APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants were each found guilty of the murder of Henry Carter, the murder of Leslie Scott and aggravated battery and attempt murder of Leo Carter. (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4, 9-1, 12-4(b)(1).) Defendants were sentenced to a minimum of 100 and a maximum of 200 years for each murder and 50 to 100 years for the attempt murder, the sentences to run consecutively. The trial court found that the aggravated battery merged with the attempt murder and did not enter judgment on that verdict. A co-defendant, John Perkins, was found not guilty by the court at a bench trial conducted concurrently with the jury trial.
On appeal the three defendants are represented by the public defender and contend that: (1) they were improperly convicted of both aggravated battery and attempt murder; (2) the imposition of consecutive sentences was improper; (3) they were denied a fair trial since the prosecutor was allowed to show that Scott and Leo Carter were to be witnesses in Elijah Baptist's trial for murder and that Elijah Baptist was the brother of defendant, Michael Baptist; and (4) that the instructions for attempt murder given to the jury were improper. Lawrence and Baptist also filed supplemental pro se briefs and further contend that: (1) by reason of the reference to Elijah Baptist, they were denied due process of law, and the trial judge had a duty to declare a mistrial sua sponte; (2) that the court should have suppressed certain physical evidence before trial; (3) that defendants were denied effective assistance of counsel; (4) that their warrantless arrest was improper since they were engaged in no illegal activity when arrested; (5) the admonishments given by the judge to disregard certain testimony were insufficient; and (6) they were not proven guilty beyond a reasonable doubt. Michael Baptist also contends that the State's key witness, Leo Carter, was incompetent and continually perjured himself. We affirm. The pertinent facts are as follows.
Each of the three defendants was represented by separate counsel at trial, as was John Perkins. Prior to trial defendants filed a motion to quash the warrantless arrests and to suppress any evidence and identification which flowed from the arrest. At this hearing, the State called three witnesses. Officer O'Leary testified that on June 14, 1975, about 12:30 a.m. he responded to a call at 445 West 60th Place and found Leo Carter lying on the floor. He saw that Carter had been shot and asked what happened. Leo Carter told him that his brother, Henry Carter, Leslie Scott, and he had been shot by "Knocks," "Big Red" and Michael Baptist, and that they could be found at 600 West 60th Street. He further testified that he knew "Big Red" to be defendant Wayne Lindsay. He communicated this information to Officer Ferrentino who proceeded to that address. O'Leary waited until an ambulance arrived to take Leo Carter to the hospital and then went to 600 West 60th Street. While there he saw Wayne Lindsay walking east on 60th Street with Calvin Anderson. He told another policeman that Lindsay was a suspect. Wayne Lindsay was immediately placed under arrest.
Officer Ferrentino testified that on June 14, 1975, at about 12:30 a.m. he and his partner met Officer O'Leary at 444 West 60th Place, and they were told by O'Leary that the two victims could be found at 600 West 60th Place, as well as the defendants. Ferrentino stated that Officer O'Leary had told him that one of the defendants, apparently Michael Baptist, lived in that building. While guarding the rear of the building to prevent escape, Ferrentino observed a storage closet to one side of the rear door. The door of the closet was ajar, and the officer looked inside, thinking that Michael Baptist could be hiding there. Ferrentino saw a discarded toilet with two handguns inside, one a .38 revolver and the other a .32 automatic. Both were recovered for evidence.
The two officers remained in the rear of the building until they learned that the suspects had been taken into custody. Michael Baptist had been arrested in the basement apartment which Ferrentino had been guarding. Officer Ferrentino admitted that no search or arrest warrants had been issued for any of the defendants, any apartments or the closet at the rear door.
Finally Officer Benecki testified that on June 14, 1975, about 1 a.m. he spoke with Calvin Anderson about a person named "Knocks." Calvin told him that that would be Lennox who lived in the 6400 block of Hoyne. After questioning Michael Baptist about "Knocks" the police determined that the suspect was Lennox Lawrence who lived at 6458 South Hoyne. He was arrested at about 5 a.m. on June 14, 1975.
Wayne Lindsay testified that he was arrested outside of his home at 600 West 60th Street at about 1 a.m. on June 14, 1975. He stated that at the time of arrest he was not violating any law and was not shown any warrant.
The court then denied the defense motions to quash the arrests and suppress evidence and identification.
Defendants also filed a motion in limine requesting that the State be precluded from referring to Elijah Baptist, any prior incident involving him, or any relationship between him and any of the defendants. Following a hearing, the trial court denied defendants' motion.
The evidence introduced at trial showed that on July 29, 1974, Leslie Scott and Leo Carter witnessed the robbery and murder of one Sam Blue by Elijah Baptist, the brother of Michael Baptist. On September 23, 1974, the two appeared as witnesses for the prosecution at a preliminary hearing concerning the murder. The trial of Elijah Baptist was set for July 15, 1975, and Carter and Scott were included in the State's list of witnesses.
Leo Carter here testified that on the night of June 13, 1975, at about 10:30 p.m., he, his brother, Henry Carter, and Leslie Scott were returning home from a store when they met the defendants Wayne Lindsay, Michael Baptist, Lennox Lawrence and John Perkins on the street. Wayne Lindsay invited them to a party at his home at 600 West 60th Street, and all seven went to Lindsay's second floor apartment. When they arrived at about 11, no one else was present. They all sat in a rear bedroom listening to records and sharing a single pint bottle of wine. After about 45 minutes, Leo Carter asked Lindsay where the women were and Lindsay responded that they were coming. Shortly thereafter, all defendants except Lindsay left the room and then returned a few minutes later. Defendant Lawrence asked the others if they were ready and each nodded his head up and down. Lawrence then put a gun to Henry Carter's head and Lindsay put a gun to Leo Carter's head while Baptist and Perkins held Leslie Scott. They exited to the rear of the building, down a back stairway, and into the lot behind the building. They walked to the loading docks of a beer factory which was about 500 feet to the rear (north) of Lindsay's home. There Lindsay asked Leo Carter "who told on his cousin." When Leo replied that he did not know, Lindsay told Leo that he liked him but he had to do it. Lindsay put the gun to the bridge of Leo's nose and shot him between the eyes. When Leo fell to the ground, Lindsay shot him again in the back. Leo said that he saw Lawrence shoot his brother Henry in the head and chest and his brother fell beside him. Leslie Scott was also shot to death, although Leo did not see his shooting. Leo watched as the defendants ran back to Lindsay's building, and then he crawled to his cousin's house at 444 West 60th Place, a distance of about two blocks.
Over the defendants' objections Leo was permitted to testify that he and Leslie Scott had witnessed the robbery and murder of Sam Blue and that Elijah Baptist shot Blue. He further testified that Michael Baptist had told him that Elijah was his brother. On examination by the court, outside the presence of the jury, Leo also stated that Elijah and Wayne Lindsay referred to each other as cousins.
The court would not allow the State to show that Elijah was convicted of Blue's murder and instructed the jury to consider Leo's testimony solely for the purpose of establishing motive for the murders and for no other purpose.
There were several inconsistencies in Leo Carter's testimony which are relevant on appeal. At trial, he testified that he had told Officer O'Leary immediately after the shooting that all four defendants were involved. O'Leary testified that Leo named only Lindsay, Baptist, and Lawrence as his attackers on June 14, 1975. O'Leary's report included only those three names. Perkins was not mentioned until sometime later. Also, Carter testified that he saw Wayne Lindsay shoot him in the back; however, it appears from a police report that he had previously told the police that after the first shot he was unconscious and did not remember anything. Finally, at trial Carter stated that he did not know Calvin Anderson but a police officer testified that Carter and Anderson were friends.
Officer Ferrentino of the Chicago Police Department testified that on June 14, 1975, he and his partner received a call and proceeded to 444 West 60th Place, arriving at about 12:35 a.m. They found Officer O'Leary speaking to Leo Carter, who was lying on the floor. O'Leary was repeating what Carter said, and Ferrentino testified that Carter told O'Leary that there were two other bodies and that the defendants could be found at 60th and Wallace (600 West 60th Street).
Officer Ferrentino and his partner proceeded to the beer factory and found the bodies of the two victims, "as Leo had directed us to that location." At that point, defendants' counsel objected that what Leo directed was hearsay and should not be admitted as evidence. The court sustained the objection and the jury was instructed to disregard the statement.
Officer Ferrentino continued and testified that he next went to the rear of the building at 600 West 60th Street, where he discovered the two handguns, as testified at the hearing on the motion to suppress the evidence. He waited there until an evidence technician came to retrieve the two weapons. While at 600 West 60th Street he also saw two people in police custody. He later learned that they were Wayne Lindsay and Michael Baptist.
About 5 a.m. Officer Ferrentino arrested Lennox Lawrence at his home at 6458 South Hoyne. John Perkins was not arrested until sometime later since Leo Carter apparently did not tell the police of his involvement until after June 14, 1975.
John Olejniczak, a Chicago Police Department fingerprint technician, testified that he had made a comparison of a print found on the .38 revolver and determined that it matched the right ring finger of Lindsay.
John Sadunas, a Chicago Police Department firearms expert, testified that in his opinion the bullets which were recovered from the murder victims were fired from the two pistols recovered from the toilet.
After the close of the State's evidence, the three defendants made a motion for a directed verdict, which was denied.
Only defendant Lawrence took the stand in his own behalf. He stated that on the night of June 13 he had gone to bed at about 9 p.m. and did not awake until the police arrested him at about 5 a.m.
After the close of all the evidence, the defendants again made a motion for a directed verdict, which was denied. The jury instructions were then discussed. The court noted that it had instructed the jury to consider Leo's testimony regarding his witnessing Sam Blue's murder by Elijah Baptist solely for the purpose of establishing motive in the present case. The court indicated that it would again include this limiting instruction in its charge to the jury. The defense attorneys objected that it would unfairly highlight that testimony and the instruction was not given. No objection was made by defendants to the instructions on attempt or the definition of murder. After the jury had been instructed and retired, defendants moved for a mistrial based on allegedly improper comments made in the State's closing argument. This motion was also denied.
The jury found the three defendants guilty of all counts, including the aggravated battery and attempt murder of Leo Carter. Perkins was found not guilty by the court. In entering judgments on the verdicts, the court observed, "I am going to enter judgment on the attempt murder of Leo Carter because the aggravated battery count would merge in attempt murder, so I am entering judgment on the attempt murder of Leo Carter * * *."
After a hearing in mitigation and aggravation, the court sentenced each defendant to consecutive sentences of 100 to 200 years for each murder and 50 to 100 years for the attempt murder.
Defendants first contend that they were improperly convicted of both the aggravated battery and attempt murder of Leo Carter and ask that the conviction for aggravated battery be vacated. Unlike People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1, relied upon by defendants, no judgment was here entered on the verdicts for the lesser included offense of aggravated battery. Here, the trial court did instruct the jury and provide verdict forms on both offenses. Since the evidence clearly proved both charges, the jury properly returned guilty verdicts on both. ...