APPEAL from the Circuit Court of Sangamon County; the Hon.
HOWARD LEE WHITE, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Sangamon County, defendant Robert C. Lykins, Jr., was found guilty of the offenses of felony murder, armed robbery and conspiracy to commit armed robbery and sentenced to a single term of 70 to 150 years' imprisonment. He appeals.
1 The State confesses error in the entry of judgment on the conspiracy charge. Section 8-5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8-5) states that a person may not be convicted of both the principal offense and the inchoate offense, here armed robbery and a conspiracy to commit that offense. The conspiracy conviction is reversed.
We do not list here defendant's numerous claims of error. Each is discussed in the opinion. Defendant does not dispute the sufficiency of the evidence to support the verdict. Actually defendant admits most of the elements of each offense. His defense depends largely upon the weight the jury would give to his exculpatory testimony. We preface a discussion of the points raised by defendant with only a brief summary of the facts.
The facts stated in this paragraph are not disputed by the parties. In the early morning hours of June 28, 1976, defendant, David Anderson, and Rene Eickmann had gone to a gasoline service station in Springfield. The only other person there was the sole attendant, Kevin Smith. Defendant hit Smith at least once and then one of the group cut Smith's throat. At least one of the three then took items of merchandise and money from the station and then the three left. Defendant received part of the monetary proceeds taken. The victim was left on the floor, unconscious and bleeding. He remained alive but in a very serious condition for several months and then died.
2 Defendant maintains that the court committed reversible error in refusing his instruction in the form of IPI Criminal No. 5.04, which stated that defendant was not accountable for the conduct of the others if before the commission of the offense he terminated his effort to promote or facilitate it and either gave "timely warning to the proper law enforcement authorities" or otherwise made "proper effort to prevent the commission of the crime." There was no evidence that he gave "timely" warning to law enforcement officers but the instruction was not refused for that reason.
The evidence in support of the instruction was almost entirely the testimony of the defendant. He admitted being present when plans for the robbery were made but said that he tried to discourage Anderson, who was the instigator, from committing the robbery. He admitted accompanying Anderson to the service station but said that he did so thinking that Anderson would not follow through. The following is the substance of defendant's testimony of the subsequent events. Upon their arrival at the station, Anderson told him that Rene Eickmann, for whom defendant had affection, was in the back room "messing around" with the attendant. He entered the back room, saw Eickmann with her arm around the attendant and, feeling jealous, hit the attendant. As he left the room he saw Anderson with a club in his hand. Anderson told him to put on an attendant's uniform. This reminded him of the robbery plan in which he was to do this and wait on any customers who might come by. He refused and told Anderson that he did not wish to participate in the robbery. Anderson went to the attendant and started hitting him with the club. He screamed at Anderson to stop but Anderson then threatened to kill him. Although he was several inches taller and 20 to 30 pounds heavier than Anderson and had trained as a Golden Gloves boxer, he feared Anderson because Anderson had a club and a knife and had trained for "Kung Fu" combat. He did not remain in the room but was afraid to run away. He was not present when Anderson slit the victim's throat but Anderson told him that he had done this. He did not further participate in the robbery but was afraid to do anything to prevent it. He received part of the proceeds and later shaved his beard at Anderson's request.
Defendant's position is based upon section 5-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 5-2) which defines the conditions upon which one is accountable for the conduct of another. Subsection (c) provides for accountability by solicitation, aiding, abetting, agreeing or attempting to aid others and then states that accountability is negated if:
"Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense." Ill. Rev. Stat. 1975, ch. 38, par. 5-2(c)(3).
Defendant's theory is that by telling Anderson that he would not participate in the robbery and by screaming at him to stop hitting the attendant, he made "proper effort to prevent the commission of the offense." He argues that the jury could determine that his fear of Anderson relieved him of responsibility to otherwise disengage from the offense. He relies upon People v. Rybka (1959), 16 Ill.2d 394, 158 N.E.2d 17, and People v. Lacey (1964), 49 Ill. App.2d 301, 200 N.E.2d 11, where, in affirming convictions, the court stated that withdrawal from criminal activity by one who would otherwise be criminally accountable is accomplished if that person timely disengages, announces to the others his intention to do so and admonishes them to also withdraw.
However, if defendant's testimony were fully believed, he went to the service station with Anderson at the time of the robbery without ever having had the intent to promote or facilitate the planning or commission of the robbery. Under these circumstances, the withdrawal provisions of section 5-2(c)(3) would not be applicable because he would not have originally become accountable under section 5-2. He would not have been part of any scheme from which he could withdraw. Had the jury believed his version, it should have found him not guilty because of never having been accountable rather than because of his withdrawal.
Even if the evidence was such that the jury believed that he at one time acted with intent to facilitate or promote the offense, defendant's testimony does not support a timely withdrawal. In People v. Brown (1962), 26 Ill.2d 308, 186 N.E.2d 321, the supreme court, in affirming a conviction for felony murder and refuting that defendant's contention that a reasonable doubt existed as to his withdrawal, stated:
"To this need may be added the further requirement that the withdrawal must be timely, that is to say it must be `such as to give his co-conspirators a reasonable opportunity, if they desire, to follow his example and refrain from further action before the act is committed,' and it must be possible for the trier of fact `to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummation or has become so inevitable that it cannot reasonably be stayed.' (People v. Nichols, 230 N.Y. 221, 129 N.E. 883, 886; also see: Galan v. State, 44 Ohio App. 192, 184 N.E. 40.) Stated otherwise, withdrawal may not be effectively made from a felony murder when the `transaction which begets it has actually been commenced.' People v. Nichols, 230 N.Y. 221, 129 N.E. 883, 886." 26 Ill.2d 308, 312-13, 186 N.E.2d 321, 324.
Here, defendant attempted a withdrawal, if at all, after he had hit the victim and while Anderson was clubbing the victim. Thus, the force which was an element of the underlying robbery was already being applied. The robbery had commenced. Furthermore, although defendant testified that he screamed at Anderson to stop the beating and refused to proceed with the robbery, he did not testify that he admonished others not to commit the robbery. In fact, he admitted that he later accepted a portion of the ...