APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
J. CIESLIK, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendants Augustus Lewis, Felton Chase, Danny Lee and Jerome Trosclair were indicted for murder, attempt murder, aggravated battery, armed robbery and burglary. Pretrial severance motions were denied, and defendants were tried jointly by a jury. The jury found defendants Lewis and Chase guilty of three counts of armed robbery and one count of burglary. The jury found defendants Lee and Trosclair guilty of one count of murder, one count of attempt murder, three counts of armed robbery, one count of burglary and one count each of aggravated battery and battery. The trial court sentenced Lewis to three concurrent terms of 15 to 25 years' imprisonment for the armed robberies; Chase to three concurrent terms of 20 to 30 years for the armed robberies; Lee to five concurrent terms: 60 to 120 years for murder, 30 to 60 years for attempt murder and three terms of 20 to 30 years for armed robbery; and Trosclair to five concurrent terms: 40 to 80 years for murder, 25 to 50 years for attempt murder, and three terms of 25 to 30 years for armed robbery. All defendants appeal.
The State's evidence indicated that on January 12, 1976, Michael Watson, Kimberly Rhymes, Dewana Beard and Rhymes' and Beard's children lived in a third-floor apartment at 2117 East 70th Street, in Chicago. That evening the following people were also present: Darryle Sanders, Reginald Bell, Sr., Reginald Bell, Jr., Mary Ann Watson, Lorenzo (Junior) Boyd, Carl, Stanley and Sandra Watson, and William Cox. At about 10:30 p.m., Michael Watson answered a knock on the apartment door. Present outside the door were defendants Chase, Lewis, Trosclair and Lee, and Trosclair's brother Kenneth. Trosclair and Chase told Watson they wanted someone named "Junior" outside or they were coming in. Watson did not admit the visitors and defendants left the building. Michael and Carl Watson left the apartment 20 minutes later and went to a liquor store.
At about 11:30 p.m., Stanley Watson answered another knock on the apartment door. Defendant Trosclair asked for Michael Watson, and Stanley said he was not there. Trosclair grabbed Stanley around the neck and put a gun to his head. Within seconds, all the defendants entered the apartment. Reginald Bell, Sr., Kimberly Rhymes and Lorenzo Boyd ran out the back door. Sandra Watson, William Cox and Reginald Bell, Jr., ran and hid in the pantry. Reginald Bell, Sr., returned to the apartment and led his son out the back door. William Cox also left through the back door. Bell, Sr., then returned to the apartment.
Trosclair dragged Stanley Watson into the kitchen, gathered the people remaining (except Sandra Watson, who remained hidden in the pantry), and ordered them into the living room. There, he made them lie on their backs on the floor. Darryle Sanders, who was intoxicated, was sleeping nearby.
While in the kitchen, Trosclair had given Lee his gun. In the living room, Lee proceeded to take money, wallets, jewelry and articles of clothing from Stanley Watson, Mary Ann Watson and Bell, Sr. Lee tried to awaken Darryle Sanders by kicking him twice, but was not successful.
Trosclair then said, "Kill them all." Dewana Beard pleaded for their lives. Trosclair said, "No, don't shoot Dewana, she is pregnant." Lee then said, "I have to shoot, I have to kill someone." He said he had to kill at least two people. While Lee and Trosclair talked, Chase and Lewis took the stereo set out the front door of the apartment.
Lee first shot Reginald Bell, Sr. He then shot Darryle Sanders. Trosclair was nearby and watched the shootings. Lee and Trosclair then fled from the apartment.
At this point, Michael and Carl Watson returned to the apartment building and found Reginald Bell, Jr., hiding behind a car. They entered the apartment and found Darryle Sanders sitting on the toilet with a bullet hole in his stomach. Bell, Jr., went over to his father, who said, "Buddy, I love you."
Outside in the alley, Kimberly Rhymes had flagged down a squad car driven by Officer Thomas Wortham. Rhymes got in the car and as they drove toward the apartment, she saw three male Negroes running towards the alley and said, "There they go; that's them." The alley was blocked by a four-door black Oldsmobile. Two men were in the car and three others were about to get in. All five men fled from the car and ran into a courtway. Wortham and his partner stopped their squad car in the alley and pursued the five men on foot.
Wortham heard footsteps going up the back porch stairs of the building. Wortham then saw Lewis walk out into the alleyway. Lewis explained that he had come from his apartment on the second floor. Wortham investigated that apartment, discovered that Lewis did not live there, and arrested Lewis. Lewis also gave a false name.
Other officers joined in the search and found defendants Trosclair, Lee and Chase and Kenneth Trosclair crouched behind a garbage can on a third floor landing. They were arrested and various stolen items were recovered from them and from the Oldsmobile. Wortham also recovered a revolver from the curb near the Oldsmobile. Lee's fingerprints were on the revolver.
Reginald Bell, Sr., was pronounced dead of gunshot wounds at the hospital. Darryle Sanders sustained serious abdominal injuries. The five men arrested were placed in a 15-man lineup. Kimberly Rhymes and Mary Ann Watson identified the four defendants. Sandra Watson identified Lee, Trosclair and Chase as the men she saw break in before she hid in the pantry. Stanley Watson identified Lee, Trosclair and Chase as the men he had an opportunity to see.
Lewis testified in his own behalf, and his testimony was adopted by Chase. On January 12, 1976, after 7:30 p.m., Lewis, Trosclair (his half-brother), Chase (his cousin) and Kenneth Trosclair went to 70th and Merrill to pick up Chase's suitcase from his brother Reginald's apartment. Near Reginald's apartment they saw a parked car belonging to a man named Larry. They had got into an argument with Larry earlier that day. They entered a building and knocked on the third floor apartment door. Michael Watson answered the door; a conversation ensued and became heated. The three defendants and Kenneth Trosclair left at the suggestion of Reginald Lewis, who came out of a nearby apartment. They then picked up Lee and someone named Larry and subsequently returned to the vicinity of 70th and Merrill to pick up Chase's suitcase. Larry, Trosclair and Lee got out of the car. Kenneth Trosclair parked the car in an alley behind Reginald's apartment building and Lewis, Chase and Kenneth went to Reginald's apartment. No one answered the door.
As they descended the stairs, they heard two gunshots. Lewis saw Larry running down the street carrying a stereo and defendant Trosclair running close behind. Everyone but Lee got into the car. However, at the sight of flashing blue lights, everyone jumped out of the car and ran. Lewis ran toward his brother's apartment and then returned to his car. There he was arrested by the police and questioned. Lewis testified that he told the officer his correct name and address.
Lee testified in his own behalf and sought to establish a compulsion defense. He testified that he was an epileptic and had been having seizures ever since he had been hit in the head with a pipe and had gotten a bullet in his head. Lee explained that in 1972 defendant Trosclair came over to Lee's house with a gun. When Lee picked up the gun it went off and a bullet lodged in his head. The bullet remained in his head and its entryway is covered by a metal plate. Lee described his epileptic fits as "fallout" — an inability to recall what had happened.
At this point, the trial court instructed the jury to ignore all of Lee's testimony regarding the shooting, being hit by the pipe and his epilepsy, because it was irrelevant and not supported by medical testimony.
Lee further testified that when he was in school he belonged to the Disciples Gang and that Trosclair was the leader. Leaders told the other members what to do. Other questions pertaining to gang activity were objected to and sustained. The jury was instructed to disregard occurrences and relationships Lee had prior to 1974. The court stated that the only admissible evidence of compulsion would be "that that occurred just prior to the time of occurrence, within a reasonable period of time, * * *." Lee made an offer of proof as to earlier events.
Lee then testified that on the evening of January 12, 1976, he planned to go out with a woman, but left with Trosclair because Trosclair told him to and he feared Trosclair. Lee, Chase, Lewis, Trosclair and Kenneth Trosclair got in a car and drove to Reginald Chase's home. They parked in front of Reggie's house and met someone named Larry. Lee, Larry and Trosclair went to a third floor apartment Lee had never visited before. Trosclair knocked on the door, talked for a few minutes and then busted the door in. Trosclair put his gun to the head of the man at the door and told the people inside the apartment to lie on the floor.
Lee further testified that he kept asking Trosclair to leave. Trosclair turned around, called to Lee and shoved the pistol into Lee's stomach. Trosclair told Lee to kill everyone. Lee said no, but Trosclair kept hollering, "Kill everyone." Lee said that he could not shoot the pregnant woman and Trosclair replied, "Don't shoot her then. Shoot them two." Lee had the gun and was near the door and Trosclair was behind him. He said he fired the gun because Trosclair was behind him and he didn't know if Trosclair had another gun. He was afraid of being killed by Trosclair or someone in the house. Lee shot twice, ran and was apprehended by the police. He denied taking any property.
On appeal, defendants assert that the trial court erred: (1) in denying their respective severance motions, renewed severance motions and motions for mistrial; (2) by excluding Lee's testimony concerning his long-standing relationship with Trosclair, thereby depriving him of his right to present a defense of compulsion; (3) in refusing Lee's proffered instructions on compulsion; (4) in belittling Lee and his counsel in front of the jury; (5) in allowing decedent's young son to offer cumulative testimony that would prejudice and inflame the jury; (6) by allowing an officer to testify to a statement Lewis made when the substance of that statement was not provided during pretrial discovery; and (7) in imposing excessive sentences upon Lewis and Chase.
Defendants contend that they should have had severed trials. Trosclair and Lee were the only defendants to make pretrial severance motions. Lee's written motion alleged that his interests and defenses were antagonistic with co-defendants for reasons apparent from Lewis' answer to the State's discovery motion. Lewis' answer, filed on February 28, 1977, indicated that he believed the evidence would show that the crimes charged were committed solely by Lee and Trosclair. Lewis further stated that he may assert the defense of alibi and would rely on the State's inability to prove him guilty beyond a reasonable doubt. Lee further alleged that he had reason to believe that Trosclair's and Chase's defenses would be similar to Lewis' defense. Lee's motion was not supported by affidavit.
All the defendants responded to the State's discovery motions, revealing the following anticipated defenses: Trosclair, Chase and Lee all indicated they would rely on the inability of the State to prove them guilty beyond a reasonable doubt. Chase also stated that he may use an alibi defense. Lee also indicated that he may assert the defense of alibi, insanity, necessity, duress or self-defense. Lee's answer was filed on June 10, 1976; Chase's on September 13, 1977; and Trosclair's on September 29, 1977.
On June 28, 1977, Lee's severance motion was heard and denied by the trial court. At this time, Trosclair had not filed a severance motion and did not join in Lee's motion; indeed, his attorney was not even present for argument on this motion.
Lee's counsel argued essentially the same points contained in his written motion. Additionally, Lewis' counsel, a public defender, made a statement to clarify Lewis' discovery answer. He originally represented Trosclair, Chase and Lewis. However, his investigation revealed evidence that Lee and Trosclair were the perpetrators of the crimes charged. Because of this conflict of interest he was granted leave to withdraw as Trosclair's and Chase's attorney. The trial court denied Lee's motion for severance, finding that antagonistic defenses had not been proved.
On September 29, 1977, Trosclair filed a motion for severance, alleging co-defendants' defenses were antagonistic. He stated that he believed co-defendants made statements and admissions, not attributable to him, which the State would use at trial and that at least one of the co-defendants will or has given the State statements implicating him. These allegations were not supported by affidavit. On December 9, 1976, the State filed an amended answer to discovery indicating that Lee made an oral statement. The answer further indicated that the time, place, date and contents of the statement were set out in police reports tendered to the defense in open court. The record does not contain these reports nor does it indicate that the trial court was apprised of either the reports or Lee's statement during the hearing on Trosclair's severance motion.
Trosclair did not argue this motion until immediately before the jury was sworn on September 29, 1977. The trial court found that the mere possibility that a co-defendant would testify against Trosclair was not a sufficient basis to grant a separate trial.
Generally, defendants jointly indicted should be jointly tried unless fairness to one or more defendants requires a separate trial. (People v. Jones (1976), 40 Ill. App.3d 850, 353 N.E.2d 375; Ill. Rev. Stat. 1975, ch. 38, par. 114-8.) Whether a separate trial should be granted lies in the sound discretion of the trial court and its determination will not be reversed unless there is an abuse of discretion. (People v. Henderson (1976), 39 Ill. App.3d 164, 351 N.E.2d 225.) Of paramount concern is whether their defenses are so antagonistic that a severance is imperative to a fair trial. People v. Yonder (1969), 44 Ill.2d 376, 256 N.E.2d 321, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L.Ed.2d 270, 90 S.Ct. 1094.
A motion for separate trials of jointly indicted defendants must be made before trial. (People v. Precup (1977), 50 Ill. App.3d 23, 365 N.E.2d 1007, aff'd (1978), 73 Ill.2d 7, 382 N.E.2d 227.) Insofar as the motion is based on facts not appearing of record, it should be supported by affidavit. (People v. Miner (1977), 46 Ill. App.3d 273, 360 N.E.2d 1141.) Defendant must demonstrate how he would be prejudiced by the denial of a separate trial (People v. Rhodes (1969), 41 Ill.2d 494, 244 N.E.2d 145) and must disclose specific grounds why the severance should be granted. (People v. Brinn (1965), 32 Ill.2d 232, 204 N.E.2d 724, cert. denied sub nom. Clements v. Illinois (1965), 382 U.S. 827, 15 L.Ed.2d 72, 86 S.Ct. 62.) Mere apprehension of a conflicting situation does not provide the trial court with sufficient grounds for granting a severance motion. (People v. Nickson (1978), 58 Ill. App.3d 470, 374 N.E.2d 804.) Moreover, the fact that separate counsel had been appointed for jointly indicted defendants because of a conflict of interest does not, standing alone, entitle defendants to separate trials. People v. Friedrich (1960), 20 Ill.2d 240, 169 N.E.2d 752; People v. Arnold (1968), 91 Ill. App.2d 282, 233 N.E.2d 764.
The reviewing court will consider only petitions filed by defendants and matters alleged therein, and not subsequent happenings at trial. (People v. Yonder (1969), 44 Ill.2d 376, 256 N.E.2d 321, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L.Ed.2d 270, 90 S.Ct. 1094.) Nonetheless, the trial court has a continuing duty at all stages of trial to grant a severance if prejudice appears. People v. Clark (1979), 71 Ill. App.3d 381, 389 N.E.2d 911; cf. Schaffer v. United States (1960), 362 U.S. 511, 4 L.Ed.2d 921, 80 S.Ct. 945 (application of Federal Rules of Criminal Procedure).
• 1 Applying these principles, we find that Lee's pretrial severance motion was properly denied. Lee asserted that Lewis' defense would be antagonistic. Lewis' discovery answer indicated that he may assert an alibi defense and believed the evidence would implicate Lee and Trosclair. However, Lee's discovery answer indicated that he might use any of the following defenses: alibi, insanity, necessity, duress or self-defense. Only an alibi defense would necessarily be antagonistic. The other affirmative defenses serve to concede the actions yet deny criminal culpability.
Lee relied upon no ground for severance other than antagonistic defenses, did not support his motion by affidavit and presented the mere apprehension of a conflict. (People v. Nickson.) Under these circumstances, the appointment of separate counsel because of a conflict did not entitle Lee to a separate trial. People v. Arnold.
Nor do we believe that Lee was prejudiced at trial. His compulsion defense was not antagonistic with defenses presented by any co-defendant.
• 2 We also find that Trosclair's pretrial severance motion was properly denied. Trosclair asserted that co-defendants made statements that would be used to implicate him at trial. These allegations were not supported by affidavit nor are the alleged statements part of the record. Trosclair's mere apprehensions that co-defendants might implicate him are insufficient to sustain his pretrial severance motion.
• 3 We next turn to the issue of whether the trial court erred by failing to grant a severance for Trosclair at trial. Trosclair's answer to the State's discovery motion indicated he would rely on the inability of the State to prove him guilty beyond a reasonable doubt and that he might testify. During opening statements, his attorney represented that Trosclair would testify and establish his innocence. His counsel also made a continuing motion for severance throughout the trial and made timely motions for a mistrial based on co-defendants' testimony.
Lewis' testimony indicated that Trosclair was let out of the car at the scene of the crimes and that Trosclair fled following "Larry," who was carrying a stereo. Moreover, Lee's compulsion defense ...