APPEAL from the Circuit Court of Cook County; the Hon. VINCENT
BENTIVENGA, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Benny J. Mumford and Willie Ray Rankins were jointly indicted and tried before a jury for the murder of Willie Yates. Both were convicted, Mumford on the theory of accountability. Mumford was sentenced to 15 to 20 years and Rankins to 25 to 35 years. Both have appealed.
In this court separate briefs have been filed for the defendants by different attorneys. Counsel for Mumford urges that the evidence was insufficient to convict on the basis of accountability; final argument of the prosecutor was improper and the trial court erred in giving the jury a confusing and misleading instruction on the issues. Counsel for Rankins urges that Rankins was improperly denied counsel of his own choosing; the defenses of the co-defendants were antagonistic so there should have been a severance; the trial court improperly excluded an exhibit bearing on self-defense; the closing argument of the prosecutor was improper and the instruction on the issues was confusing and misleading.
The fiancee of the deceased testified that after the incident she saw her Ford automobile with bullet holes in the windshield which were not previously there. A police officer testified to finding the deceased lying face down in the snow at about 11:30 p.m. on January 22, 1976. The automobile which deceased had driven stood nearby with bullet holes in the windshield. The engine was running.
Another witness, John Bishop, testified that he was drinking with friends on the date in question. He visited a liquor store with Mumford. Upon their return, Mumford remained on the first floor of an apartment building. The witness went to the second floor where he had more drinks with defendant Rankins, the latter's mother and Rankins' common-law wife. Shortly thereafter the witness went to the front porch. He saw Rankins and the deceased some 6 or 7 feet apart. The men were arguing. The deceased "made a move" and Rankins drew his gun and shot at him. The victim left and walked some 20 feet to an automobile he had been driving. The deceased entered the car and Rankins walked over to the driver's side. The witness heard two more shots. The deceased got out of the car. He walked "[s]lumped over like." The witness then left.
Another witness, Phyllis McCurry, who lived in the same building, went up the front stairs and saw a stranger talking with Rankins. The witness identified the stranger as the deceased. The victim told Rankins that he had sold him "bad dope." The victim said he "wanted his money back." The witness then went upstairs. She returned about 45 minutes later. Rankins and the deceased continued to talk. Rankins suggested to the deceased that they go outside to settle the matter. The witness saw Rankins with a gun in his hand. Mumford asked Rankins what was happening and took his arm. Rankins left the apartment. The witness then saw the deceased in the car and saw Rankins walking toward the car door. Rankins stood so that the car door was held open. Rankins then stepped back and fired twice. The deceased left the car. He was standing bent over. The witness then saw Mumford standing by the car. The witness also heard Mumford telling Rankins twice to shoot the victim. Mumford moved around the car and caught up with the deceased. Mumford then struck and kicked the deceased who fell to the ground. Rankins stood there, gun in hand. Shortly thereafter the witness heard Mumford tell other persons present to say nothing.
Another witness, Jerry Stamps, heard Rankins arguing with somebody on the second floor. He recognized the voice of the deceased. The argument continued on the outside porch. The witness saw Rankins, gun in hand, walk behind the deceased. Rankins asked a number of people if he should kill deceased. Several of these persons, including Mumford, urged him to do so on more than one occasion. Rankins then shot the victim. Mumford ran over to the victim in the middle of the street and struck him several times. The deceased fell with his face in the snow. Mumford then hit the deceased with a cupped hand up and down around the head and neck. The witness did not know if Mumford had anything in his hand. Rankins then fired another shot.
A forensic pathologist testified that there was a bullet wound on the left side of the chest of deceased. This bullet had pierced the lung and heart and was the cause of death. There were three stab wounds at the base of the neck and one cutting wound on the nose. These wounds could not by themselves have caused death but could have been a contributory factor. Marks on the arms and hands of the deceased showed use of narcotics as did the presence of morphine in the body.
A witness named Willie Poe was the only witness for defendants. He testified that on the day in question deceased came to the Rankins' apartment and threatened Rankins' mother. Rankins told the deceased not to do this. The witness testified that the deceased had a bad reputation for violence. On cross-examination by the State, the witness testified that the argument between deceased and Mrs. Rankins was concerned with narcotics she had sold deceased. She might have been selling narcotics from the apartment in which defendant Rankins lived.
After verdict and before sentencing, counsel for both defendants joined in oral motions for new trial and arrest of judgment. No objection was made by the State. (See Ill. Rev. Stat. 1977, ch. 38, par. 116-1.) The trial court denied these oral motions. The State urges that failure of a defendant to raise issues in a written motion for new trial constitutes a waiver so that these issues cannot be urged as a ground for reversal on review. People v. Precup (1978), 73 Ill.2d 7, 16, 382 N.E.2d 227, citing People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.
1 In response defendant Mumford contends that the waiver rule should not be applied because the State did not object to the oral motions. We agree with this contention. Therefore we will not, in this opinion, depend upon the doctrine of waiver but we will consider each and all of the issues raised upon their merits.
On the issue of the guilt of Mumford based upon accountability, the statute defines a person guilty of criminal accountability (Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c)) as one who:
"Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, * * * solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense."
No point is raised by defendant Rankins as to the sufficiency of the evidence to prove him guilty of murder beyond reasonable doubt. Defendant Mumford urges that guilt of accountability presents a factual question. (People v. Hubbard (1973), 55 Ill.2d 142, 302 N.E.2d 609.) This contention is well founded as an abstract matter but not in relation to the case at bar. It is correct that mere presence or negative acquiescence is not sufficient to prove accountability. However, presence at the scene of the crime is one among other circumstances which may be considered in determining the weight of the ...