Appeal from the Circuit Court of Lake County. No. 92-CF-1542. Honorable John R. Goshgarian, Judge, Presiding.
Rehearing Denied June 15, 1994. Petition for Leave to Appeal Denied October 6, 1994.
PECCARELLI, Quetsch, Colwell
The opinion of the court was delivered by: PECCARELLI
JUSTICE PECCARELLI delivered the opinion of the court:
Following a jury trial in the circuit court of Lake County, defendant, Everette Crite, was found guilty of second degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-2 (now 720 ILCS 5/9-2 (West 1992))), aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2 (now codified, as amended, at 720 ILCS 5/24-1.2 (West 1992))), and unlawful possession of a weapon by a felon (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.1(a) (now 720 ILCS 5/24-1.1(a) (West 1992))). Defendant was sentenced to 5 years' imprisonment for possession of a firearm by a felon, 15 years' imprisonment for second degree murder, and 30 years' imprisonment for aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2(a) (now codified, as amended, at 720 ILCS 5/12-4.2(a) (West 1992))).
On appeal defendant contends that: (1) the trial court erred when, subsequent to the jury's finding defendant guilty on the uncharged offense of aggravated discharge of a firearm, the court amended the verdict to reflect a guilty finding on the charged offense of aggravated battery with a firearm, and (2) the trial court erred when it entered judgment on both defendant's conviction of second degree murder and his conviction of aggravated battery with a firearm since both offenses were based upon the same physical act.
The relevant facts, culled from the record, disclose that the defendant was indicted by the grand jury of Lake County on two counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 9-1(a)(1), (a)(2) (now 720 ILCS 5/9-1(a)(1), (a)(2) (West 1992))), one count of aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2(a) (now codified, as amended, at 720 ILCS 5/12-4.2(a) (West 1992))), and one count of unlawful possession of a firearm by a felon (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.1(a) (now 720 ILCS 5/24-1.1(a) (West 1992))). The aggravated battery with a firearm count is at issue in the instant case.
Roger Wright, the State's first witness, testified he was a friend of defendant, Everette Crite, and a friend of the decedent, Edward Holden. Wright stated that at approximately 10:30 to 11 p.m. on June 17, 1992, he was with defendant, Darnell Brown, William Crite, Jameela Massie, Samquitta Thompson, and Eleecia Johnson on Liberty Street in Waukegan. At that time, Wright saw Holden.
Wright walked with Massie, Thompson, and Johnson down the street and then returned to where he had seen Holden. Defendant and Holden were involved in an argument over a girl. Wright saw Holden pull up his shirt. Holden told defendant that "he ain't got no pistol." Defendant pulled out a gun. Holden said, "You shoot me, you better kill me."
According to Wright, Holden then grabbed Darnell Brown and pulled Brown to the ground to use him as a shield from defendant. Brown was on top of decedent as they lay on the ground. Holden let go of Brown and then tried to run away from the area. Wright recalled that defendant first shot his pistol in the air and then fired three or four shots at Holden. Wright turned away and started to run. When he looked back, Holden was on the ground.
Darnell Brown testified that he is the brother of defendant and William Crite. At the time of the occurrence in question he was with defendant, Roger White, and William Crite. It was Brown's testimony that Holden and two men encountered Brown and the other persons. Holden and defendant argued about defendant "messing" with Holden's girlfriend. Holden suddenly grabbed Brown and held Brown in front of him. Brown saw defendant point a gun at Holden and tell Holden to "let my little brother go."
Defendant asked Holden if he had a gun. Holden pulled up his shirt. Brown did not see a gun under the shirt. When William Crite tried to pull Brown away from Holden, Holden and Brown fell to the ground. Crite then succeeded in pulling Brown away from Holden. Brown recalled that Holden got up and started to run away from the scene. Defendant shot once in the air, and, as Holden was running away, continued to shoot the gun. At that time Brown did not see anyone else with a gun.
A forensic pathologist testified that she performed the autopsy of Holden. The pathologist stated that Holden died as a result of a single gunshot wound through the chest and heart.
Defendant testified in his own behalf. Defendant related that he had met Holden twice before June 17, 1992. The first time was about a week before June 17, when he and Holden argued about a female. According to defendant, Holden pulled a gun on defendant at that time and told him to leave the female alone. The second time the two men met was on June 15, when defendant and his brother, William Crite, were in a car, ...