APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
The defendant, Marc Anthony Bell, was convicted of two murders in Winnebago County, Illinois. The facts in the case are:
The defendant, Marc Anthony Bell, went to the home of his girlfriend in Rockford in the early evening hours of November 30, 1974. The two victims, Orvis and Grebus, had been drinking throughout the afternoon and early evening of that date. They arrived at the street location where the defendant was waiting for his girlfriend with his car facing north. The victims found the defendant's car blocking the street, as there were cars parked on either side. Victim Orvis exited his automobile and came and stood in front of defendant's car, pounding on the hood and being generally abusive in his language. The defendant, however, backed up, passed around Orvis and his automobile, and proceeded in a northerly direction approximately 100 feet, at which point he parked his car, exited the car, and came back towards the victims. As the two victims advanced toward the defendant, the defendant pulled a gun and killed each of them by shots to the head.
The sister and girlfriend of the defendant testified in his behalf, and each presented a somewhat different version, in that they said that the victim, Orvis, who had pounded on the hood, had reached through the open window of the automobile and seized the defendant and tried to pull him out of the car.
The defendant's version was related to Detective Donelli at the time of his apprehension in Racine, Wisconsin, and was testified to by Donelli at trial (defendant declined to testify). Donelli said that the defendant drove around victim Orvis and had the struggle with victim Grebus. After firing warning shots, defendant shot victim Grebus and immediately thereafter was charged by victim Orvis coming northerly toward him, whereupon the defendant again fired a warning shot or shots and then fired and killed the victim, Orvis.
A neighbor testified for the State and said that she saw the defendant's car parked north of the location of the bodies and saw a man pass in front of and north of victim Orvis' car, enter the car and drive away at a high rate of speed.
It is undisputed that defendant drove to a club, had a drink, called his girlfriend and was driven to his home by a third party, and then was taken by his mother to Racine, Wisconsin, where he was apprehended and questioned as indicated by Detective Donelli, at which time he gave the statement herein referred to.
Defendant's version asserts that he merely resisted the two victims, who were admittedly physically larger, but unarmed, and that he should be found guilty of manslaughter, but not guilty of murder. Donelli testified that defendant said he had thrown the automatic pistol used in the incident, in a lake in Wisconsin. The defendant disavows the testimony of his girlfriend and his sister as being "incredible," although they were called and testified in his behalf and were the sole surviving witnesses to the incident other than the defendant himself.
After the close of the testimony, a motion for a directed verdict was made and same was denied. The case was argued at considerable length by both the assistant state's attorney and the assistant public defender, and the jury returned a verdict of guilty on both charges of murder.
• 1 Defendant contends that his guilt was not proved beyond a reasonable doubt. We disagree with defendant's contention. The jury heard and observed the witness' testimony and the arguments thereon.
"It is the province of the trier of fact to settle conflicts in evidence and to determine * * * whether the circumstances attending the assault were such that the death at defendant's hands constituted murder, manslaughter or justifiable homicide. (People v. Brumbeloe, 97 Ill. App.2d 370, 240 N.E.2d 150. * * *" People v. Kendricks (1972), 4 Ill. App.3d 1029, 1033, 283 N.E.2d 273, 276.
It is noted that the eyewitness, Patricia Struthers, who observed the defendant leave the area, directly contradicted defendant's version of the placement of the cars. Ms. Struthers testified that the person who drove defendant's car away walked in front of the headlights. From her point of observation, Ms. Struthers could have seen the person who drove defendant's car away only if that car were north of victim Grebus' car. The jury may well have concluded that the defendant had removed himself from the area of danger of assault to his person at the hands of the two unarmed and partially intoxicated victims and then stopped his car and returned to the location of the victims.
• 2 The defendant takes the position that since his version of the incident is "not improbable, nor uncorroborated, nor contradicted in its material parts," it may not be disregarded by the jury. (People v. Jordan (1954), 4 Ill.2d 155, 163, 122 N.E.2d 209, 213.) It is also true, however, that the jury is not compelled to accept the defendant's version of the homicide as conclusive. The surrounding circumstances and the probability or improbability of the defendant's story must also be considered. (People v. Wiggins (1957), 12 Ill.2d 418, 147 N.E.2d 80.) The jury is not bound to accept the defendant's exculpatory statement as true, even in the absence of directly contradicting evidence by other witnesses. (People v. Aarhus (1969), 111 Ill. App.2d 167, 248 N.E.2d 820.) In taking into consideration whether the defendant's version of the incident is probable or improbable and whether that version conforms to the surrounding circumstances of the case, it may well be that the defendant's version was rejected by the jury after considering the surrounding circumstances. Those circumstances were the fact that the defendant immediately fled from the scene at a high rate of speed, took himself to a club where he had one or more drinks, called his girlfriend, who had left his automobile during the shooting, gave the gun to a friend to keep temporarily, gave his automobile to another person to drive to his home, sought a ride with a third party to go to his home, from which location he was taken by his mother and secreted in a cousin's house for two days and then driven over the state line to Racine, Wisconsin, where he threw the automatic pistol into a lake.
There is no showing in the record whether or not defendant had any prior knowledge as to what the testimony of his girlfriend or his sister would be. It stands to reason, however, that defendant thought that their testimony would be beneficial to him, otherwise, he would not have called them as witnesses on his behalf. Defendant now says that their testimony was so incredible that it highlighted or heightened his decision not to testify, ...