant, a struggle ensued between him and the security guard, and both men were shot. Two of the three bullets recovered from the victim's body were from his own gun. Defendant argues that this evidence supports an inference that he reasonably believed deadly force was necessary to prevent imminent death or great bodily harm to himself. No evidence suggests that he entered the restaurant for an unlawful purpose or that he was the aggressor in the incident. Evidence of mutual combat also supports a finding that defendant was guilty only of voluntary manslaughter ...