APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
James Horton and Milton Golden were indicted and tried for the murder of Roy McCullough. A jury found James Horton guilty and he was sentenced to a term of 25 to 50 years imprisonment. Milton Golden was found not guilty.
Defendant Horton contends on appeal: (1) that he was not proved guilty of murder beyond a reasonable doubt; (2) that he was not adequately represented by counsel during a stage in the trial when the court issued a deadlock instruction to an undecided jury; and (3) that the sentence is excessive.
The record indicates that on October 28, 1971, at approximately 7 p.m., Roy "Paperman" McCullough, who was 17 years old, joined several friends in an alley behind the 1200 block of South Avers in Chicago, Illinois. Included in the group were: John "Rene" Bennie, who was 16 years old; Carter "Bonnie" Gary, who was 17 years old; Carter's brother, Isaac "Rim" Gary, who was 14 years old; and Michael Proud, who was 16 years old. The group had been playing baseball in an alley for about an hour. The alley was well illuminated by several street lights. At trial, Carter Gary, Isaac Gary and John Bennie rendered substantially the same testimony about the circumstances surrounding the death of Roy McCullough.
Carter Gary left the group and walked to a nearby store to purchase a 16 oz. carton of orange juice. In going back to the alley, Carter Gary saw James Horton and Milton Golden on the porch of a two-flat apartment building located at 1246 South Avers. Carter Gary testified on direct examination that James Horton and Milton Golden were holding shotguns. The first floor apartment of the building was vacant and was used as a hangout for a street gang known as the "Insane Maniac Cobras." Both James Horton and Milton Golden were members of the gang.
At a time prior to October 28, 1971, Milton Golden had asked Carter Gary, Isaac Gary and John Bennie to join the "Insane Maniac Cobras." All three testified that they refused Golden's request and that they were not associated with any street gang. John Bennie testified that his life was threatened by Milton Golden two nights prior to October 28, 1971, because Bennie refused to join the gang.
Approximately 20 minutes after Carter Gary returned to the baseball game, James Horton and Milton Golden walked in a northerly direction through the alley passing within 20 feet of the group. Horton and Golden were wearing long black "maxi" coats. They walked with a limp in a "stiff-legged" manner. John Bennie observed James Horton duck into a gangway between two garages in the alley. The gangway, which was approximately 30 inches wide, led to a dead end. John Bennie observed Milton Golden walk about 10 feet beyond the garage and turn into a vacant lot adjacent to the alley.
Shortly thereafter, the group finished playing baseball. Roy McCullough walked north through the alley in the same direction which the defendants had gone. The testimony is inconsistent as to the exact placement of the other members of the group at this time. However, the record indicates that Roy McCullough was walking ahead of the Gary brothers, John Bennie and Michael Proud. A shotgun blast erupted from the gangway between the garages and Roy McCullough grabbed the left side of his face and spun around. John Bennie testified that he "pressed up" against the door of one of the garages and the other boys immediately ran in different directions. John Bennie further testified that a second shotgun blast came from the vacant lot and Roy McCullough fell to the ground. John Bennie stated that he observed James Horton step out of the gangway and "fool around" with his shotgun. Horton stepped back into the gangway and a third blast was fired. John Bennie stated that Horton then ran from the gangway carrying a shotgun approximately 2 feet in length. John Bennie stated that he could only see a gun barrel and a "face" in the vacant lot. He could not identify the person in the vacant lot at the time of the shooting.
Isaac Gary and Carter Gary testified that they both ran from the scene after the first shotgun blast. They both heard pistol shots fired after the shotgun blasts. They both testified that they heard just two shotgun blasts. Isaac Gary stated that he went back towards the scene and saw Michael Proud holding the head of Roy McCullough who was lying in the alley. Both Isaac Gary and Michael Proud stopped police cars and directed the police to the scene.
Officers Ronald Wozniak and Henry Bertucci of the Chicago Police Department arrived in the alley at approximately 7:20 p.m. They found a live 12 gauge shotgun shell approximately 10 feet from the body of Roy McCullough. Photographs of the area were taken and introduced into evidence at trial. Roy McCullough was transported to Mt. Sinai Hospital. Photographs revealed that the front and left side of Roy McCullough's head was inflicted with multiple pellet wounds located in close proximity to each other.
Investigator William Lenz arrived at the alley at approximately 8:30 p.m. The Gary brothers, Michael Proud and John Bennie eventually came to the alley and told Investigator Lenz the same version of the incident which the Carter brothers and John Bennie presented at trial. Lenz observed shotgun blast marks on the walls of the buildings in the alley across from the vacant lot and the gangway. The four boys went to the Maxwell Street Police Station and gave statements to the police.
Neither James Horton nor co-defendant Milton Golden testified in their own behalf. Only Milton Golden called witnesses to testify for the defense.
Michael Proud testified that the group of boys was not playing baseball in the alley behind South Avers on October 28, 1971. He stated that the Gary brothers, Roy McCullough and himself were armed. Everyone was carrying a pistol except Roy McCullough; he was carrying a shotgun. Proud testified on re-direct examination that the group's intention was to shoot members of the "Insane Maniac Cobras."
On cross-examination Proud admitted telling the police on October 28, 1971, substantially the same facts which Carter Gary, Isaac Gary and John Bennie related at trial. Proud also admitted flagging down a police car immediately after the incident. He further testified that the shotgun blast which killed Roy McCullough came from the gangway between the garages. Proud denied on cross-examination that he wanted a reduction in a 90-day sentence, which he was currently serving, in exchange for testifying for the State at trial. However, Proud was impeached by Mr. Neal Walter, an assistant public defender, who testified in rebuttal that Proud wanted a deal on his current sentence ...