Appeal from the Circuit Court of Kane County; the Hon. John S.
Petersen, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The defendants, Louis Viser, Sellie Viser, Lloyd Viser, Jim Brown, Carl Neal, Willie Freeman, and Harvey Smith, were indicted for the murder of Hector Jordan and the attempted murder of Harold Smith. The jury found Brown, Neal and Smith not guilty. Louis Viser, Sellie Viser, Lloyd Viser and Willie Freeman were found guilty of murder and attempt murder, and were sentenced to consecutive terms of imprisonment of not less than 199 nor more than 200 years for murder and of not less than 10 nor more than 20 years for attempt murder. The case is here upon the direct appeal of the convicted defendants, pursuant to former Rule 603.
The evidence presented at the trial was extensive and often contradictory. In addition to the testimony of the defendants and their companions, and that of Harold Smith and his wife, there was the testimony of seven independent eyewitnesses who were in the area at the time.
On September 19, 1970, a party was held at the home of Mrs. Berta Maley, at 727 Spring Street in Aurora, Illinois, to celebrate the promotion and transfer of her brother, Hector Jordan, to the Madrid, Spain, office of the Bureau of Narcotics and Dangerous Drugs. Among those in attendance were Harold Smith and his wife, Emily. Smith was a police officer in Anderson, Indiana, and had formerly been Hector Jordan's partner when both men were special agents with the Treasury Department. Shortly after 2 a.m. on September 20, 1970, Smith and his wife left the party. Hector Jordan accompanied them to their car, parked on the north curb, facing west, about 30 yards east of the Maley house. Both Smith and Jordan were carrying sidearms, as they usually did. Mrs. Smith got into the car and the two men remained talking near the open door on the driver's side. Some other friends who were leaving the party pulled alongside in their car, also facing west. After conversing for a few minutes with Smith and Jordan, they left.
Shortly thereafter, a black Ford headed east stopped sharply a few yards from the rear of the Smith car. The rear door on the driver's side of the Ford was partially open and Sellie Viser's legs were dangling out as though he was getting out of the car. The driver of the car, Jim Brown, jumped out and tried to prevent Viser from getting out, yelling, "You crazy sonofabitch, get back in there." Harold Smith and his wife testified that they then heard a voice inside the car say, "We'll teach those motherfuckers to block the road."
Brown testified that the defendants had been together at a local tavern and were on their way to another party, their route taking them down Spring Street. The defendants Sellie Viser, Carl Neal, and Harvey Smith, as well as their female companions, Dora Hadley and Jewel West, were in Brown's Ford. The other co-defendants followed in a black Corvair driven by Nancy Wisely. The occupants of the Ford testified that, on the way to the second party, Jewel West told Sellie Viser that she didn't want to go and that she had enough money for cab fare. Sellie Viser jokingly replied that, if that was so, he'd let her out right there so she could catch one, and with that he told Brown to stop and opened the rear door of the moving car as if to get out. Brown testified that this caused him to come to an immediate stop. He got out to close Viser's door, which was broken and had to be lifted slightly from the outside before it would shut. According to the occupants of Brown's car, while he was trying to do this and was yelling at Viser to get back into the car, Smith and Jordan came over with drawn guns and, without identifying themselves as police officers, asked what was going on. Brown testified that he told them to go away and that nothing was going on. Brown and two other occupants of the car testified that Smith said something to the effect that "We'll kill all you niggers." Smith and Jordan walked back to Smith's car and holstered their weapons. Some of the occupants of Brown's car testified that they left the car and ran for safety when Smith and Jordan came up with drawn guns.
As Smith and Jordan were returning to Smith's car, the other co-defendants drove up in Nancy Wisely's black Corvair and stopped immediately behind Brown's car, with the rear bumper of their car approximately even with that of the Smith car. Louis Viser, Lloyd Viser, and Willie Freeman, with their female companions Toni Donaldson and Sandra Foster, were in the Corvair. Louis Viser walked up to where Brown was and asked what was happening. Sellie Viser, still sitting in the car, replied that Smith and Jordan had "pulled guns on us for no reason." Louis Viser then started to walk over to Smith and Jordan. He was stopped by Brown, but he yelled at Smith and Jordan, "Don't ever pull a gun on my brother again." Willie Freeman testified that, when he got out of the Corvair, he walked over to Smith and Jordan and asked them what was wrong, and that Smith told him that he had better talk to his companions. Freeman testified that he then asked Smith and Jordan whether the matter couldn't be settled without the need for guns, and Smith and Jordan turned to leave. At this point Louis Viser yelled his warning at Smith and Jordan, causing Smith to reach for his gun again. Freeman testified that he lunged at Smith's gun hand to prevent him from drawing his weapon, and a scuffle ensued.
Smith testified that he and Hector Jordan remained at his car when Brown's Ford stopped nearby, but drew their weapons and identified themselves as police officers after approximately 6 to 10 people got out of the car, and 5 to 7 males started toward them. According to Smith, this caused the crowd to return to the Ford about the time Nancy Wisely's black Corvair drove up. Smith testified that one of the occupants of the Ford told one of the newcomers that guns had been pulled on them for no reason, at which time a newcomer yelled at Smith and Jordan that they couldn't do that to "a brother." A fight broke out at the rear of the Ford as the newcomer was restrained. Smith testified that, in his opinion, the man appeared to be drunk or high on drugs. According to Smith, Willie Freeman then came up to him and asked, "Man, what's going on?" to which Smith replied, "Man I'm a police officer. If you guys don't want to go to jail, get your people out of here." Freeman allegedly responded to this with, "You're a police officer. You got a gun. I want it." When Smith replied, "Ain't no way, Baby," Freeman allegedly said, "Then I'll take the sonofabitch," and lunged for the gun. Smith testified he pushed the gun down in the holster to keep it from Freeman, and about three men began to punch him. His feet were pulled out from under him and he fell to the ground, still being wrestled for the weapon. Smith testified that, during this time, he kept repeating to the men that he was a police officer. Willie Freeman later admitted that he knew this fact. According to Smith, Freeman kept saying that there weren't any "white motherfucking cops" going to pull guns on them and get away with it, since this was "their territory." Lloyd Viser, Harvey Smith, and Jim Brown participated in this fight, together with Willie Freeman. As the fight went on Louis Viser ran back to the Ford to get a bumper jack. He was apparently joined by Sellie Viser, who got a tire tool, but it was not clear from the evidence whether either man actually used these instruments in the fight.
When the fight between Harold Smith and Willie Freeman began, Hector Jordan was standing on the passenger's side of the Smith car. He drew his weapon and, resting it on the roof of the car, told Freeman and his friends to "back off." Louis Viser then came up behind Jordan and began wrestling for his gun. He was joined by Sellie Viser, who claimed he punched Jordan in the head and then took his gun from him. As soon as Sellie Viser had Jordan's gun, he pointed it at the ground and fired five shots.
At about this time Harold Smith's gun was pulled out of its holster and discharged, nicking Jim Brown in the little finger. Smith testified he was hit with a pipe and lost control of his weapon. As he felt it go, he yelled to Jordan, "They've got my gun, Hector. Shoot them."
At this point, both white men were disarmed and down on the ground. Independent eyewitnesses testified that the attackers nevertheless continued to kick and beat the motionless forms of Smith and Jordan. Words to the effect of "Kill them. Finish them." were shouted by members of the group on several occasions. Finally, one of them yelled that the police were coming, and the group fled. Before they left, however, Lloyd Viser went over to the motionless form of Hector Jordan and jumped on his chest twice, each time landing with both feet. As he ran away, he was heard to say, "I got that motherfucker good." Meanwhile, Sellie Viser ran up to where two eyewitnesses were standing, threatened them with Jordan's gun, and told them they had better get inside if they didn't want to get shot.
At the trial, the State proved that Hector Jordan's blood type was A-1, Harold Smith's was A-2, and that all the defendants had blood type O except Carl Neal, who had type B. The State showed that Lloyd Viser had blood of type A-1 on his shirt and chest and of type A-2 on his shoe. Willie Freeman was shown to have blood stains of type A-1 on his undershirt. The State also offered expert testimony that Hector Jordan died two weeks later of pancreatitis caused by severe abdominal injuries he received in the incident.
On appeal, the defendants raise these issues: (1) the trial court lacked jurisdiction to try the defendants because the indictment failed to charge the offenses of murder and attempt murder properly; (2) the evidence failed to prove each convicted defendant guilty beyond a reasonable doubt; (3) the representation of the defendants was incompetent and deprived them of due process of law; (4) the court committed prejudicial error in its instructions to the jury; (5) the prosecutor's statements in his closing argument misinstructed the jury and denied the defendants a fair trial; and (6) the sentences are excessive and should be reduced and made concurrent instead of consecutive.
The first contention of the defendants is that the court lacked jurisdiction to try them because "the indictment fails to properly charge the offenses of murder and attempt murder." We consider first those counts that charge murder. All of them are identical, with the exception that count I charges all of the defendants with murder, and each of the other counts charges a single named defendant with murder and charges the other defendants as accessories. The following portion of count I illustrates the basis of the defendants' contention. It charges that the defendants committed murder in that they:
"* * * unlawfully, feloniously and without lawful justification, killed another individual, to-wit: HECTOR JORDAN, by inflicting upon him or causing to be inflicted upon him injuries which caused his death on the 14th day of October, 1970, by striking and beating him, both before and after felling him to the ground, the same being then and there done with their fists, and/or feet, and/or an instrument or instruments unknown to the Grand Jury, and when in the performance of said acts which caused the death of said HECTOR JORDAN they, (1) either intended to kill or do great bodily harm to the said HECTOR JORDAN, or knew that their said acts would cause death to said HECTOR JORDAN, or (2) they knew that their said acts created a strong probability of death or great bodily harm to said HECTOR JORDAN, or (3) they were attempting to commit or were committing a forcible felony upon said HECTOR JORDAN, to-wit, Aggravated Battery in violation of the Illinois Criminal Code of 1961, as amended, Section 12-4(a), in that they, in committing a battery, intentionally or knowingly caused great bodily harm to said HECTOR JORDAN; all of the aforesaid occurring in the City of Aurora, County of Kane, State of Illinois."
It is the position of the defendants that "aggravated battery, as an included offense of murder, cannot be the underlying felony in a felony murder charge where the aggravated battery is alleged to have been committed against the person who eventually dies." The issue presented is described as one of first impression in Illinois, and the defendants' argument is based upon decisions rendered under statutes which differ from those of Illinois.
Our statute defines murder as follows:
"(a) A person who kills an individual without lawful justification commits murder if, in performing the ...