Appeal from the Circuit Court of Vermilion County; the Hon.
James K. Robinson, Judge, presiding.
JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
The defendants, Jerome Givens, Carl Givens, and Aaron Beard, were charged with aggravated battery causing great bodily harm, attempted murder, and armed violence. A jury acquitted them of the armed violence and attempted murder charges, but found them guilty of aggravated battery. The trial court sentenced Carl to seven years' imprisonment, Beard to five years' imprisonment, and Jerome to 30 months' probation. The court also ordered Jerome and Beard to pay restitution to the victim. The defendants appeal their convictions and sentences, contending: (1) A fatal variance between the pleadings and proof requires reversal; (2) the jury's verdicts were legally inconsistent; (3) the trial court erred in admitting a handgun into evidence; (4) the admission of testimony concerning Beard's post-arrest silence violated both Federal and State constitutional provisions; (5) the trial court erred in excluding evidence of the victim's drug usage; and (6) their sentences were unjustifiably disparate from each other with respect to incarceration, probation, and restitution.
At trial, Gary Bolden testified he knew all three defendants. On November 7, 1983, he was drinking at Jimmy Harold's tavern. When the bar closed, he went to an alley behind the bar and saw the three defendants drive up in a car. He talked with them for 15 to 20 minutes, and then the four of them left in the car. The defendants were drinking wine from a bottle. Bolden did not drink anything after leaving the bar. He did not believe he was intoxicated. Bolden wanted a ride home, but the defendants wanted to go to another bar.
During the ride, Carl asked Bolden to give him a .357 magnum that he thought Bolden had. The gun belonged to William Morris, a friend of Carl's, and had been taken from Morris during an altercation involving Bolden. Bolden denied having the gun. Carl stated that he had his gun with him. Carl got out of the car and invited Bolden to fight. Bolden waited for Carl to come back into the car, then Bolden got out. He headed for his house, but when he got in front of it, the car pulled up across the street. Carl got out and grabbed Bolden. Bolden struck him and Carl fell down, but he got up again and grabbed Bolden. Bolden hit him again and knocked him down. Beard and Jerome got out of the car. Beard grabbed Bolden from behind, and Jerome blocked the path to Bolden's house. Jerome kicked Bolden once and Beard hit him in the face twice. Bolden then felt a blow to his right eye. He though Carl had landed a "lucky punch." The three defendants then left. Bolden went to a neighbor's house and was taken to the hospital.
Bolden admitted he had used cocaine and heroin since 1979. He testified his drug usage varied between every other week and once a month. He denied being under the influence of drugs on November 7. He testified he had last used either cocaine or heroin a couple of days before the incident. He admitted he had told hospital personnel that he had not taken any narcotics for a week prior to the incident.
Gail Pearl observed the scuffle as she drove by it. She saw Jerome standing in the area. She also heard a noise, which she described as a "pop."
Dr. Michael Meinzein treated Bolden at the hospital. He described Bolden as uncommunicative and combative. Bolden told a nurse that he had been beaten up. X rays revealed the presence of a foreign object near the right eye socket. Meinzein believed the object entered Bolden in the area above the eyebrow. Meinzein could not say whether the object was metallic. Bolden's blood alcohol level was .14%. Tests also revealed the presence of both marijuana and cocaine in Bolden's urine, but the test could not reveal when those substances had been ingested.
Danville police officer Brent Young talked to Bolden at the hospital. Bolden initially told Young that he had not been shot. He also told Young that Jerome had just stood back and laughed during the fight. The next day, other Danville police officers went to Jerome's residence. No one answered the door when they knocked, but the officers heard movement inside. After about one hour, Jerome and Beard came to the door and were arrested. A search of the car driven by the defendants revealed an empty wine bottle. Inside the house, police found a white jacket soaking in a bathtub. The jacket had red stains on it. Police also found a .22-caliber pistol underneath a crockpot on the back porch. Officers Frank Christian and Keith Garrett attempted to unload the gun. They discovered the firing pin was jammed, and it took much effort to get the gun apart. The cylinder in the handgun spun freely, and Garrett did not believe the firing pin had been made for that gun. The gun contained two spent rounds and three live ones.
Christian and Garrett also interviewed Beard and Jerome that afternoon. Garrett told Beard that he was going to read him his Miranda rights. Beard, however, stated that he did not want to talk to the officers, and that he knew nothing about anybody named Gary Bolden allegedly being shot. Givens, after being read his Miranda rights, stated he did not know anything about the incident because he had been home all night. Jerome also told the officers that he had been in the basement when the officers arrived, and he had gone outside after seeing the officers. On December 1, 1983, Carl was arrested in Kansas City. He gave the name of Floyd Jones to police officers when arrested.
The handgun was introduced into evidence over the defendants' objections. Edward German, a forensic scientist and fingerprint specialist, testified that none of the prints taken from the gun were the defendants'. He described the gun as very shiny, like a mirror.
Rory Steidl, a Danville police officer, testified that he spoke with Gary Bolden on November 15, 1983. Bolden told him that he and another man had disarmed William Morris. Bolden also stated Jerome Givens had been present during the fight, but that he could not remember if Jerome had kicked him. While on the way to the hospital on November 7, Bolden had told Steidl that Jerome had kicked him. William Morris testified that during an earlier altercation, Bolden had taken a .357 magnum from him. Priscilla Givens testified that on November 7 Carl's nose and lip were bleeding. Priscilla, Audrey Beard Clay and Garrett all testified that Bolden did not have a good reputation for truthfulness and honesty and for peacefulness and law-abiding conduct.
All three defendants gave similar versions of the incident. The defendants testified they had known Bolden for a long time. That evening, they had gotten together and gone to Jimmy Harold's tavern at about 10 p.m. They did not see Bolden at the tavern. They first saw him as Bolden was walking down Williams Street toward his house at about 11 p.m. The defendants were parked in a lot across from Bolden's house. Bolden got into the car with the three men and for about half an hour the four men talked, listened to music, and drank. All three defendants described Bolden as being either drunk or high. Bolden asked Carl and then the other two if they wanted to purchase a gun from him for money or a combination of cocaine and money. The defendants told Bolden they were not interested in the gun, which Bolden told them he had taken from William Morris. Bolden angrily left the car and started walking toward his house. As the defendants began to drive away, Bolden flagged them down. Carl got out of the car to see what Bolden wanted. Carl testified Bolden asked him for money, and then hit him and kicked him when he refused. Beard and Jerome noticed Carl was doubled over. They then observed Bolden hit Carl, throw him to the ground, choke him, and pound his head on the sidewalk several times. Bolden said that he would kill Carl.
As Beard attempted to pull Bolden off Carl, Bolden struck him. Jerome stood off to the side and watched because he was on crutches due to having earlier lost his kneecap. Carl then rose and struck Bolden with his fist in retaliation. Neither Beard nor Jerome struck Bolden. Bolden was standing when the three men left and did not appear to be severely injured. All three defendants denied having a gun.
After the altercation, all three defendants went to Jerome's house. Carl stayed for a short while and then cleaned up and left. While Carl did not recall bleeding, Beard and Jerome testified that he had been. The next morning, Beard and Jerome were in the basement fixing the furnace. They went outside when they saw the police. Beard testified they did not go to the police in the first place because they were certain they would not be believed. Both Beard and Jerome believe that Bolden's reputation for truthfulness and honesty and for peacefulness and law-abiding conduct was not good. Jerome admitted to having a 1974 robbery conviction and a 1979 burglary conviction. Jerome also stated that he had not told Garrett that he had been home all night. Rather, he had stated that he knew nothing about the incident and that Beard had stayed all night at his house. Carl testified he did not report the incident and went to Kansas City after learning that Jerome and Beard had been arrested. He believed he would be unjustly charged and imprisoned for the incident. He used the name Floyd Jones when arrested because of his fear and his status as a parolee.
I. VARIANCE BETWEEN THE PLEADINGS AND PROOF
The defendants contend a variance between the pleadings and proof requires reversal of their convictions. The information filed against defendants charges them with aggravated battery by knowingly causing great bodily harm to Bolden in that they shot him in the head. The defendants maintain the State failed to prove a shooting occurred. They note Bolden neither saw nor heard a gun and thought Carl had gotten in a lucky punch. Bolden, however, testified he "didn't realize I was shot." He also testified Carl had said he had a gun with him. The defendants also note Dr. Meinzein could not identify the objection in Bolden's eye as metallic. Meinzein did testify that a foreign object entered Bolden in the area above the eye. The defendants further argue the jury's acquittal on the attempted murder and armed violence charges demonstrates that they believed no shooting occurred. The jury's findings on those charges could simply have been an expression of lenity. (People v. Barnard (1984), 104 Ill.2d 218, 470 N.E.2d 1005.) Contrary to the defendants' assertion, there was evidence of a shooting, and we need not decide whether the State proved a shooting beyond a reasonable doubt.
The defendants assert the allegation of a shooting was essential to the information. Essential allegations must be proved without variance. (People v. Mosby (1962), 25 Ill.2d 400, 185 N.E.2d 152.) In Mosby, the State failed to present proof of ownership of premises which the defendant allegedly burglarized. At that time, an allegation of ownership was indispensable in charging burglary. (People v. Rothermel (1982), 88 Ill.2d 541, 545, 431 N.E.2d 378, 380.) The defendants also cite People v. Bueno (1966), 35 Ill.2d 545, 221 N.E.2d 270, in which the supreme court reversed the defendant's conviction. He had been charged with delivery of narcotics to a police officer, but the proof at trial established only that he had sold narcotics to a co-defendant. The court decided the issue was not one of variance but whether the State had proved the charge set forth in the indictment. Bueno involved two separate offenses, one with which the defendant had been charged, and a second which the evidence indicated the defendant had actually committed. People v. Ritter (1980), 89 Ill. App.3d 113, 115, 411 N.E.2d 560, 562; People v. Kijowski (1978), 61 Ill. App.3d 809, 812, 377 N.E.2d 1324, 1326.
The defendants rely primarily on People v. Daniels (1979), 75 Ill. App.3d 35, 393 N.E.2d 667. In Daniels, a grand jury charged the defendant with armed robbery based on his taking money from the victim. On appeal, the court noted the State had not presented evidence that the defendant took money, and the only proof had concerned the taking of a watch. The court found the State had failed in its burden of proof by utterly failing to introduce proof to conform to the charge in the indictment. The court went on to reject the State's contention that the defendant had forcibly taken the watch. The court concluded the circumstantial evidence did not prove robbery beyond a reasonable doubt. Daniels, therefore, is a case where the State had failed to present sufficient proof of an essential allegation, the taking of property.
• 1 We have previously stated the presence or use of a weapon is not an element of aggravated battery causing great bodily harm. (People v. Decker (1984), 126 Ill. App.3d 428, 467 N.E.2d 366.) Immaterial matters or matters which may be omitted from an indictment without rendering it insufficient or doing damage to the material averments may be regarded as mere surplusage. When an indictment or information charges all of the essential elements of the offense, other matters unnecessarily added may be rejected as surplusage. (People v. Figgers (1962), 23 Ill.2d 516, 519, 179 N.E.2d 626, 627.) The State is not required to plead evidentiary details. (People v. Drink ...