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March 30, 1994


Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelley, Judge Presiding.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant DaJuan Banks appeals his convictions on eight counts, i.e., three counts ofaggravated battery with a firearm, three counts of aggravated discharge of a firearm, one count of armed violence and one count of aggravated battery. Defendant was sentenced to concurrent prison terms of 20 years for aggravated battery with a firearm and armed violence, 15 years for aggravated discharge of a firearm and 5 years for aggravated battery.

On appeal four issues are raised: (1) whether defendant was proved guilty beyond a reasonable doubt, on the basis of accountability, of the offenses relating to James New, a gunshot victim who was not wounded by defendant's gun; (2) whether the three convictions for aggravated discharge of a firearm were based on the same physical act which formed the basis for the three convictions for aggravated battery with a firearm and thus should be vacated; (3) whether the 20-year sentence constitutes an abuse of discretion; and (4) whether remandment for resentencing is necessary if any convictions are vacated.

For the reasons which follow, we vacate the convictions for one count of armed violence and one count of aggravated battery and the five-year sentence imposed for the aggravated battery conviction. We affirm all the other convictions and the sentences imposed for those crimes.

A 15-count indictment against defendant and codefendant Aundrake Parks issued from the shooting and wounding of three victims (Kenneth Lemons, David Ross and James New). Codefendant Parks was dismissed when the trial court granted his motion for directed finding after the State presented its evidence at trial. Thus, Parks is not a party to this appeal.

The State presented five witnesses at trial: Kenneth Lemons (a victim), James Sawyer (an eyewitness), James Harris known as James New (a victim), and police officers Ronald Keith (arresting officer of defendant) and Darnell Calhoun (arresting officer of codefendant Parks).

At trial, 15-year-old Lemons testified that in the early morning hours of April 28, 1991, he attended a party in a building which was a part of the Robert Taylor Homes where he lived. Lemons was a member of the Black Disciples street gang and was accompanied at the party by some of his friends including David Ross, James Sawyer, Derrick Taylor and Bruce White. Some members of the Gangster Disciples were also at the same party.

About 2 a.m. Lemons left the party and went riding in a car with three men. While driving around, Lemons saw a member of the Gangster Disciples driving a blue and gray van. Lemons testified that, for no reason, he shattered the driver's side window of the van with a baseball bat. Lemons and the others in the car then returned to the Robert Taylor Homes.

About 3 a.m. Lemons and approximately 11 other people including Sawyer were standing outside one of the buildings in an area with benches and they were all unarmed. Lemons heard about 20 gunshots and saw defendant shooting while defendant was "stooped down" behind a fire hydrant. Lemons knew defendant by his street name Mann and saw him nearly every day for the past three years. Although Lemons did not see a gun, he saw fire emanating from defendant's chest. Lemons heard two different types of gunshots but could not identify the source of any shots except those emanating from the fire hydrant and never saw anyone shooting other than defendant.

Lemons walked into the building and discovered he had been shot in his right hand. Lemons knew that David Ross received a gunshot wound in his left hand and James New received a gunshot wound in his left shoulder. During the shooting, Lemons saw James New standing by the fire hydrant but did not know where Ross was located. On cross-examination, however, Lemons testified that New was standing next to him during the shooting.

Lemons testified that he joined the Black Disciples at age seven and thus had been a member about eight years. James New had been in the same gang with Lemons about five years but defendant was a member of a different gang called the Gangster Disciples. When defense counsel objected to the State's questions concerning defendant's gang affiliation, the trial court reserved ruling on the State's assertion that it expected to tie up the information with testimony by a police officer. At the end of Lemons' testimony, however, the court granted defendant's motion to strike the testimony relating to defendant's gang membership.

James Sawyer testified that he was a member of the Black Disciples and essentially recounted the same events as Lemons. After attending the same party as Lemons, Sawyer was among those standing by the outside bench when the shooting occurred. Sawyer also observed defendant at the fire hydrant shooting at the people near the benches. Sawyer also heard shots emanating from other locations but could not identify their source. No one in Sawyer's group had a gun.

James New testified that he was with Lemons and Ross when the shooting occurred, heard no less than 15 gunshots, and sustained a wound in the back of his shoulder. New was unarmed and unable to identify the shooter.

The parties stipulated that a .9 millimeter bullet was removed from the back of New's neck. At a different hospital, Ross was treated for a single through-and-through gunshot wound on his left hand.

Police Officer Ronald Keith testified that he was patrolling in a marked police car near the vicinity where the shootings occurred. About 3 a.m. he received a flash message with a description of a wanted man. Keith saw defendant running with gun in hand and observed that defendant matched the description conveyed in the flash message. Keith arrested defendant and recovered a Torris .357 handgun which had been discarded by defendant during the chase. The .357 caliber gun contained six spent casings. Ammunition for a .357 gun differs from that used in a .9 millimeter automatic weapon.

Police Officer Darnell Calhoun testified that at 3 a.m. he was in a parking lot near the location of the shootings when he heard gunshotsand observed a number of people running into a building. Calhoun entered his squad car and chased codefendant Parks who was leaving the scene of the shooting and running with his left hand in his pocket apparently holding some object. Calhoun followed Parks about one block and then saw him talking to the occupants of a blue van. When Calhoun approached in his squad car, the blue van sped away and Calhoun arrested Parks who was then unarmed.

After the State rested, the trial court denied defendant's motion for directed finding but granted the same motion for codefendant Parks. The defense rested without presenting any evidence.

Following closing arguments, the trial court acquitted defendant of three counts of attempted murder and other offenses.

The trial court convicted defendant of three counts of aggravated battery with a firearm (counts IV, V and VI); three counts of aggravated discharge of a firearm (counts X, XI and XII); one count of armed violence as to James New (count VIII); ...

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