APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
FITZGERALD, Judge, presiding.
MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
Defendant Michael Akins was found guilty of murder, attempt murder and aggravated battery in violation of sections 9-1, 12-4 and 8-4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1, 12-4 and 8-4) in a jury trial in the circuit court of Cook County. He was sentenced to the penitentiary for not less than 20 nor more than 30 years for murder; not less than 4 nor more than 12 years for attempt murder; and not less than 3 nor more than 9 years for aggravated battery with all sentences to run concurrently.
On appeal defendant contends: (1) he was not proven guilty beyond a reasonable doubt; (2) his murder conviction should be reduced to voluntary manslaughter; (3) the jury should not have been given an instruction on flight; (4) the trial court erred in entering judgment and sentence on the jury verdict of guilty of aggravated battery.
On the evening of August 20, 1971, at approximately 7:30 p.m. a small group of people gathered in front of the residence at 134 East 105th Street, Chicago, Illinois to converse and pass the time. Defendant, who emerged from a nearby alley, exchanged words with Charles Redmon, whereupon they began fighting and wrestled to the ground. Friends and relatives, including George Redmon, Charles' brother, and Helen Rimmer, defendant's mother-in-law, attempted to break up the fight and finally succeeded in forcibly pulling them apart. Shortly thereafter defendant drew his handgun, and fired shots seriously wounding George Redmon and killing Charles Redmon. Two conflicting versions of the shootings were presented to the jury.
George Redmon testified for the State that he was in front of his aunt's property at 134 East 105th Street when he saw the defendant come out of the alley adjacent to the property. Charles Redmon, the deceased, and defendant began talking. After some name calling, Charles attempted to hit defendant but missed. Defendant grabbed Charles and they wrestled to the ground near the curb of the street. George attempted to pull defendant from Charles. Finally, Welborn Freeman pushed George away and Mrs. Chatman (Helen Rimmer) separated Charles and defendant. Charles was lying on the ground and defendant rose to his feet. At that point George turned around and noticed defendant pointing a gun in his direction. George started to run but was shot in the back. The bullet caused him to spin around and he fell to the ground on his back. George further testified that he heard the gun repeatedly fire before defendant shot him again, this time in the leg.
Patricia Driskell testified for the State that when she reached the altercation the defendant was positioned on top of Charles and several people were attempting to break up the fight. When the parties had been separated she bent down over Charles, who was still on the ground, and told him that the fight was over and asked him to come into the house. Then she heard the shots. She looked up at the defendant and observed "sparks coming from his hand." She saw the gun and began to run back to the house. Charles was about seven or eight feet from defendant when the shooting began. She heard a total of six shots.
Welborn Freeman, the brother of Patricia Driskell, testified that Mrs. Chatman asked him to stop the fight. He pulled George from the defendant and thrust him towards the sidewalk fence. As George was getting up off the ground the first shot was fired. He said he turned around and observed that defendant was aiming a pistol at George. Defendant shot George, turned to his left and shot Charles, who was still on the ground, and then turned back to his right and again shot George. Six shots were fired.
Donald Rimmer (a/k/a Donald Chatman) testified for the defense that the defendant was positioned atop the deceased who was striking defendant in the face saying he would kill him. He said he saw Patricia Driskell with a kitchen knife saying "hold him, I will stab him." He pushed her away and helped to break up the fight. His mother, Helen Rimmer, was able to get defendant to his feet. As she was leading the defendant away Welborn Freeman charged the defendant shouting, "Hold it * * *, I am going to kill this * * *." Welborn was three feet away when defendant turned and fired his gun and he used the deceased as a shield when the shooting began. He further testified that he did not see Welborn with a gun or a knife.
Helen Rimmer (a/k/a Helen Chatman), defendant's mother-in-law, testified for the defense that she picked the defendant up and began taking him home when Welborn Freeman ran up behind defendant threatening his life. Defendant rapidly turned around and started shooting. Welborn then picked Charles up using him as a shield. About two or three minutes elapsed from the time Mrs. Rimmer attempted to end the fight to the time the shots were fired.
Defendant testified that he was 21 years old and had been convicted of robbery. The fight had ended when his mother-in-law pulled him up. As he started for home he heard someone from behind and immediately started to fire. He did not observe a weapon or "bother" to look and see who was approaching. He further testified that he only fired his weapon when he heard someone behind him say something using the word "kill." He did not remember the exact words and did not know if the comments were directed at him, but he did remember turning half way around and shooting the gun twice. At that time he was dazed and unaware of all that was happening. After the shootings he stayed at various relatives' homes and then left for Aurora, although an attorney had advised him to surrender to authorities. He obtained a job in St. Charles using the name Larry Alexander. Within two weeks after his arrival in Aurora he was arrested by Aurora police who had observed the car he was driving stop in a no parking zone and block traffic. He told police his name was Larry Alexander, and later that it was Michael Atkins. A search of the defendant's car produced a semi-automatic .25-caliber pistol. It was stipulated at trial that test bullets fired from this weapon were similar ballistically to bullets recovered in the shooting of the Redmon brothers.
Dr. Edward Shalgos, a pathologist, was called in rebuttal for the State. He testified that he performed an autopsy on the body of Charles Redmon and noted the presence of two bullet wounds. One wound was received in the upper region of Redmon's right chest. The point of entry and the course of the bullet through the body indicated to him that the gun was held in a position over the victim. The second wound was received in the back of the victim's right chest. This indicated to him that Redmon had his back toward the person who shot him. He further stated it was most unlikely that both wounds were suffered when Redmon was standing unless the hand holding the pistol was above him.
William Jannotta, a homicide investigator for the Chicago Police Department, testified for the State in rebuttal that Mrs. Rimmer told him she was not at the scene of the shooting.
Defendant first contends he was not proven guilty beyond a reasonable doubt since he acted in the reasonable belief that his actions were in self-defense. He argues that he was justified in using deadly force ...