{ "id": 5677851, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE B. WILKERSON JR., Defendant-Appellant", "name_abbreviation": "People v. Wilkerson", "decision_date": "1984-04-17", "docket_number": "No. 4\u201482\u20140400", "first_page": "527", "last_page": "538", "citations": [ { "type": "official", "cite": "123 Ill. App. 3d 527" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "353 N.E.2d 23", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2970552 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0735-01" ] }, { "cite": "312 N.E.2d 637", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "57 Ill. 2d 433", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406131 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0433-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "422 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470220 ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0261-01" ] }, { "cite": "430 N.E.2d 987", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "88 Ill. 2d 220", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3082226 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/88/0220-01" ] }, { "cite": "439 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 880", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3012326 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0880-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "405 N.E.2d 1295", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 1103", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3204940 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/1103-01" ] }, { "cite": "389 N.E .2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 28", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5583063 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0028-01" ] }, { "cite": "392 N.E.2d 725", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3282650 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0199-01" ] }, { "cite": "376 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 325", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3350702 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0325-01" ] }, { "cite": "439 N.E.2d 1103", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 856", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3015136 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0856-01" ] }, { "cite": "74 N.E. 743", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1982, "opinion_index": 0 }, { "cite": "216 Ill. 309", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3359446 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill/216/0309-01" ] }, { "cite": "392 U.S. 219", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168861 ], "weight": 3, "year": 1905, "opinion_index": 0, "case_paths": [ "/us/392/0219-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "309 N.E.2d 544", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405478 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0536-01" ] }, { "cite": "242 N.E.2d 160", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "41 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853046 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0102-01" ] }, { "cite": "383 N.E.2d 954", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "74 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993820 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/74/0018-01" ] }, { "cite": "357 N.E.2d 1386", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 357", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2816096 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0357-01" ] }, { "cite": "221 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378761 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0228-01" ] }, { "cite": "222 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378033 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0194-01" ] }, { "cite": "263 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "133 Ill. App. 2d 118", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473250 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/133/0118-01" ] }, { "cite": "314 N.E.2d 489", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 538", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5346324 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0538-01" ] }, { "cite": "411 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 67", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474228 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0067-01" ] }, { "cite": "272 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5315032 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0087-01" ] }, { "cite": "336 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2796087 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0431-01" ] }, { "cite": "107 N.E. 165", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 2, "year": 1975, "pin_cites": [ { "page": "177" } ], "opinion_index": 0 }, { "cite": "265 Ill. 448", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4780233 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/ill/265/0448-01" ] }, { "cite": "429 N.E.2d 526", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030946 ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0151-01" ] } ], "analysis": { "cardinality": 1068, "char_count": 24377, "ocr_confidence": 0.763, "pagerank": { "raw": 2.2772697289643028e-07, "percentile": 0.7844131067100824 }, "sha256": "4fada61360fb5582bb1b4072086c1c16ffe4bcc189365a8212f569cb92632190", "simhash": "1:a83cbaee712465a4", "word_count": 3977 }, "last_updated": "2023-07-14T17:44:31.202001+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE B. WILKERSON JR., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MILLER\ndelivered the opinion of the court:\nThe defendant was tried by a jury, convicted of several counts each of attempted murder, armed violence, and aggravated battery, and sentenced on the two more serious groups of convictions, those for attempted murder and armed violence, to concurrent terms of 25 years\u2019 imprisonment. On appeal the defendant raises a number of questions concerning the course and conduct of his trial and the sentences that were imposed. We conclude that no error occurred and therefore affirm the defendant\u2019s convictions and sentences for attempted murder. The convictions for armed violence and aggravated battery and the sentences for armed violence are redundant, however, and must be vacated.\nThe convictions arose from a dispute that occurred between the defendant\u2019s family and some neighbors on September 23, 1978, at an apartment complex in Champaign. That day Vivian Turner, the defendant\u2019s sister, learned that her son had been bitten by a neighbor\u2019s son and complained about this to the neighbor, Katie Bolden. Turner and Bolden got into a fight, which a police officer ended temporarily. Later, Turner and Bolden resumed fighting. The defendant and his brother, Johnnie \u201cLittle Johnnie\u201d Wilkerson, then appeared; the defendant was armed, and he shot and wounded two members and a friend of the Bolden family. The defendant also was wounded. Whether anyone in the Bolden group was armed was disputed at trial.\nThis was the defendant\u2019s second trial on these charges; his earlier convictions were vitiated by trial error and reversed on appeal (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526).\nI\nThe defendant argues first that he was denied a fair trial because of per se conflicts of interest inhering in the persons appointed here as special prosecutor and special defense counsel.\nAt arraignment after the cause was remanded for a new trial, the defendant objected to the appointment of the public defender as his counsel because he feared that a conflict of interest could arise from the public defender\u2019s simultaneous representation of his brother on charges arising from this same incident. The defendant requested the appointment of Marian Kurata, who had successfully argued his earlier appeal. The trial court granted the defendant\u2019s request and appointed Kurata as defense counsel. Robert Frederick had been appointed to serve as special prosecutor.\nLater, Kurata moved to vacate the appointment of Frederick as special prosecutor and her own appointment as defense counsel. The basis for the motion was Frederick\u2019s and Kurata\u2019s former employment together in the Champaign County public defender\u2019s office during the defendant\u2019s first trial on these charges. At that time, Frederick was head of the office, Kurata was an assistant, and another assistant was representing Vivian Turner, the defendant\u2019s sister, on charges arising from this same incident; the defendant was represented by privately retained counsel. The motion alleged that trial strategy might have been discussed by or made available to these various lawyers.\nAt a hearing on this motion, Frederick said that he could remember no conversations with Turner\u2019s lawyer regarding this case and that he had no knowledge of that representation. The trial court denied the motion to vacate Frederick\u2019s appointment as special prosecutor. The trial court then asked the defendant whether he wanted Kurata to continue as his lawyer, and the defendant replied that he did. The court denied the motion to vacate Kurata\u2019s appointment as defense counsel.\nFrederick\u2019s service here as special prosecutor did not violate the rule forbidding criminal prosecution by a person who has acquired from the accused confidential information concerning the particular offense. (People v. Gerold (1914), 265 Ill. 448, 107 N.E. 165; People v. Rhymer (1975), 32 Ill. App. 3d 431, 336 N.E.2d 203; People v. Curry (1971), 1 Ill. App. 3d 87, 272 N.E.2d 669.) In Gerold the court said:\n\u201cAn attorney cannot be permitted to assist in the prosecution of a criminal case if by reason of his professional relations with the accused he has acquired a knowledge of the facts upon which the prosecution is predicated or which are closely interwoven therewith.\u201d (People v. Gerold (1914), 265 Ill. 448, 478, 107 N.E. 165,177.)\nBecause Frederick never had a professional relationship with the defendant, the only way in which he could have obtained the disqualifying information would have been through conversations with the defendant\u2019s privately retained lawyer or, less directly, with the assistant in his own office who was handling Vivian Turner\u2019s case. Both those routes are too attenuated to compel the conclusion that Frederick occupied a position that gave him access to disqualifying information. Further, we note that at the hearing on the pretrial motion, Frederick stated that he had no knowledge of defendant\u2019s case from any prior representation.\nWe note also that a public defender\u2019s office is not regarded per se as a law firm or single entity in considering conflicts of interest arising from multiple representation. (People v. Nelson (1980), 82 Ill. 2d 67, 411 N.E.2d 261.) Therefore, Frederick\u2019s former position as head of the office cannot by itself mean that he should be deemed to have acquired whatever information his assistant defenders acquired.\nThe defendant also objected to Kurata\u2019s appointment as special defense counsel. Kurata served as an assistant public defender during Frederick\u2019s tenure as head of that office and while Vivian Turner was being represented on charges arising from this same incident. This by itself does not compel Kurata\u2019s disqualification. (Nelson.) More important, Kurata\u2019s earlier employment as an assistant public defender under Frederick\u2019s authority was placed on the record in the defendant\u2019s presence. The defendant persisted in his desire to have Kurata serve as his lawyer, however. Therefore, the defendant has knowingly waived any conflict of interest that might have derived from Kurata\u2019s previous employment.\nThe defendant also argues that Kurata\u2019s agreement to evidentiary stipulations proposed by the State is evidence of a less than vigorous defense. Before trial the special prosecutor asked the court to admit stipulations concerning the chain of custody of five bullets that either had been found at the scene or had been removed from the victims\u2019 bodies. Kurata told the court that she signed the stipulations over the defendant\u2019s objection; she believed that the defendant could secure a similar stipulation in exchange for agreement here. The defendant told the court that he did not want to help the State prove its case against him. The stipulations were admitted into evidence, and the defendant repeated his objection when they were read to the jury. The defendant believed that the State and defense counsel were conspiring against him.\nThe relationship between a lawyer and her client is that of agent and principal; a lawyer is bound to follow the lawful instructions of her client, and her actions are restricted to the scope of the authority conferred. (Chiappetti v. Knapp (1974), 20 Ill. App. 3d 538, 314 N.E.2d 489; Fleener v. Fleener (1970), 133 Ill. App. 2d 118, 263 N.E.2d 879.) At the same time, though, the lawyer is the manager of the lawsuit, and therefore decisions on trial strategy and tactics may be made by counsel alone. People v. Williams (1966), 36 Ill. 2d 194, 222 N.E.2d 321.\nThe decision whether to stipulate with the State to the chain of custody of the various bullets involved an assessment of trial strategy and tactics, and as such, it was Kurata\u2019s decision to make, based upon her professional judgment as the defendant\u2019s lawyer. Kurata entered into the stipulations in return for the special prosecutor\u2019s promise that he would stipulate to the chain of custody of a bullet that the defendant was seeking to have removed from his body. The defendant believed that the bullet\u2019s characteristics would provide evidence of an undiscovered gun, buttressing his assertion that the victims were armed and he acted in self-defense. Thus, the defendant stood to benefit from Kurata\u2019s agreement. Therefore, we do not find evidence of a conspiracy between Kurata and the special prosecutor, her former employer. We note that the defendant specially requested that Kurata be appointed to represent him in this appeal, despite his earlier disagreements with her, so he has waived any conflict arising from that.\nII\nThe bullet was never removed from the defendant\u2019s body, however, and that forms the basis of his next argument: that the trial court should have ordered its removal or, alternatively, should have granted his motion for a continuance so that he could have time to find a surgeon that would perform the necessary operation.\nThe defendant filed a motion on March 5, 1982, asking the court to order the surgical removal of a bullet that had been lodged in his buttocks since the date of the disturbance at the apartment complex. The defendant wanted to have the bullet examined by a forensic scientist; the defendant believed that this might produce evidence that the victims were armed and that he acted in self-defense. The trial court ordered a physical examination of the defendant by Dr. R. B. Helfrich and reserved its ruling on the motion.\nAfter examining the defendant, Dr. Helfrich wrote the court a letter reporting that the bullet was embedded in the defendant\u2019s right buttock but that surgery was \u201cnot indicated on medical grounds.\u201d Several days later the court received a letter from Krail Lattig, a forensic scientist employed by the Department of Law Enforcement, who said that a reasonably close approximation of the bullet could be made by using X rays but that that method would not make possible a specific identification of the cartridge and weapon type.\nNeeding more information, the court granted the defendant a continuance on March 26, moving the start of the trial back more than a month, from April 5 to May 10. In response to the court\u2019s request for elaboration on several points, Dr. Helfrich sent another letter, explaining why removal of the bullet was medically unwise and what it would cost. Dr. Helfrich said that the bullet was located near the defendant\u2019s sciatic nerve and that removing the bullet might injure the nerve, which could permanently paralyze the lower half of the defendant\u2019s body. Dr. Helfrich also believed that the bullet might elude discovery. He said that the surgery would take more than an hour and cost more than $600, not include the hospital\u2019s separate charges. After holding another hearing, the court denied the defendant\u2019s motion for removal of the bullet.\nOn April 26, 1982, the defendant filed a supplemental motion for a continuance for more time to find a surgeon that would be willing to perform the operation. The motion listed the names of a dozen doctors who had refused either to examine the defendant or to perform the surgery. The motion was denied; the trial began on May 10,1982.\nThe court did not err in failing to order the removal of the bullet. The operation would have been elective and therefore outside the scope of section 103 \u2014 2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 \u2014 2(c)), which provides that persons in custody shall be afforded medical treatment if required; the defendant was in custody until April 7, 1982, when he was released on bond. Dr. Helfrich predicted that the operation would cost more than $600, well in excess of the amount, $250, that may be paid for a defendant\u2019s necessary expert witnesses (see People v. Watson (1966), 36 Ill. 2d 228, 221 N.E.2d 645, extending the statutory provision (Ill. Rev. Stat. 1981, ch. 38, par. 113 \u2014 3(d)), which restricts itself to capital cases, to a prosecution for forgery). Most important, no surgeon was available to perform the operation. Thus, the defendant\u2019s constitutional rights to compel the production of witnesses in his behalf (U.S. Const., amends, VI, XIV; Ill. Const. 1970, art. I, sec. 8) were not violated.\nNor did the court err in refusing to grant the defendant\u2019s supplemental motion for a continuance. The defendant had already been granted the continuance of more than a month so that he could try to arrange for the surgery. The court was not required to wait indefinitely while the defendant searched for a willing surgeon. Allowing the defendant more time would not likely have led to success. The professional assessment before the court of the operation\u2019s dangers, along with the defendant\u2019s own list of the dozen unwilling surgeons, meant that only with great difficulty would the defendant ever be able to find someone who would do the operation. The granting of a continuance is reserved to the discretion of the court. (People v. Pinkston (1976), 44 Ill. App. 3d 357, 357 N.E.2d 1386.) Under the circumstances presented here, the trial court\u2019s denial of the motion for a further continuance was not an abuse of discretion.\nIll\nA\nThe trial court allowed the State to read to the jury transcripts of the testimony that Dr. Walter Rhode and Veve Grant had given at the defendant\u2019s first trial. Rhode died before the defendant\u2019s second trial, and the State could not find Grant. A witness\u2019 previous testimony may be admitted into evidence at a trial, as an exception to the hearsay rule, if the witness has become unavailable and the current opponent of the evidence had the opportunity to cross-examine the witness at the earlier hearing. (Laboy v. Industrial Com. (1978), 74 Ill. 2d 18, 383 N.E.2d 954; People v. Jackson (1968), 41 Ill. 2d 102, 242 N.E.2d 160.) This does not violate, in a criminal proceeding, a defendant\u2019s constitutional rights to confront the witnesses against him. People v. Allen (1974), 56 Ill. 2d 536, 309 N.E.2d 544.\nDr. Rhode was the admitting physician in the hospital emergency room to which the victims were taken after the shooting, and he testified at the first trial regarding the nature of their injuries. The defendant argues that use of this testimony at his second trial was cumulative and unduly focused the jury\u2019s attention on the medical aspects of the case. At the second trial, in addition to the transcript of Rhode\u2019s earlier testimony, the State presented the live testimony of the three physicians who had treated the victims for their various wounds; also, the victims themselves testified about their medical treatment. Rhode was the first doctor to treat the victims of the shooting, and he described their conditions at the time they were admitted to the hospital. His testimony included the locations of various bullet wounds in their bodies. As the first examining physician, Rhode was able to provide information that the other medical witnesses could not. For these reasons, the testimony had probative value, and its use was not cumulative.\nThe State also presented a transcript of Veve Grant\u2019s testimony from the defendant\u2019s first trial. Grant, a resident of the apartment complex where the dispute occurred, saw the defendant and his brother shoot at the unarmed Bolden group. The defendant argues that the State failed to show Grant\u2019s unavailability at the time of the second trial and that her testimony had no probative value.\nIn arguing before trial for the use of Grant\u2019s earlier testimony, the special prosecutor explained that he had traced Grant to West Memphis, Arkansas, but that he had not been able to locate her after that. He also said that he was continuing his efforts to locate her. The State was unsuccessful, however, so ultimately the transcript was used.\nThe record shows that the State made a good faith effort to locate Grant and obtain her presence at the defendant\u2019s second trial. Therefore, the trial court correctly ruled that she was unavailable, which would permit the use of her previous testimony. Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597,100 S. Ct. 2531.\nGrant\u2019s testimony had probative value. She saw the defendant and his brother fire weapons, and she said that the victims did not return any fire. These observations were relevant, for they tended to negate the defendant\u2019s theory that he was acting in self-defense. The court did not err in allowing the transcript to be read to the jury.\nB\nThe defendant also argues that the trial court erred in permitting the State to read to the jury a transcript of his own testimony from his first trial. Here, the defendant was tried alone; earlier he was tried together with his brother, Little Johnnie Wilkerson, and sister, Vivian Turner. There, Little Johnnie Wilkerson decided at the last moment to rely on an alibi defense; the defendant argued self-defense. The defendant asserts that his testimony was influenced by the trial together of the several defendants and by the sudden change in his brother\u2019s defense. The defendant concludes that because he had given this earlier testimony under vastly different circumstances, the trial court should not have allowed the State to use it here.\nAs a general, rule, a defendant\u2019s earlier testimony is admissible against him at a later trial. (Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008; Miller v. People (1905), 216 Ill. 309, 74 N.E. 743; People v. Peterson (1982), 108 Ill. App. 3d 856, 439 N.E.2d 1103.) In the second trial, the defendant was free of course to explain any discrepancies between his current testimony and his earlier testimony. That the presence of the codefendants influenced the defendant\u2019s testimony at his first trial is not a reason to prohibit its later use.\nIV\nOver the defendant\u2019s objections, the jury received instructions on accountability, an aggressor\u2019s use of force, and provocation and retaliation. The defendant argues that the evidence presented at trial did not justify instructing the jurors on these points.\nBoth the State and the defendant are entitled to instructions embodying their separate theories of the case; evidence supporting a particular theory will justify giving an instruction in it. (People v. Isenberg (1978), 60 Ill. App. 3d 325, 376 N.E.2d 778.) The instructions in question were supported by the evidence.\nThe jurors received Illinois Pattern Jury Instruction (IPI), Criminal, No. 5.03 (2d ed. 1981), setting forth the circumstances when one person is accountable for the acts of another; accountability was also included in the various issues instructions on the offenses. The State introduced evidence that the defendant and Little Johnnie Wilkerson acted together in attacking the Bolden group and that the defendant, finding himself out of ammunition, told his brother to shoot Rickey Jones, a friend of the Boldens; Little Johnnie Wilkerson then shot Jones. This evidence tended to establish the defendant\u2019s accountability for his brother\u2019s acts (Ill. Rev. Stat. 1981, ch. 38, par. 5\u2014 2(c)). That a defendant may be guilty as a principal does not preclude instructions on accountability (People v. Taglia (1979), 76 Ill. App. 3d 199, 392 N.E.2d 725); also, accountability instructions may be used even though the defendant is tried alone (People v. Thomas (1979), 72 Ill. App. 3d 28, 389 N.E .2d 1316). It was proper to instruct the jury on that theory.\nThe jurors also received IPI Criminal No. 24 \u2014 25.09 (2d ed. 1981), which sets forth the circumstances when an initial aggressor is justified in using force, and IPI Criminal No. 24 \u2014 25.11 (2d ed. 1981), which provides that a person may not provoke the use of force against himself so that he may retaliate later. These instructions reflect several aspects of the statutory provisions regarding an aggressor\u2019s use of force. (Ill. Rev. Stat. 1981, ch. 38, pars. 7 \u2014 4(b),(c).) These two instructions may be used if the State introduces evidence that the defendant was the aggressor. (People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295.) The defendant testified that he was shot first either by one of the Boldens or their friend, Jones, and only then fired his gun. Other witnesses, however, testified that the defendant appeared with a gun and shot at the Bolden group, who were sitting peacefully and unarmed on their front porch. This testimony justified giving these instructions.\nV\nThe defendant was convicted of three counts of attempted murder, three counts of armed violence, and six counts of aggravated battery. The trial court sentenced the defendant to six concurrent terms of 25 years\u2019 imprisonment on the convictions for attempted murder and armed violence; the court did not sentence the defendant on the convictions for aggravated battery, concluding that they merged with the attempted murder convictions.\nThe State agrees with the defendant that his convictions for armed violence and aggravated battery must be vacated because they are based on the same acts as the convictions for attempted murder. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) This is appropriate here, so only the attempted murder convictions remain, and the sentences for armed violence must be vacated. (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011.) Because of this result, we need not address the defendant\u2019s argument under People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987, and People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, that the armed violence indictments should have been dismissed because they were based on double enhancement.\nThe defendant also argues that his concurrent 25-year sentences for the three attempted murder convictions are excessive and grossly disparate, for his brother received three concurrent 6V2-year sentences for attempted murder, which he pleaded guilty to after remand of his cause.\nA sentence imposed by a trial court will not be altered on appeal \u25a0without a showing that the trial court abused its discretion in imposing that particular sentence. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) At the same time, however, fundamental fairness requires that defendants similarly situated should not receive grossly disparate sentences. People v. Gokey (1974), 57 Ill. 2d 433, 312 N.E.2d 637; People v. Nester (1976), 40 Ill. App. 3d 735, 353 N.E.2d 23.\nIn the case at bar, a rational basis exists to explain the disparity in the sentences imposed upon the defendant and his brother. First, the evidence introduced at trial shows that the defendant was more culpable than his brother. Witnesses testified that the defendant fired a shot into the air, yelled \u201cHold it,\u201d and then began shooting at them. When Jones fell, the defendant stood over him and pulled the trigger several times. The defendant was out of ammunition and yelled at his brother to shoot Jones. Little Johnnie Wilkerson then shot Jones in the leg. The record shows that defendant did the bulk of the shooting and, when he ran out of ammunition, ordered his brother to shoot a wounded man.\nSecond, the defendant had a more extensive and more serious criminal record than his younger brother. Little Johnnie Wilkerson\u2019s criminal record comprises four juvenile convictions in Ohio: assault with intent to rob, breaking and entering, auto theft, and aggravated burglary. The defendant has a longer criminal history, and it includes several violent crimes. In 1969 he was convicted of possessing a loaded gun in an automobile; in 1974 he was convicted of aggravated battery for shooting a person several times; in 1978, he was convicted of disorderly conduct.\nA sufficient basis exists in the record to justify the lengths of the sentences imposed by the trial court. Having examined the record, we conclude that the trial court did not abuse its discretion in sentencing the defendant.\nThe defendant\u2019s convictions for armed violence and aggravated battery and his sentences for armed violence are hereby vacated. In all other respects, the judgment of the circuit court of Champaign County is affirmed.\nAffirmed in part and vacated in part.\nTRAPP and WEBBER, JJ., concur.", "type": "majority", "author": "JUSTICE MILLER" } ], "attorneys": [ "Marian Kurata, of Urbana, for appellant.", "Robert G. Frederick, Special Prosecutor, of Urbana (Robert J. Biderman and John M. Wood, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE B. WILKERSON JR., Defendant-Appellant.\nFourth District\nNo. 4 \u2014 82\u20140400\nOpinion filed April 17, 1984.\nMarian Kurata, of Urbana, for appellant.\nRobert G. Frederick, Special Prosecutor, of Urbana (Robert J. Biderman and John M. Wood, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0527-01", "first_page_order": 549, "last_page_order": 560 }