Appeal from the Circuit Court of Kane County; the Hon. John L.
Nickels, Judge, presiding.
PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After jury trial defendant, William Nally, was convicted of the offense of unlawful use of weapons (possession of a firearm in a place licensed to sell liquor) (Ill. Rev. Stat. 1983, ch. 38, par. 24-1(a)(8)). As the offense occurred within five years of defendant's release from the penitentiary, it became a Class 3 felony, and he was sentenced to an extended term of 7 1/2 years imprisonment. He appeals, contending (1) the evidence was insufficient to establish guilt; (2) the trial court erred in barring defendant from calling a witness and barring defendant from testifying to admissions of the witness; and, (3) that the sentence imposed was an improper double enhancement of a prior conviction and an abuse of discretion.
Defendant was tried twice on this charge as the first jury was unable to agree upon a verdict in the first trial and a mistrial was declared in September 1983. In the second trial held in December 1983, Kane County Deputy Sheriffs Kenneth Ramsey and Pete Burgert testified they, and other officers, entered the South End Tavern near Elgin at 10:30 p.m. on April, 23, 1983, to make a routine check for minors drinking. The officers were in uniform, and when they entered the bar they saw defendant, who was seated there between a man and woman, make furtive movements by placing his hands near his waist as if to remove something from it and then leaning towards the bar with his arms moving downward as he momentarily hunched over the bar. The officers then heard a "thunking" noise and defendant sat up straight on the bar stool. The other people at the bar sat still during this time with their hands on the bar. The officers immediately moved defendant from his stool and found a 9 mm. Smith and Wesson revolver, which was loaded with dumdum bullets, lying against the bar footrest in front of defendant's stool. Subsequent forensic examination of the weapons disclosed no identifiable fingerprints on it or the bullets. No other evidence was presented relating to ownership or possession of the gun.
The State and defendant stipulated that the tavern was duly licensed to sell liquor and that defendant, after having previously been convicted of a felony, had been released from the penitentiary on December 10, 1980, a time within five years of the present offense. See Ill. Rev. Stat. 1983, ch. 38, par. 24-1(b).
Defendant testified, denying he had ever seen or possessed the gun found in the South End Tap. He stated that shortly before his arrest he had experienced an "insulin reaction" and blacked out for a period of time (he requires two shots of insulin each day). Nally testified he did not remember the officers entering the tavern, but only that they grabbed him and accused him of having a gun. He stated the insulin reaction had started while playing pool and Carol Steffen, the bartender, had helped him to his seat at the bar and attempted to feed defendant a candy bar to aid his condition.
Carol Steffen and Mr. and Mrs. Jack Cobb, who were defendant's friends, testified he had suffered an insulin reaction that night and Steffen was trying to help him when the officers entered. None of these persons saw anyone in possession of a gun that night. Evidence was also presented that Jack Cobb had been previously convicted of felony theft and that when defendant left the tavern in custody of the officers he did not need assistance.
Before defendant testified, his counsel advised the trial court, in chambers, that he had subpoenaed and intended to call as a witness one Lloyd Greenley, a bar patron who had been sitting next to defendant when the officers entered. Counsel stated that Greenley had come to his office with defendant at some time prior to this trial and had told counsel that he was willing to testify that the gun found in the bar belonged to him. The State's Attorney suggested that the judge advise Greenley of his privilege against self-incrimination and the court did so. Greenley thereupon informed the judge that he had already retained a lawyer and had been advised by his counsel not to answer any questions "under the Fifth Amendment" and that he would invoke that privilege if called upon to testify as a witness. As a result, the trial court ruled, over defendant's objection, that the witness could not be called before the jury.
When defendant testified the following colloquy occurred in his cross-examination by the State:
"Q. [Prosecutor] And you asked them [the Cobbs] to testify in this case, right?
A. [Defendant] I have talked to them, yes.
Q. And the same would hold true for Mr. Greenley, correct?
A. I have talked to him, yes.
Q. And the other people in the bar that night were your ...