APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment entered on the verdicts of a jury finding all defendants guilty of involuntary manslaughter. Each was sentenced to three to 10 years imprisonment. Their appeals have been consolidated for review, and they jointly present the following issues: (1) whether a conviction for involuntary manslaughter is legally sufficient when grounded on an accountability theory; and (2) whether they were denied a fair trial by certain prosecutorial remarks in closing argument. Four defendants Armstrong, Bolden, Cunningham and Mosley also contend that they were not proved guilty beyond a reasonable doubt. In addition, three defendants individually contend that each was denied a fair trial through the following means: (1) Bolden's pretrial silence was used against him; (2) evidence of an unrelated crime was improperly adduced against Johnson; and (3) Cunningham was denied the right of confrontation. Lastly, four defendants Bolden, Houston, Johnson and Mosley argue that giving a motive instruction in the case at bar was cumulative error.
It appears that at approximately 1 a.m. on August 20, 1974, a group of young men fired 15 to 20 shots in the first floor breezeway of an apartment building, and two of these rounds fatally wounded Mary Alice King who had been standing near the eastern edge of the breezeway. Shortly before any gunfire was heard, Mary Alice's brother (Pierre) and several friends, including Willie Jackson, were playing in a grassy area adjoining the building to the east. Also, Cornell Newsom was sitting in front of a first floor apartment 20 to 40 feet from the eastern edge of the breezeway, and Dale Cathery (Mary Alice's first cousin) was in a stairwell which opened onto the breezeway.
At trial, Pierre testified that he and a friend were wrestling when his attention focused upon the eastern edge of the breezeway, where he saw his sister standing, and he then observed Armstrong *fn1 as he turned the corner of the breezeway carrying a shotgun. Almost immediately thereafter, he heard a gun discharge. Although his vision was momentarily distracted, he said that several more shots were fired and that he heard Mary Alice shout, "Weasel," which he knew to be Armstrong's nickname, and an unidentified voice saying, "Damn Bun, you shot a girl." After a total of 15 to 20 shots were fired, Pierre observed Armstrong (still carrying the shotgun) leave the breezeway followed by Bolden, Houston and Johnson, who were carrying handguns. Thereafter, Pierre ran to the north side of the building, where he saw Bolden and Cunningham enter an automobile which was driven away.
Newsom testified that he saw Mary Alice standing near the breezeway when shots were fired and, upon hearing gunfire, he and his friends ran up to the second floor. While running, he looked over his shoulder and observed Armstrong enter the breezeway with a shotgun. Once upstairs, he heard the sound of approximately 20 rounds being fired below. While intermittent gunfire was taking place, he crept downstairs and saw Houston (whom he knew as "Honey Boy" or "Bun"), Bolden, Johnson and Armstrong holding guns as they stood around Mary Alice. He further observed Johnson firing his gun in the air as he warned tenants in nearby apartments not to peer out of their windows. He also heard Armstrong, who he knew as "Weasel," shout "Bun, you shot a girl," and Houston (whose nickname was Bun) reply, "I didn't shot a girl, you shot a girl."
Cathery testified that she was about to enter the breezeway from a stairwell when she heard the sound of gunfire. She remained in the stairwell for two or three minutes after the gunfire had subsided and at this time observed a group of young men one of whom shouted, "Weasel" running through the breezeway. She also saw Mosley running through the breezeway, but he was separate and apart from the group, and she noted that he carried something in his hand which looked like a gun. She could not, however, be sure that it was a gun.
Thereafter, Pierre, Newsom and Cathery converged at the eastern edge of the breezeway, finding Mary Alice lying in a pool of blood. A representative of the coroner's office testified that she died of two gunshot wounds, but he recovered only one .38-caliber bullet from the body and no shotgun pellets.
Officer Eichler testified that when he arrested Houston on August 22, the latter's mother accompanied them to the police station. In Eichler's presence she told her son, "You go with the officers and you tell them the truth. I just want you to tell the truth." She was asked whether she would like to stay, but she declined. Houston was then read the Miranda warnings, at which point he declared his intent to tell the truth and stated that he had been at the scene of the incident in question; that he carried and fired a shotgun; that he called out his own nickname, "Honey Boy"; and that he fled without knowing that a girl had been shot.
The first witnesses for the defense were Cunningham's parents and sister, who testified that he was hospitalized from July 12 to August 10, 1974, as a result of a gunshot wound. This testimony was substantiated by the stipulated testimony of two physicians from Provident Hospital. Each member of his family further testified that when Cunningham left the hospital, he remained in their apartment including the time of the occurrence in question and that he was not able to leave without assistance.
Bolden, a witness in his own behalf, his wife and Lawrence Ames testified that they and Ames's wife were playing cards and watching television in the Bolden apartment from 10 p.m. August 19 to 1:30 to 2 a.m. of the next morning, and that Bolden never left the apartment during this period. On cross-examination, however, defendant admitted that he told the police only that he was at home at the time of the incident, without mentioning that others were with him.
Armstrong, testifying on his own behalf, stated that he watched television in his bedroom from 9 p.m. on August 19 until the last show ended. He then retired and remained in bed until 11 a.m. of the following day. He further testified that he was not a gang member, but that Pierre was a member of the Blackstone Rangers gang led by Willie Jackson, an occurrence witness who was not called to testify.
The jury was instructed as to the elements of murder and accountability upon the request of the State and as to the elements of involuntary manslaughter upon the request of the defense.
1-3 Defendants initially contend that an involuntary manslaughter conviction is legally insufficient if grounded on an accountability theory. We disagree.
"A person who kills *fn2 an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly." (Ill. Rev. Stat. 1973, ch. 38, par. 9-3(a).)
To be accountable for the acts of another, one must have a specific intent to promote or facilitate the commission of a crime. (People v. Ramirez (1968), 93 Ill. App.2d 404, 236 N.E.2d 284.) As stated in People v. Hill (1977), 53 Ill. App.3d 280, 284, 368 N.E.2d 714, 717, the State is deemed to have proved such intent "where it establishes `beyond a reasonable doubt that defendant shared the criminal intent of the principal, or that there was a community of unlawful purpose.' [Citation.] A community of purpose or common design may come as a result of either prior deliberation that the purpose or design be fulfilled by the commission of a specific offense [citation] or the spontaneous and combined participation of a group in the perpetration of an offense [citation]." To be guilty of involuntary manslaughter one need not intend that death ensue from his reckless acts, as the only mental state required is a conscious disregard of a substantial and unjustifiable risk that death or great bodily harm will be the result of such acts. (People v. Parr (1976), 35 Ill. App.3d 539, 341 N.E.2d 439; People v. Carlton (1975), 26 Ill. App.3d 995, 326 N.E.2d 100; People v. Towers (1974), 17 Ill. App.3d 467, 308 N.E.2d 223; People v. Bolden (1968), 103 Ill. App.2d 377, 243 N.E.2d 687.) The repeated discharge of a gun in a confined area is such a gross deviation from the standard of care which a reasonable person would exercise that it constitutes recklessness. See People v. Bauman (1975), 34 Ill. App.3d 582, 340 N.E.2d 178; People v. Bembroy (1972), 4 Ill. App.3d 522, 281 N.E.2d 389.
4 In light of the foregoing authority, we believe that more than one person can share a conscious disregard of a substantial and unjustifiable risk that death or great bodily harm will result from their participation in aiding and abetting each other's reckless conduct. In such circumstances, participants would have formed the specific intent to promote or facilitate the commission of the crime of involuntary manslaughter. Therefore, we cannot ...