Appeal from the Circuit Court of St. Clair County; the Hon.
William B. Starnes, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of St. Clair County, the defendants, Christopher Chrisos and Michael Chrisos, were found guilty of armed violence. On appeal, the defendants contend that: (1) they were not proved guilty beyond a reasonable doubt of armed violence; (2) they were denied effective assistance of counsel; and (3) the trial court erred in not appointing other counsel for them at their post-trial proceedings. We affirm.
Prior to trial, the defendants filed a motion for a bill of particulars requesting that the State describe the category of the alleged dangerous weapon, the size, shape, and length of the alleged dangerous weapon. Further, the defendants requested the facts relied upon by the State in considering this dangerous weapon within the scope of the armed-violence statute.
In orally responding to the defendants' motion for a bill of particulars, the State described the dangerous weapon as a "shard of glass which would fall under the category weapon of category 1 offense indicating objects of a sharp nature such as a knife, dagger, that type of thing under Chapter 38, Section 33A." The State further described the weapon as triangular in shape and at least 10 centimeters in length.
At trial the victim, Baboucar Njai, stated that in the early morning hours of October 11, 1985, Michael Chrisos stopped by his place of employment and invited him over to his trailer after work. When Njai arrived, Christopher Chrisos first attacked him with a motorcycle chain which he had wrapped around his hand. After Njai was able to disarm Christopher, Christopher then grabbed a billy club and struck Njai. Again, Njai was able to disarm Christopher. However, Michael then grabbed Njai from behind, and Christopher rushed at Njai with a piece of glass. Christopher eventually stabbed Njai on the left side of the neck causing a wound of 10 centimeters in depth. After the police arrived, Njai was rushed to Scott Air Force Base, where he received four hours of emergency surgery.
At trial, Njai described the piece of glass as tapered on the sides with two to three inches exposed from the "handle" that Christopher had fashioned with a piece of cloth.
Dr. Jana Bronfman, emergency room physician, stated at trial that she did not measure the depth of Njai's wound because she thought it would be life threatening. However, she stated that according to the measurements of the other treating physicians noted in the hospital records, the wound was 10 centimeters deep.
• 1, 2 The defendants' first contention on appeal is that the State failed to prove beyond a reasonable doubt that the piece of glass was a dangerous weapon within the armed-violence statute. Their argument concerns the construction of sections 33A-1 and 33A-2 of the Criminal Code of 1961, which provide, respectively:
"Definitions. (a) `Armed with a dangerous weapon.' A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about hs person or is otherwise armed with a category I or category II weapon. (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character. * * *" Ill. Rev. Stat. 1983, ch. 38, par. 33A-1.
"Armed violence Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." Ill. Rev. Stat. 1983, ch. 38, par. 33A-1.
In the recent case of People v. Hall (1983), 117 Ill. App.3d 788, 453 N.E.2d 1327, cert. denied (1984), 467 U.S. 1228, 81 L.Ed.2d 878, 104 S.Ct. 2683, the court found that a knife with a blade of at least three inches was a per se deadly weapon within section 33A-1. (Ill. Rev. Stat. 1983, ch. 38, par. 33A-1.) However, the court also stated that a knife with a blade less than three inches in length could be dangerous if it is used in a manner dangerous to the physical well-being of the victim. In applying the facts particular to this case to the Hall decision, the State proved beyond a reasonable doubt that the defendants used a dangerous weapon in a manner dangerous to the physical well-being of Njai.
At trial, the State presented evidence that the piece of glass was triangular in shape and with a blade of at least two to three inches in length and was subsequently used to stab Njai, causing him great bodily harm. Furthermore, from the evidence adduced at trial, the jury could reasonably infer that the piece of glass was a dangerous weapon such as an instrument of like character to a knife with a blade of at least three inches or a dagger. Also, the testimony at trial proved that the weapon fell within the definition of the weapon in the charging instrument and the bill of particulars.
However, the defendants specifically allege that the State did not prove that the piece of glass was "an instrument of like character" such as a "knife with a blade of at least 3 inches in length." (Ill. Rev. Stat. 1983, ch. 38, par. 33A-1.) In arguing their point, the defendants rely on People v. Cleveland (1980), 83 Ill. App.3d 675, 404 N.E.2d 876. Under Cleveland, the defendants argue that since the function of a bill of particulars is to limit the evidence which the prosecutor may introduce, the State was limited to proving that the piece of glass was an instrument of like character to a knife with a blade of at least three inches.
• 3 The purpose of a bill of particulars is not only to limit the State's introduction of evidence but also to supplement a sufficient indictment in order to inform the defendant in detail the nature of the charges against him and to enable the defendant to present his defense. (People v. Steele (1984), 124 Ill. App.3d 761, 765, 464 N.E.2d 788, 792.) Also, a bill of particulars cannot expand the charging instrument. (People v. Steinmann (1978), 57 Ill. App.3d 887, 897, 373 N.E.2d 757, 764.) Furthermore, where there is a minor inconsistency between the proof elicited at trial and information contained in the bill of particulars, it does not amount to a fatal variance. (People v. Martin (1983), 115 Ill. App.3d 103, 107, 449 N.E.2d 1039, 1041.) This ...