Appeal from the Circuit Court of Cook County; the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Reginald Bragg, was convicted of two counts of aggravated battery and one count of armed violence. The court entered judgment on the armed violence verdict, sentencing defendant to six years in the penitentiary. On appeal, Reginald contends (1) that he was denied his sixth amendment right to effective assistance of counsel by his attorney's failure to move to dismiss his indictment; (2) that the State failed to prove him guilty beyond a reasonable doubt; (3) that he was denied a fair trial by the prosecutor's improper remarks in closing argument; and (4) that the court abused its discretion by entering sentence on the armed violence verdict.
Officer John Shields of the Chicago police department testified that on the evening of February 5, 1980, he was on patrol with his partner, Officer Charles Edward, when he responded to a call for help at a bus stop at Homan Avenue and Roosevelt Road in Chicago. He saw the complaining witness, Linda Redmond, "hollering" and a police officer standing next to the defendant, Reginald Bragg. Shields saw an object in Reginald's hand. As Shields approached, he saw Reginald throw an object away. Shields later found a bluesteel .22-caliber revolver in the snow behind the bench at the bus stop. Linda told Shields she had been stabbed. Although a blade was recovered from Linda's abdomen, the rest of the knife was never found.
At a preliminary hearing on March 20, 1980, before Judge Gino DiVito, Reginald was charged with aggravated battery. Linda testified that she had been standing at the bus stop with Reginald, with whom she was not acquainted, when he grabbed her from behind and demanded that she kiss him. When she resisted, he stabbed her, and she called for help. Reginald testified that he had been standing at the bus stop with Linda when he merely asked her if she had seen the bus yet. She then, allegedly, pulled out a gun and he stabbed her. He threw the knife away. He testified that Linda threw the gun about 10 feet away. The court found no probable cause to charge Reginald with aggravated battery.
On July 1, 1980, the State brought charges before a grand jury. The assistant State's Attorney told the grand jury that Reginald was before them on the State's request for a reindictment; that although a previous grand jury had returned a true bill on charges of aggravated battery, armed violence and attempted murder, he had failed to inform the first grand jury that there had been a finding of no probable cause at Reginald's preliminary hearing on a charge of aggravated battery. Thus, it was necessary to seek a reindictment. The assistant State's Attorney then read into evidence the testimony of Shields before the first grand jury. According to this testimony, Reginald had stated that he grabbed Linda from behind. Linda pulled a gun on him. He knocked the weapon from her hand and then stabbed her, leaving the knife blade in her abdomen. Shields testified that the remainder of the knife was never found, but that he found a revolver behind a bench at the bus stop. A juror asked Shields whether the revolver had anything to do with the case. Shields responded that the revolver "checked clear"; it was not registered; and that he could not determine the owner of the revolver. The second grand jury returned a true bill on all charges.
At trial Reginald testified on direct examination that on February 5, 1980, he was on his way to visit his girl friend when he arrived at the bus stop where Linda was waiting. He asked Linda if she had seen the bus. She did not answer and when he looked to see if the bus was coming Linda pulled out a gun. Reginald testified that he grabbed it from her. He struggled with her and he threw the gun on the ground. They continued to struggle and Reginald pulled out his knife and stabbed her.
On cross-examination, Reginald testified that he threw the gun and knife away when he saw the police. He stated that he stabbed Linda after he had thrown down the gun.
Linda's testimony at trial was substantially the same as her testimony at the preliminary hearing.
The jury found Reginald not guilty of attempted murder; guilty of aggravated battery based on great bodily harm; guilty of aggravated battery based on the use of a deadly weapon; and guilty of armed violence. Sentence was entered on armed violence only. Reginald appeals.
Defendant first contends that he was denied the effective assistance of counsel because his privately retained attorney did not move to dismiss the indictment returned by the grand jury.
In People v. Talley (1981), 97 Ill. App.3d 439, 422 N.E.2d 1084, this court held that the test to determine competency of counsel, whether appointed or privately retained, should be whether counsel was actually incompetent, resulting in substantial prejudice to defendant, without which the result of his trial would have been different. 97 Ill. App.3d 439, 443.
In the instant matter, Reginald asserts that his attorney erred in not moving to dismiss his indictment following two alleged instances of false testimony before the grand jury. First, Shields' testimony before the first grand jury, as read to the second grand jury, was that following Reginald's arrest, Reginald stated that he grabbed Linda Redmond from behind before she pulled a weapon on him, and that he stabbed her after knocking the weapon from her hand. At the preliminary hearing, on the other hand, Reginald stated that Linda had pulled out a gun without provocation as they waited at the bus stop. They struggled, and after Linda dropped the gun Reginald stabbed her.
The other instance complained of was that, when asked by a member of the grand jury whether the revolver found behind the bench at the bus stop had any connection to the case, Shields replied that he had ...