Appeal from the Circuit Court of Cook County; the Hon.
Lawrence I. Genesen, Judge, presiding.
JUSTICE SCARIANO DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 20, 1986.
Following a jury trial, defendant-appellant Charlene Eure was convicted of the offenses of aggravated battery (based on the use of a deadly weapon in the commission of a battery) (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(1)); aggravated battery (based on conduct causing great bodily harm) (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(a)); and armed violence (based on the latter aggravated battery) (Ill. Rev. Stat. 1981, ch. 38, par. 33A-1 et seq.). Judgment of conviction, however, was entered only as to the armed-violence count, as the trial court deemed the remaining charges to have merged with the armed violence. Defendant was thereafter sentenced to the minimum jail term of six years' incarceration. (Ill. Rev. Stat. 1981, ch. 38, pars. 33A-3(a), 1005-8-1(a)(3).) We affirm.
Defendant's appeal raises four issues: (1) whether the armed-violence conviction may stand in light of the Illinois Supreme Court's decisions in People v. Alejos (1983), 97 Ill.2d 502, 455 N.E.2d 48, and People v. Fernetti (1984), 104 Ill.2d 19, 470 N.E.2d 501; (2) whether the trial court's apparent failure to give the jury the definition instruction on the aggravated battery/use of a deadly weapon charge, in addition to the issues instruction on that offense, prejudiced the defendant; (3) whether the trial court abused its discretion when it refused defendant a midtrial continuance; and (4) whether the State's closing argument was improper and prejudicial. Resolution of these issues requires a detailed account of the evidence adduced at trial.
The incident arose out of an altercation involving the defendant, Michelle Silas, and Silas' companion, Bolton Linton. The incident occurred at the New Look Lounge, a restaurant and tavern. Eure arrived at the lounge at approximately 1:40 a.m. on March 27, 1982. She seated herself at the bar, and ordered some food. Some time after 2 a.m. (the bar's closing time), Silas and Linton entered the bar and went to the disc jockey's table, where they spoke to the disc jockey. Silas indicated that the disc jockey was her cousin. After speaking briefly to the disc jockey, John Wilson, Silas received permission to order some drinks. She then went up to the bar area, where she encountered Eure.
At this point, Eure and Silas began arguing and verbally abusing each other. The evidence is conflicting as to who initiated the argument; the parties, however, agree that during the argument Linton came up to the bar, the drinks were readied, and Silas and Linton walked back to Wilson's station with the drinks. Apparently, the verbal abuse continued as the rivals separated.
Linton testified that as he passed by Eure, he noticed that she had pulled a gun and was pointing it at Silas' back. Linton told this to Silas, who looked back over her shoulder at Eure. Eure, meanwhile, continued to threaten Silas. According to Linton, the owner of the lounge, Marcus Williams, went over to Eure and spoke to her for a while, and then walked away. Eure then continued to threaten Silas and point the gun at her.
Silas' testimony comported with that of Linton; she testified, however, that several minutes passed before Linton told her that Eure had a gun pointed at her. She also stated that this conduct continued for another seven to eight minutes.
Linton indicated that this state of affairs continued for five minutes, at which point he told Silas he would push her out of the way and try to disarm the defendant. Linton then pushed Silas down, turned, and went for the gun. Linton stated that as he rushed Eure, she shot him in the left chest area. Silas testified first that Eure shot Linton when he went for the gun; on cross-examination, she stated that Eure fired before Linton pushed her down.
After he was shot, Linton reached Eure and grabbed both the gun and Eure's hand. Eure was still seated at the bar, and the two began wrestling over the gun. During this encounter, the gun discharged three more times, and Eure was pulled from her seat to the floor. Linton finally disarmed Eure, after which he held the gun aloft, and turned it over to another patron of the lounge, who identified himself as a policeman. He told the officer he had been shot, and then he collapsed.
Both Linton and Silas claimed that the owner of the lounge and the officer refused to call an ambulance or direct Silas to the phone unless they agreed to tell the police that the incident occurred outside the lounge. Linton and Silas agreed to do so, and an ambulance and the police were called. Linton was then taken to the hospital, where he had surgery for the gunshot wound and was hospitalized for 14 days. The treating physician stated that the bullet passed within "maybe less than one millimeter" of the heart.
Eure's version of the events differed from both Silas' and Linton's. She testified that she and Silas began arguing, and the owner came out and calmed everyone down. Linton came over to Silas, and it appeared to Eure that Linton was trying to calm Silas and "hold her back" from Eure. Eure stated that Silas nonetheless continued to call and threaten her, and she became frightened.
Eure acknowledged that she had a loaded gun in her purse at that time. She stated that she owned a liquor store, and had the gun for protection. She kept it with her rather than leave it at the store, where she had been prior to going to the lounge that night.
Eure had her hand in her purse during the altercation. Linton turned and lunged at her, grabbing her arm. Her hand then came out of the purse, with the gun. She fell from her chair to the floor, and she and Linton began wrestling. She heard the gun discharge once, and then felt three more shots in her foot. She was wounded from these later shots, and her shoe came off her foot as a result. She next recalled that the owner, Mr. Williams, and Mr. Taylor, a police officer, came out of the kitchen. Linton was still walking at that time, and Silas was still threatening her. Eure's foot was bleeding profusely, and she told the two men she was going to the washroom until the police arrived.
As a result of this incident, Eure was charged with two counts of attempt (murder), one as to Silas and one as to Linton; she was charged with two counts of aggravated battery of Linton, based on both use of a weapon and conduct causing great bodily harm; finally, she was charged with two counts of armed violence, one premised upon the attempt (murder) of Silas, one based on the aggravated battery/great bodily harm count as to Linton.
The armed-violence charge based on the attempt (murder) was dismissed by the State prior to trial. At the close of the State's case, the court directed a verdict in defendant's favor on the attempt (murder) count involving Silas. The remaining counts were submitted to the jury.
Prior to submission of the case to the jury, defendant requested a continuance to obtain testimony of two police officers. The officers had been served with subpoenas the day the trial commenced; defense counsel knew of the trial date five days prior to trial. The court denied the continuance, holding that the testimony of the officers was collateral, immaterial and cumulative of other evidence.
The trial court gave the jury the Illinois Pattern Jury Instructions (IPI), Criminal (2d ed. 1981) on the offenses, as follows:
"IPI No. 7.01 issues instruction on murder IPI No. 6.05 definition instruction on attempt (murder) IPI No. 6.07 issues instruction on attempt (murder) IPI No. 11.05 definition instruction on battery IPI No. 11.07 definition instruction on aggravated battery/great bodily harm IPI No. 11.08 issues instruction on aggravated battery; great bodily harm IPI No. 11.10 issues instruction on aggravated battery/use of a deadly weapon IPI No. 11.19 definition instruction on armed violence based on ...