APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN J. COVEY, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 11, 1980.
Defendant, William Gulliford, was convicted, following a jury trial in Rock Island County on a change of venue, of felony murder and armed robbery. He was sentenced to a term of imprisonment of 35 to 70 years for felony murder and 10 to 20 years for armed robbery with both sentences to run concurrently.
Defendant was initially charged by indictment with two counts of murder and one count of armed robbery. After guilty verdicts were returned on all counts of the indictment the trial court entered judgment conviction only on the counts charging defendant with felony murder and armed robbery.
The State's evidence tended to establish that on July 23, 1977, Dr. Dominic Volturno was struck on the head with a metal pipe by Michael Robinson and robbed. More particularly, the evidence showed that Dr. and Mrs. Volturno drove into the alley behind their home at approximately 10 p.m. on July 23, 1977. At that point, Mrs. Volturno observed a car behind them in the alley. While Dr. Volturno prepared to put the car in the garage, Mrs. Volturno went to the back door of their home. Her daughter, Faith Volturno, let her in. Shortly after entering through the back door to her home, Mrs. Volturno heard a noise that sounded like a "thud." She went outside on the back porch and observed a man with an object in his hands leaning over her husband who was lying at the bottom of the steps. The suspect went through Dr. Volturno's pockets.
Faith Volturno also heard a noise, shortly after her mother returned home. She indicated that the object in the suspect's hands was a pipe.
Several hours later the defendant, one Michael Robinson and a James Hines were stopped and arrested. At the time of the stop, Robinson and Hines were in the front seat of Robinson's car. The defendant was in the back seat.
A chrome-plated pipe with blood on it was found on the passenger side of the front seat. The blood on the pipe was later typed as Group B. Dr. Volturno was also typed as Group B. Expert evidence opined that Robinson's fingerprints were on the pipe.
Other evidence established that the defendant, after receiving his Miranda rights, signed a written statement, several hours after his arrest. This statement was admitted into evidence. According to this statement, on the night in question, the defendant, Hines and Robinson were riding in Robinson's car "looking for someone to rob." Hines, who was driving Robinson's car, pulled into an alley and observed a vehicle. Then Hines backed out of the alley and, on Robinson's order, parked on the street. All three exited the vehicle and went through another alley in order to surprise a victim. Robinson was carrying a silver pipe. Hines and the defendant had no weapon. The defendant stood approximately 20 to 30 feet away from Hines and Robinson. He heard a couple of "whacks" and then some footsteps. All three men ran to the car and left.
By stipulation, it was established that personal identification cards and credit cards belonging to Dr. Volturno were found on July 24, 1977, at various street intersections on the south side of Peoria.
Medical testimony indicated that Dr. Volturno was rendered unconscious by a blow to the head. He was found lying face down on the sidewalk near the back stairs. There was blood in his nose and mouth, preventing him from breathing.
Dr. Volturno was taken to St. Francis Hospital in the early morning hours of July 24, 1977. He was first examined by Dr. McLean and found to be comatose. The victim suffered a skull fracture and a hematoma developed on the left side of his brain with swelling. A neurosurgeon was consulted and surgery was suggested. A craniotomy was performed, and the blood clot was removed. The surgeon testified that during the surgery he observed that the temporal parietal lobe regions of the brain were bruised. He further testified that the result of this injury would be that Volturno would lose his language function and would not be able to interpret what he saw or heard and probably would not be able to utter verbal sounds. The victim remained comatose and though his condition was critical, the surgery was termed a technical success. However, several days later Volturno developed congestion in his lungs. Tests subsequent to surgery indicated that the swelling of the brain was worse, and that the brain was functioning even less than before surgery. On the morning of his death the victim's lungs were again found to be congested. He died on July 30, 1977.
The hospital pathologist, Dr. Kalyanaraman, indicated that the immediate cause of death was an extensive type of pneumonia which had existed in the lungs anywhere from 2 to 4 days. The pathologist testified that the pneumonia was probably caused by the victim's comatose state. The treating physician and neurosurgeon, Dr. Henderson, testified that no pulmonary expert had been called in and that he had never entertained with certainty that his patient had pneumonia because "from a practical standpoint it had no significance." In his opinion the patient was a "lost cause".
Defendant has raised four issues on appeal: (1) whether the State failed to prove beyond a reasonable doubt that the legal cause of death was not the intervening acts of the treating physician; (2) whether the defendant was denied his right to a fair trial because the jury instruction on murder failed to fully and fairly inform the jury of the law applicable to the defense theory that the legal cause of death was an intervening cause; (3) whether for purposes of double jeopardy, felony murder and the underlying felony are the same offense and defendant's judgment of conviction and sentence for armed robbery ...