APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
513 N.E.2d 921, 160 Ill. App. 3d 858, 112 Ill. Dec. 312 1987.IL.1256
Appeal from the Circuit Court of Cook County; the Hon. Earl Strayhorn, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a bench trial defendant was found guilty of attempted murder, armed robbery, and unlawful restraint and was sentenced to serve eight years in the Illinois Department of Corrections. He appeals urging the following: (1) there were improper restrictions placed upon the scope of his cross-examination of the State's complaining witness; (2) evidence which tended to establish that he was not responsible for the crime was improperly excluded; (3) the prosecutor's comments during closing argument were improper and prejudicial; (4) his conviction for armed robbery was grounded on a defective information which was materially altered without reverification shortly before trial, thereby resulting in prejudice; (5) his armed violence conviction must be vacated because he was improperly convicted of both armed violence and the predicate offense of attempted murder; and (6) the trial court erred in denying his section 2-1401 (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401) petition.
We reverse and remand for a new trial.
The following facts are pertinent to our Disposition of this cause.
On August 31, 1984, defendant was charged by information with attempted murder, attempted robbery and armed violence against James Hope. On January 15, 1985, the State was permitted, over objection, to amend the information, without reverification, to include an armed robbery in place of the attempted robbery charge. Following a bench trial on January 29 and 30, 1985, defendant was found guilty of all three charges.
At trial the prosecution presented three witnesses: James Hope, Daniel Preston and Betty Hope. The following testimony was adduced at trial from these witnesses. Hope and defendant entered into an agreement whereby Hope purchased defendant's car. Hope obtained possession of the car in early February 1983 and agreed to make installment payments every few weeks. On April 8, 1983, Hope received a phone call at his home from defendant. Defendant requested that Hope make another payment on the car and the two of them agreed to meet the following morning at a restaurant. Daniel Preston (Hope's brother) and an unnamed mutual friend who was familiar with the area agreed to accompany Hope to the restaurant. The three of them arrived as scheduled but defendant was not there. Shortly afterwards, defendant's friend Mike arrived. Hope had previously been introduced to Mike by defendant.
Mike told Hope that defendant was waiting for the car payment "at the house." Hope and Mike then proceeded to the apartment building where defendant was waiting. While Hope's brother and his friend remained in their car, Hope entered the building. As Hope followed Mike through the vestibule doorway of the building, defendant appeared from behind the door with a pistol which he subsequently aimed at Hope's head. Defendant threatened to shoot Hope if he did not give him the money owed on the car. Defendant then ordered Hope to turn around. As he turned, Hope noticed that Mike also had a pistol in his hand. Defendant then told Mike to handcuff and gag Hope. In defense, Hope grabbed Mike's pistol and succeeded in knocking defendant's gun out of his hands. When defendant reached down to retrieve his gun, Hope grabbed defendant's hair and clasped his legs around defendant's head in order to immobilize him. Defendant began to stab him. Hope was then told to fall down onto the floor. After he fell, Mike gagged and handcuffed Hope. One of the men searched Hope's pockets and took his wallet containing $500 in cash and several credit cards. Defendant and Mike left the building, but defendant returned moments later to retrieve his gun. After locating the gun, he left.
Daniel Preston testified that he and a friend waited for his brother in their car, which was approximately 100 feet from the building. Preston saw Hope enter the building, and shortly thereafter he observed two white men run out of the building, run towards the backyard, and cut across an adjacent field. He viewed the men's faces for approximately 30 seconds. One of the men returned to the apartment building, remained inside a short while, and then ran out again. Preston recognized this man as the defendant because the two of them had previously met at Hope's house. Preston then got out of the car and walked toward the building, where he found his brother lying near the door. Hope had been handcuffed, had tape across his mouth and was bleeding from the chest. With the assistance of a neighbor named Mr. Papenleur, paramedics and police were summoned to the scene. While waiting for the ambulance, Hope told Preston that defendant had tried to kill him. Police officer Belice arrived on the premises. It was stipulated that Officer Belice would testify that he found Hope handcuffed. Hope was taken to St. Anthony's Hospital for treatment.
Brian and Charles Kall testified for the defense. Both testified that they were placed in a lineup with defendant on August 17, 1984. Both Kall brothers saw Hope standing in the doorway near the police lineup room during the lineup pointing at defendant.
Frederick Papenleur and his two sons, Fred, Jr., age 12, and Jimmy, age 11, also testified for the defense. They were tenants in the building where Hope was stabbed. On the morning of the attack, the Papenleurs heard arguing and fighting in the hallway which leads to the upstairs apartment. Mr. Papenleur stated that he overheard someone talking about "stabbing or killing." Jimmy testified that from his back window he saw two unidentified men run out the door from the second-floor apartment. However, Jimmy later admitted seeing only one of the men. He stated that defendant was not the man he saw on the day of the stabbing. Fred, Jr., testified that he was outside walking his dog when the stabbing occurred. He observed two men running through the yard. One of the men returned to the house and soon thereafter left. One of the men had a gun. Fred, Jr., did not recognize the defendant as one of the men he saw. He stated defendant has blond hair and the men he saw had black hair and were Mexican.
Defendant testified in his own behalf at trial. He stated that he was in Kentucky on April 8, 1984, and was not involved in the stabbing. He learned from his mother that two police officers had come to her house, and he returned to Chicago to find out what happened. He also testified that while he was involved in the lineup in August 1984 at the police station he saw Hope pointing at him.
The parties stipulated to the contents of a police report, based on an interview with Hope, which stated that offender number one was described as a white Hispanic wearing a blue-jeans jacket and blue jeans, 6 foot 1 inch, 190 pounds, age 22 to 23, eyes unknown, brown hair, and named Guy Pressley. Offender number two, a man named Mike, was described as a white male, 5 foot 10 inches, 150 pounds, wearing a brown jacket and blue jeans.
The prosecution called Hope in rebuttal. Hope stated that defendant was wearing a dark skullcap during the incident. He also testified that Mike, the second offender, had dark hair and a dark complexion, and looked Italian or Mexican.
Following closing arguments, defendant was found guilty of attempted murder, armed robbery and armed violence.
Defendant initially contends that improper restrictions were placed upon his ability to cross-examine Hope regarding potential interest, bias and motive to give false testimony. On cross-examination Hope was asked whether he had filed a claim with the Victim Compensation Division of the Attorney General's Office as a result of the incident. Under the Illinois Crime Victims Compensation Act, the victim of a violent crime may be entitled to compensation for his injuries. (Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.) Defendant contends that the cross-examination of Hope regarding a claim for compensation was designed to show interest, bias and motive to testify falsely and consequently was a proper subject for cross-examination. The prosecution maintains that while an applicant must agree to cooperate fully with law enforcement officials in the apprehension and ...