APPEAL from the Circuit Court of Champaign County; the Hon.
ROGER H. LITTLE, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
On June 16, 1977, the defendant, Sammy Lee Lotts, was charged by an 11-count information with the offenses of murder, attempted murder, and armed robbery in violation of sections 9-1, 8-4, and 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 9-1, 8-4, 18-2). The trial court granted the State's pretrial motion to dismiss counts VII through XI, which included the armed robbery counts. Following a jury trial, the defendant was found guilty of the murder of Joyce Unzicker and the attempted murder of Eugene Randall. On November 21, 1977, defendant was sentenced to concurrent terms of 175 to 500 years for the offense of murder and 75 to 150 years for the offense of attempted murder. Defendant appeals.
On appeal defendant contends that: (1) he was not proved guilty beyond a reasonable doubt, and (2) it was error for the court to have given an instruction regarding the offense of attempted murder which incorporated all the alternative definitions of murder contained in section 9-1(a) of the Code (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a)).
Randall testified for the State that he was the assistant manager of the Central Finance Company in Champaign. At the company offices on June 15, 1977, at approximately 10:15 a.m., he spoke from a distance of approximately three feet with a black male who identified himself as Sam Lotts. Randall later identified this man in court as the defendant. The conversation concerned a loan application the defendant had previously filed with the finance company. The defendant arranged to return at 1:30 p.m. that afternoon. Randall stated that the defendant was in the building for about 10 minutes.
According to Randall, the defendant did not come back that day but returned to the finance company at approximately 10:15 a.m. on June 16, 1977. The defendant sat in the interview chair located an arm's length away at the end of Randall's desk. The defendant said, "Do you remember me?" and Randall responded, "Yes, you're Sammy Lotts." Randall and the defendant then discussed the loan application and the amount defendant wished to borrow. At this point, Unzicker, another employee, approached Randall's desk and informed Randall that he had a telephone call. As he turned to pick up his phone, he noticed a startled look on Unzicker's face. As Unzicker started to back away, he suddenly became aware of a huge explosion but did not immediately realize he had been shot in the neck. He stood up and saw Unzicker run down the aisle toward the back of the building. The defendant lunged at Unzicker but missed, and at this time Randall observed that the defendant had a gun. Randall began to chase the defendant who was pursuing Unzicker down the aisle. Randall came to a stop when he vomited blood, but saw the defendant raise a handgun and enter the coffee room. Randall went out the back door and ran across the driveway to a drive-in bank where he waved to a teller. After seeing the teller begin to dial the telephone, Randall tried to run back to the office but fell down in the parking lot. When police arrived, Randall was unable to talk because of his injury, but wrote the name "Sam Lotts" on a card for one of the officers.
While in the hospital following the incident, Randall was shown a series of photographs. Randall identified a photograph of the defendant as the man who had shot him on June 16. Randall testified that the lighting in his office on June 16 had been excellent. Randall identified the defendant in court "without question" as the man who shot him on June 16, 1977.
On cross-examination, Randall was asked to examine a photograph introduced as Defendant's exhibit No. 1. Randall stated that the photograph was of the defendant. The photograph, however, was of Percy Jones. On redirect examination, Randall stated that the man portrayed in Defendant's exhibit No. 1 had a beard while the man he saw in the Central Finance offices on June 15 and 16, 1977, had no beard. On recross-examination, Randall stated that he did not recall his assailant having any facial hair.
Leota Lafenhagen testified for the State that she had been in the coffee room of the Central Finance Company at approximately 10:15 a.m. on June 16 when she heard a shot. Unzicker ran into the coffee room and told her that Randall had been shot. A man ran into the coffee room chasing Unzicker and raised his hand toward Lafenhagen. At this point, Lafenhagen turned, felt a "numbness" in the back of her head, and heard a noise which sounded like a gunshot. Lafenhagen then heard the man say to Unzicker, "OK, now, you run along to the safe." Lafenhagen saw both of them leave the room. Lafenhagen immediately called the police. As she was placing a second call for an ambulance, Lafenhagen heard another gunshot. Lafenhagen subsequently discovered Unzicker lying in front of her desk.
Approximately two days after the incident, Lafenhagen identified a photograph of the man she had seen in the coffee room on June 16, 1977. Lafenhagen identified in court the defendant as that man. Lafenhagen further testified that she had seen pictures of the defendant on television and in the newspapers prior to viewing the series of photographs. Lafenhagen stated, however, that she had made her photographic identification from her observation of the man in the coffee room and not from pictures in the media. Lafenhagen also acknowledged that she told police after the shooting that she was not sure she could identify the man.
The defendant testified in his own behalf. He stated that he visited the Central Finance Company on Wednesday, June 15, 1977, to inquire about a loan application which had been previously submitted by his mother. He decided not to return that afternoon as arranged.
The defendant maintained that he was never in the Central Finance offices on June 16, 1977. On that morning, defendant stated that he visited the residence of V.W. Fairman in Birch Village at approximately 10 a.m. and talked to Fairman for about 15 to 20 minutes. The defendant said he knew the time because he was wearing his watch. After this conversation, the defendant rode to Bradley Street where he conversed with Abdullah Khan for approximately 25 minutes. He then rode to Bradley Park where he spoke to Jeff Davis for approximately 5 to 10 minutes. Both Fairman and Khan corroborated defendant's testimony.
The defendant further testified that on June 15 and 16, he had sideburns just below his ears, a moustache, and a goatee approximately 1/2 inch past his chin. Florence Lotts, defendant's mother, and Grace Brown, defendant's girlfriend, also testified that the defendant had a moustache and goatee on June 15 and 16.
Following closing arguments, the jury was instructed on the charges of murder and attempt murder. The attempted murder instruction (Illinois Pattern Jury Instructions, Criminal, No. 6.07 (1968) (hereinafter cited as IPI Criminal)) stated that to sustain the charge of attempted murder, the State must prove that the defendant performed an act which constituted a substantial step toward the commission of the crime of murder and that he did so with intent to commit the crime of murder. People's Instruction No. 19 (IPI Criminal No. 7.01) defined murder as follows:
"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual; ...