People v. Post

• Citation: 64 Ill.Dec. 911,440 N.E.2d 631,109 Ill.App.3d 482
• Decision Date: 17 September 1982
• Docket Number: No. 81-710,81-710
• Parties: , 64 Ill.Dec. 911 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig POST, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 631

440 N.E.2d 631

109 Ill.App.3d 482, 64 Ill.Dec. 911

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig POST, Defendant-Appellant.

No. 81-710.

Appellate Court of Illinois,

First District, Fifth Division.

Sept. 17, 1982.

[64 Ill.Dec. 913] James J. Doherty, Chicago, for defendant-appellant; John Lanahan, Chicago, of counsel

Richard M. Daley, Chicago, for plaintiff-appellee; Michael E. Shabat, David A. Shapiro and David A. Baitman, Chicago, of counsel.

SULLIVAN, Presiding Justice:

After a jury trial, defendant was convicted of armed violence and four counts of aggravated battery. He was sentenced to 6 years on the armed violence conviction, to be served concurrently with 4 concurrent 3-year sentences for each conviction of aggravated battery.

On appeal, defendant contends that (1) he was improperly convicted of armed violence where the felony charged as an element thereof was aggravated battery under section 12-4(b)(1) of the Criminal Code (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(1)); (2) he was denied a fair trial (a) when the prosecutor told a potential witness that he need not appear in court and then commented in closing on his failure to call witnesses and (b) when the State failed to reveal until the eve of the trial that it possessed a knife which might have supported his self-defense theory; (3) the trial court erred when it admitted portions of his oral confession, not revealed in discovery, which negated his theory of self-defense; and (4) the four convictions for aggravated battery should have been merged into one conviction for that offense.

George Raiman, assistant manager of the Biograph theater, testified that on the evening of December 7, 1979, patrons were being searched as they entered the theater; that Akram Farhan, Debra Farhan, Robin Edwards, and Frank Rozhon entered together and were searched, but no weapons were found; that no search was made of defendant and his companions, Jessie Nava, William Snow, and Mark Reed, when they entered ¹; that he overheard defendant say that he had a knife and wanted to get "the Iranian" who was inside; that he warned Akram Farhan of the threat and advised him to leave; that after Farhan and his three companions left through a side door leading to an alley, defendant and his companions ran out the front door; that when he (Raiman) went out, he saw defendant and Farhan facing each other in the alley with Richard Warner, manager of the theater Richard Warner, the theater manager, testified that on the evening of December 7, 1979, George Raiman told him of possible trouble with two groups of patrons; that when he went out into the alley and stood between the two groups, defendant pulled a knife and told him to get out of the way; that he then saw a scuffle involving Farhan, defendant, and Nava, during which defendant stabbed Farhan; that neither Farhan nor any of his companions had a knife; that on the morning of December 9, the janitor at the Biograph brought in a knife, stating that he had found it in the alley; that he was in the alley several times between the incident and December 9 but had not seen a knife; and that he did not hear Farhan threaten anyone.

[64 Ill.Dec. 914] between them; that defendant had something in his hand at that time; and that Farhan had nothing in his hands.

Officer Groth testified that when he arrested defendant and his three companions at the scene, he was informed that the knife used in the incident was still in the alley; and that when he returned to the alley behind the Biograph in the early morning hours of December 8, he found a knife in a large trash bin.

Akram Farhan testified that he was searched when he entered the Biograph on the evening of December 7, 1979; that later, George Raiman spoke to him and advised him to leave; that he and his companions exited through a side door into an alley, where he saw defendant and his companions approaching and heard one of them say "Let's get the Iranian"; that he started to run away, but Nava grabbed him around the neck from behind and he then felt a pain in his back; that he turned and saw defendant behind him with a knife in his hand; that as he fell, defendant grabbed his legs and stabbed him three times in the thigh; that neither he nor any of his companions had a knife that evening; that he was hospitalized for 5 to 6 days; and that he now has scars on his back, on the inside thigh of his left leg, and on the outer thigh of his left leg.

On cross-examination, Farhan testified that he had never met defendant prior to that evening; that he has owned knives but was unarmed on the date of the incident; and that he did not recognize and had never owned the knife found in the alley on December 9.

Assistant State's Attorney James Linn testified that in an interview during the early morning of December 8, 1979, defendant told him that he had stabbed Farhan and had hidden the knife in a large trash bin behind the Biograph. Defendant also told him that Farhan had no knife or other weapon that night. On cross-examination, Linn admitted that the summary he wrote after the interview did not contain any reference to Farhan's being unarmed.

It was stipulated that Farhan sustained three puncture wounds in his left thigh and one puncture wound on the left side of his lower middle back.

Officer Groth, when recalled by the defense, testified that when he searched the alley and found the knife in the trash bin early on the morning of December 8, he saw no other knife in the area.

Defendant testified that he was with Snow, Nava, and Reed in the lobby of the Biograph on December 7, 1979; that he knew Snow had fought with Frank Rozhon, one of Farhan's companions, prior to that night; that when Snow ran out of the theater, he was followed by Nava and Reed and, although he (defendant) did not know where they were going or why, he followed them; that they all ran into the alley where he saw Farhan and his group emerging from the theater; that as Farhan started walking toward him, Snow said he (Farhan) had a knife; that Farhan then threatened him (defendant) and he saw a knife in Farhan's hand; that Snow handed him a knife as Farhan approached and, when he attempted to kick the knife out of Farhan's hand, he (defendant) slipped and fell on the ice; that Farhan then lunged at him with the knife and, to protect himself, he stabbed Farhan three times in the leg; that as they scuffled, Farhan dropped his knife and he kicked it away and then threw his own

[64 Ill.Dec. 915] knife in the trash bin; that he did not remember stabbing Farhan in the back, but that it could have happened while they were scuffling; that he had done nothing to provoke Farhan's attack; and that he had told this story to Assistant State's Attorney Linn, including the fact that Farhan had a knife.

OPINION

We first consider the propriety of the armed violence conviction where the felony charged as an element of that offense was aggravated battery under section 12-4(b)(1) of the Criminal Code. Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(1).

Battery, a misdemeanor, requires proof that the defendant "intentionally or knowingly without legal justification and by any means * * * cause[d] bodily harm to an individual * * *." (Ill.Rev.Stat.1979, ch. 38, par. 12-3(a); People v. Siler (1980), 85 Ill.App.3d 304, 40 Ill.Dec. 688, 406 N.E.2d 891.) Use of a deadly weapon in the commission of a battery enhances the offense to a felony, aggravated battery. (Ill.Rev.Stat.1979, ch. 38, par. 12-4(b)(1); People v. Redding (1976), 43 Ill.App.3d 1024, 2 Ill.Dec. 784, 357 N.E.2d 1227.) The elements of armed violence are (1) commission of any felony defined by Illinois law; and (2) while armed with a dangerous weapon. (Ill.Rev.Stat.1979, ch. 38, par. 33A-2.) In People v. Van Winkle (1981), 88 Ill.2d 220, 58 Ill.Dec. 736, 430 N.E.2d 987, it was held that use of a dangerous weapon which serves to enhance a charge of battery to aggravated battery may not also serve to further enhance the latter charge to armed violence. Accord, People v. Haron (1981), 85 Ill.2d 261, 52 Ill.Dec. 625, 422 N.E.2d 627.

It is our view that Van Winkle is dispositive of this issue. Defendant here was charged in the indictment with "the offense of armed violence in that he, while armed with a dangerous weapon, to wit: a knife, intentionally and knowingly without legal justification caused bodily harm to Akram Farhan, by stabbing him in the back and thigh with said knife, in violation of Chapter 38, Section 33A-2, 12-4(b)(1) of the Illinois Revised Statutes 1977, as amended * * *." The indictment contains the elements required for an armed violence conviction, and the felony element is clearly predicated on section 12-4(b)(1).

The State, however, relying on People v. Ross (1981), 100 Ill.App.3d 1033, 56 Ill.Dec. 550, 427 N.E.2d 955, contends that the conviction should stand (1) since the defendant was also convicted of aggravated batteries causing great bodily harm, permanent disability, and permanent disfigurement (Ill.Rev.Stat.1979, ch. 38, par. 12-4(a)), any of which could serve as the felony predicate of armed violence; and (2) because the verdict does not specify which aggravated battery count was relied on in the conviction of armed violence.

In Ross, the defendant was convicted of armed violence and two aggravated battery charges, using a deadly weapon and causing great bodily harm, in addition to armed violence. Because the jury failed to specify on which aggravated battery it relied in reaching the armed violence verdict, the court affirmed that conviction. Ross, however, is distinguishable in one important respect--the indictment in that case did not specify a particular form of aggravated battery as the underlying felony for armed violence. Therefore, the court was able to assume that the jury's verdict was based on aggravated battery causing great bodily harm. In the present case, the indictment clearly specifies aggravated battery...