Appeal from the Circuit Court of Perry County and the Circuit
Court of Randolph County; the Hon. William D. Starnes and the
Hon. Carl Becker, Judges, presiding.
JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1985.
Defendant, Kenneth W. Hanson, was convicted after a jury trial in the circuit court of Perry County of armed violence and aggravated battery. Defendant was sentenced only on the armed violence conviction, with the court assessing punishment at eight years' imprisonment.
On appeal defendant contends (1) the State failed to prove beyond a reasonable doubt he did not act in self-defense, (2) the court erred in excluding testimony of three defense witnesses regarding prior violent acts of the victim, (3) the court erred in denying his motion in arrest of judgment on the armed violence count, (4) the court erred in ruling defendant could be impeached with prior acts which did not result in convictions for any impeachable offense, (5) the State failed to prove venue, (6) reversible error resulted from several statements by the prosecutor, (7) the court erred in allowing aggravated battery to be used as a predicate felony for the charge of armed violence where no premeditation to use a weapon was involved, (8) the court erred in refusing instructions regarding a victim using force to prevent commission of a forcible felony, (9) the court erred in refusing instructions regarding possible hesitation between shots fired by defendant in self-defense, (10) the court erred in denying defendant's motion for mistrial based upon the State's violation of an order in limine, and (11) the court erred in denying a motion for new trial based upon the discovery of new evidence.
Defendant also has appealed an order of the circuit court of Randolph County dismissing his petition for writ of habeas corpus. That petition alleged the armed violence charge was void because of double enhancement. This is the same argument made in defendant's third contention.
For the following reasons, we reverse the judgment and sentence for armed violence, reverse the conviction for aggravated battery and remand for further proceedings.
This case arose out of a confrontation at a bar in Willisville on November 26, 1982. George Whitehurst testified he arrived at Mary's Tavern around 7:30 p.m. after having been drinking earlier at another local bar. He entered Mary's Tavern, sat down, and ordered a beer. He asked a woman tending bar if Ken, the defendant, who was an employee of the bar, was around. Whitehurst told the woman, "I wanted to talk to him about why he pulled that shot gun on me a while back." The bartender said she didn't want any trouble, and Whitehurst said he just wanted to talk to defendant.
Whitehurst then went to a game room at the bar. He testified that he exchanged greetings with defendant, then said to him, "Ken, I want to talk to you. Why did you pull that shot gun on me before?" Whitehurst testified that defendant replied, "Did you come here looking for trouble?" Whitehurst said, "No, I just come here to ask you. I never done you any wrong. Why did you pull that shot gun on me?" Defendant replied, "Yeah, you come in here looking for some, and I can give it to you."
Whitehurst testified that defendant then started toward the bar, and Whitehurst thought he was going for a gun. He grabbed the defendant and they scuffled. Defendant broke free from Whitehurst and went back to the bar. Whitehurst returned to where he had left his beer.
Whitehurst further testified he and defendant later exchanged words when defendant was at a point directly across from where Whitehurst was drinking his beer. Whitehurst said to defendant, "Ken, I guess you know if I ever catch you out of here I am going to whip you for pulling that shot gun on me." Defendant said, "No, what's going to happen is, you are going to keep talking and things are going to get worse here tonight." Whitehurst then testified he told defendant, "No, I didn't think so. Because I thought he was too much of a coward. He wouldn't pull a gun to start off with. And I would whip him like a step-child if I ever caught him out." Whitehurst testified the defendant then said, "Why don't you come back here and do it then." Whitehurst responded, "By God, I can." Defendant said, "Well, do it." Whitehurst replied, "All right."
Then Whitehurst began walking toward an opening with swinging doors in the other end of the bar, with defendant walking toward the doors as well. The two walked parallel to each other, with defendant behind the bar and Whitehurst on the customer side. When Whitehurst got to the opening in the bar, defendant shot him. After the first shot, Whitehurst turned to walk out of the bar, but was shot two more times, the last shot entering him from his back behind his left shoulder.
Whitehurst testified he had no weapon on the night of the confrontation, although he later stated he always carried a knife. He also stated he only intended to hit the defendant, and did not intend to cause any permanent disability. He said he would have hit defendant only once and then stopped if defendant had not resisted.
The foregoing evidence was the testimony of Whitehurst.
Witnesses in the bar confirmed that defendant and Whitehurst had argued and scuffled and that defendant later shot Whitehurst three times. The witnesses gave varying stories about the details of the events prior to the actual shooting. Several witnesses testified they saw no weapon carried by Whitehurst at the time of this incident. However, Shirley Bitner, a waitress at the bar, testified that Whitehurst told defendant he would cut his throat. Venesa Pestka, who also worked at the bar, said she heard Whitehurst say something like he was going to cut defendant's head off. A bar patron, Jacob Qualls, also said he heard Whitehurst say something about stabbing or cutting up defendant. Other witnesses did not hear these comments.
There was conflicting evidence regarding a hesitation between the three shots. Bar patron Robbie Dintelman and waitress Bitner testified there was no hesitation. Whitehurst's testimony and the evidence of where the shots entered his body indicate at least some hesitation between shots.
Other testimony indicated defendant had told bar employees to call the police before the shooting occurred, and that defendant had told Whitehurst several times to leave the bar prior to the time the shooting occurred. One witness heard defendant say, "Stop or I'll shoot," to Whitehurst, while others did not hear such a warning.
We first address defendant's third issue raised on appeal which is identical to his argument in his habeas corpus petition. He contends his motion in arrest of judgment should have been granted because the armed violence charge was based on the predicate felony of aggravated battery by way of use of a deadly weapon. He contends this constituted double enhancement, because a gun was used not only to raise the misdemeanor of battery to the felony of aggravated battery, but also to raise aggravated battery to armed violence.
Defendant relies on People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627, where the court, discussing a charge of armed violence, defined by section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), stated:
"Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a ...