APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 26, 1972.
Defendant, Robert E. Lanker II, was convicted of murder after a jury trial and was sentenced to the Illinois State Penitentiary for a term of not less than 25 nor more than 30 years. Defendant raises the following issues for review:
(1) Whether defendant was proven guilty beyond a reasonable doubt;
(2) Whether the court erroneously failed to instruct the jury concerning the proper standard for determination of guilt of the defendant where the evidence is entirely circumstantial; and
(3) Whether defendant's trial counsel was so incompetent as to create a substantial prejudice to defendant without which the outcome of the trial would probably have been different.
The facts are as follows:
On December 26, 1969, at approximately 11:30 P.M., Frank C. LePert was shot in the left side of the head, near the ear, while working as a security guard in front of McDonald's restaurant at 6825 North Clark Street in Chicago. His body was taken to the Northeast Community Hospital where he was pronounced dead and then to the Cook County Morgue where an autopsy revealed that a bullet wound was the cause of death.
On December 26, 1969, defendant and several other youths attended a party at 6624 N. Ashland Avenue in Chicago. At about 9:30 that evening, defendant and four youths left the party and went to the home of one of the youths, Gary Kallas. At approximately 10:15 that evening, defendant and the four other youths left the Kallas home and defendant drove them in his automobile to the McDonald's drive-in restaurant at 6825 N. Clark Street in Chicago. Defendant drove a dark green 1969 Chevrolet Chevelle Malibu, with a black vinyl top. Defendant was wearing a navy blue pea coat, navy blue knit stocking cap and light green slacks. When they arrived at the restaurant, four of the youths including the defendant went inside to order and while inside two of the youths began to play at boxing. The security guard on the premises, Frank L. LePert asked them to leave. The youths left the restaurant and on the way back to their car, one of them, George Roberts, dropped a bag onto the ground. The security guard told Roberts to pick up the bag and when another of the youths attempted to do so, the security guard got angry and insisted that George Roberts do it. Roberts did retrieve the bag. The youths then all returned to defendant's car, but before leaving, defendant in a loud and angry tone profanely told the security guard to get away from his car. The group left the restaurant between 11:00 and 11:30 P.M.
After leaving the restaurant, the youths returned to the party on Ashland Avenue where everyone got out of defendant's car except the defendant himself, who explained that he had business to take care of and drove off.
One of the youths at the party, Miss Donna Lieberman, testified that defendant returned to the party about midnight, and that she asked him if he had gone back to beat up the security guard. Defendant replied that he wouldn't waste his time. Miss Lieberman also testified that the previous day she had seen a holster in defendant's auto.
A customer at the McDonald's restaurant, David Tokoph, testified that on the night of December 26, 1969, at about 11:30 P.M. he was walking out of the restaurant after purchasing some food when he saw a dark green or black 1968 or 1969 Chevelle Malibu with a black vinyl top stop in the middle of the street directly across from the restaurant and he saw the driver, facing the restaurant, roll down his car window. Tokoph identified the driver of that car as the defendant. Tokoph then testified that he heard a gun shot, saw the McDonald's security guard Frank C. LePert fall and saw the car driven by defendant speed away with its wheels spinning. Tokoph saw the auto run a red traffic light at the intersection of Pratt Blvd. and Clark Street and as Tokoph turned to return to his own vehicle, he heard what he thought to be a car wreck.
Charles McBaron, another patron of the McDonald's restaurant, testified that about 11:30 on the night of December 26, 1969, he was walking away from the restaurant when he heard a noise, like a gunshot and turned to see a dark green auto pulling away and Frank LePert the security guard fall. When McBaron rushed over to the guard he found him bleeding from a wound near the back of the head.
Miss Lorraine Jadrick testified that on the night of December 26, 1969, she was proceeding west on Pratt Blvd., reaching the intersection of Pratt Blvd. and Clark Street sometime around 11:00 or 11:20 P.M. When the traffic light turned green she began to turn left onto the southbound lane of Clark Street when a dark late model Chevelle, traveling south on Clark Street went through the red light and struck the right front fender of Miss Jadrick's auto. The car then drove off. Miss ...