APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOSEPH URSO, JUDGE PRESIDING.
Rehearing Denied July 31, 1995.
Presiding Justice Scariano delivered the opinion of the court: DiVITO, J., concurs in part and dissents in part. McCORMICK, J., concurs in part and dissents in part.
The opinion of the court was delivered by: Scariano
PRESIDING JUSTICE SCARIANO delivered the opinion of the court:
This case arose out of a shooting incident on June 6, 1992, in which a bystander, 68-year-old Reverend Daniel Vinson, was wounded. Defendants Cedric Peterson and William Castile were subsequently indicted on charges of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2 now codified at 720 ILCS 5/33A-2 (West 1993)); attempt first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4, 9-1 now codified at 720 ILCS 5/8-4, 5/9-1 (West 1993)); aggravated battery of a senior citizen (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.6(a) now codified at 720 ILCS 5/12-4.6(a) (West 1993)); aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2 now codified at 720 ILCS 5/12-4.2 (West 1993)); and aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2(a)(2) now codified at 720 ILCS 5/24-1.2(a)(2) (West 1993)). Defendants were tried in a joint bench trial.
Reverend Vinson testified that on June 6, 1992, he was director of the Outreach Mission Christian Center in the City of Chicago and that he managed the Outreach Mission Car Wash at 3519 West Madison Street. At about 1:30 p.m. on that day, he was seated in front of the car wash with Dorothy Harris, a bookkeeper, and Peterson, whom Reverend Vinson knew from the neighborhood.
While Reverend Vinson and Harris were doing book work, Peterson approached Castile on the street and told him to get out of his territory. Castile, whom Reverend Vinson also knew, responded by saying, "Get out of my face. I'll blow you away. Peterson opened his coat and stated, "Blow me away. I don't have anything." As Peterson started to walk back to the car wash, he suddenly turned around, fell to one knee, and drew a gun. Peterson and Castile then began shooting at each other. At this time, Peterson was about five feet away from Reverend Vinson and Castile was about 10 feet away. Reverend Vinson heard six or eight shots fired in quick succession, and saw both Peterson and Castile fire their guns, although he could not tell who fired first. As they fired, Castile chased Peterson through the car wash and "everybody went to run."
At that time, Reverend Vinson realized that he had been shot. He flagged down a car and had the driver take him to the hospital where he was treated for a bullet wound in his right elbow. No bullet was removed from his arm, but he spent six hours in the hospital where he was given a tetanus shot, but no stitches, because the doctor hoped to prevent an infection by allowing the wound to drain. Reverend Vinson has a one-half-to-one-inch scar on his elbow as a result of the wound.
On cross-examination, Reverend Vinson stated that the "first thing I heard that immediately got my attention" was Castile's comment that he would blow away Peterson. He recalled that Peterson was facing away from him during the first several shots, but that he was running through the car wash when Reverend Vinson first noticed blood on his elbow.
Also on cross-examination, Reverend Vinson contradicted his earlier testimony by recalling that Peterson fired the first shot and that Castile hid behind a box situated in front of the car wash and fired back. However, on redirect examination, Reverend Vinson reiterated that he was unsure who fired the first shot.
At the time of the shooting, Officer Tony DiCristofano was making a traffic stop at 45 South Homan, around the corner from the car wash. He heard several shots coming from the alley behind Madison and observed Castile chasing Peterson through the alley. When he ordered Castile to drop his gun, he complied. Officer DiCristofano observed that there were four spent cartridges and one live cartridge in the gun. A few minutes later, Peterson was arrested. Peterson initially denied having a gun, but then told the police that he had hidden it in an air vent at a Chicago Housing Authority (C.H.A.) building. The officers found the gun and Officer DiCristofano noticed that it had one spent cartridge and four live cartridges in its cylinder. Both Peterson and Castile admitted shooting at each other, but denied intending to shoot Reverend Vinson.
Peterson gave a statement which was published without objection and was admitted into evidence against only him. In it, he stated that about three weeks earlier he had lost $150 in a dice game and that he borrowed the money from Castile. On the day of the shooting, he paid Castile $160 after Castile asked for repayment of the loan plus $10. Peterson then retrieved a gun from the car wash where he had hidden it and placed it in his waistband. As Castile and some others were walking towards the car wash, Peterson told Castile to stop threatening him. Castile responded that they should stop arguing and shake hands before they killed each other. After they shook hands, Castile pulled out his gun and shot at Peterson. Peterson simultaneously pulled a gun and fired at Castile. Castile fired three or four times and Peterson fired three times. Peterson ran into the car wash as they fired at each other, and Castile followed him. Peterson knew that other people, including Reverend Vinson, were at the car wash while he and Castile were shooting. Peterson further stated that he ran through the car wash and hid his gun in a vent in the laundry room of a C.H.A. building and then left the building. The police spotted him and eventually arrested him.
Castile also made a statement after he had been treated for a bullet wound to his knee. The statement was admitted into evidence against only Castile and was published without objection. According to Castile, in the afternoon of June 6, 1992, he was in Garfield Park across from the car wash when his friend, Peterson, approached him. He asked Peterson to repay him the $160 that he had lent him. Castile said that they argued over the money. At one point, Peterson reached under his clothes as if he were reaching for a gun and told Castile to stop "messing" with him.
Peterson then walked across the street to the car wash. Shortly afterwards, Castile began to walk to the tavern next to the car wash and Peterson called out to him, asking why he was still "messing" with him. Castile said that they should stop fighting and shake hands before they hurt each other. They then shook hands and Castile began to walk towards the tavern. At that point, Peterson jumped up and pulled out a handgun. Castile ran behind a box and pulled out his gun. Peterson fired three shots, one of which hit Castile. Castile fired two shots. Castile was aware that other people were at the car wash during the shooting, including Reverend Vinson. Peterson fled into the car wash and shot from there. Castile followed him and was arrested as he exited from the back of the car wash.
After the State rested, both defendants moved for a "directed" finding (despite the fact that they were tried in a bench trial). The court granted the motion only on the attempt first degree murder charge, denying it as to all other charges. The judge did not elucidate the basis for his ruling.
Peterson testified that he knew Castile for about nine or 10 years prior to June 1992. He stated that Castile had a reputation as a killer and a threatening and dangerous person. Counsel for Castile objected to this testimony, but the trial court overruled his objections. Peterson went on to testify, over Castile's counsel's objection, that Castile had shot him in 1991. Castile's counsel then moved for a severance, stating, "I was not aware this was going to happen." The trial court denied his motion, noting that he would have an opportunity to cross-examine Peterson.
Peterson testified further that when Castile approached him in the park and asked for the $160, he motioned, revealing a gun in his jacket, and Peterson interpreted this gesture as a threat. He got the money and paid Castile. He then got his gun from the car wash because he was fearful that Castile would start shooting. When he and Castile shook hands in front of the car wash, they "said a couple more words to one another" and Castile then threatened to blow him away. Peterson recalled that they pulled their guns simultaneously and that he drew his gun because he was scared. Castile fired first and he returned fire only once. When he fired, he was facing Castile, not Reverend Vinson. Peterson ran away when he saw a police car coming.
On cross-examination by the State, Peterson acknowledged that even though he believed that Castile was a threatening person, he borrowed money from him. He also admitted that he did not tell the police that Castile shot him in 1991 and that he did not go home, leave the area, or contact the police when Castile threatened him on June 6, 1992.
When cross-examined by Castile's counsel, Peterson denied that Castile had lent him money on other occasions or that he helped him get bond money when he was charged with first degree murder in a different case. Peterson said that before the shooting, he put his gun in the front of his belt and denied that he opened his coat to show Castile he had no weapon.
After Peterson rested, the State and Castile entered a stipulation that Castile was treated for a through-and-through gunshot wound to the left knee in the afternoon of June 6, 1992. Castile then rested.
The judge found both defendants guilty of aggravated discharge of a firearm, aggravated battery with a firearm, armed violence, and aggravated battery of a senior citizen. He also found that self-defense was not applicable because "it was in fact a mutual combat situation." *fn1
Both defendants filed motions for a new trial, but the judge denied them. The judge stated that each defendant performed conscious and deliberate acts which caused Reverend Vinson's injury. He went on to note that while it would never be known whose bullet injured Reverend Vinson, each defendant was equally responsible for the injury.
The judge sentenced Castile to nine years in the custody of the Illinois Department of Corrections for aggravated battery with a firearm and seven years for aggravated battery of a senior citizen and aggravated discharge of a firearm, the sentences to run concurrently. He sentenced Peterson to concurrent sentences of eight years for aggravated battery with a firearm and seven years for aggravated discharge of a firearm and aggravated battery of a senior citizen. Defendants' armed violence convictions merged. They now appeal.
The State correctly agrees with defendants that their convictions for aggravated battery of a senior citizen must be vacated under the one-act-one-crime rule. We therefore find that analysis of issues relating to those charges is unnecessary. See People v. Tayborn (1993), 254 Ill. App. 3d 381, 391, 627 N.E.2d 8, 15, 193 Ill. Dec. 849; People ...