APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. SKLODOWSKI, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendants, Danny Murphy and Kenneth Bell, were charged with armed robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 18-2.) Defendants were tried simultaneously, Bell by a jury and Murphy by the court. Both defendants were found guilty. Bell was sentenced to a term of 9 years, and Murphy was sentenced to a term of 4 to 6 years. On appeal, defendants contend that the court erred in denying Bell's motion for severance. We affirm as to Murphy and reverse and remand as to Bell.
Prior to trial, Bell's motion for severance was denied after an agreement was had that any reference to Bell would be excised from the statement Murphy had given to the police. At the start of trial, Bell's attorney made an oral motion that if Murphy elected to testify, that he do so outside the presence of the jury. After the State objected to this motion, the court reserved ruling until Murphy elected to testify.
The following pertinent testimony was adduced at trial. On May 25, 1977, at approximately 9:45 p.m., Mae Maxwell was at Perry's Chicken Shack at 1118 West 79th Street. Upon leaving the restaurant, as she walked to her car, two men approached and demanded to talk with her. They then proceeded to rob her. Ms. Maxwell identified the two defendants in court as the two men who robbed her at gunpoint. She testified that Bell carried a gun in a bag and that she was able to see the handle and a little part of the metal between the handle and the hammer. She gave Bell her purse and the bag of chicken she had just purchased. Bell then asked for her car keys. Ms. Maxwell threw the keys on the ground and began moving away from the car. Murphy hollered, "Don't move or I'll shoot." Bell then pushed Ms. Maxwell against a brick wall and attempted to go into her bra for more money. She told him all her money was in her purse. Murphy again hollered, "Don't move or I'll shoot." Bell then threw Ms. Maxwell's car keys to Murphy, who got in on the driver's side. Bell began pulling Ms. Maxwell by her wrist towards the car. She broke loose and ran into the restaurant. Murphy then instructed Bell to shoot her. Bell started to go after her but stopped and ran back to Ms. Maxwell's car. Defendants then drove away. A restaurant employee called the police. After talking to the police, she was driven home.
Later that evening Officer Conrad arrested Murphy after observing him drive through a red light, nearly strike a parked car, and then drive the wrong way down a one-way street. Murphy was driving Ms. Maxwell's blue Malibu. The following morning Officer Conrad called Ms. Maxwell at home. During the conversation she gave Officer Conrad a description of her car and of defendant Murphy. She then went to the police station where she identified her car. She noticed that chicken bones were all over the back seat, that the driver's seat was torn and that the radio was missing. She then viewed a lineup and identified Murphy as one of her assailants.
On June 11, 1977, Ms. Maxwell was again called to the police station to view a lineup. At that time she identified Bell as the other man who robbed her.
Bell testified that at the time of the robbery he was at home with his father, brother and grandmother. His brother and grandmother corroborated this testimony, stating that Bell had spent the evening of May 25, 1977, at home playing cards and watching television until he went to sleep at 11:30 p.m. Defendant Bell also testified he was a friend of Murphy.
Prior to Murphy's testimony, Bell's attorney requested that Murphy testify outside the jury's presence as Murphy's testimony would implicate Bell, thereby contradicting his alibi. This motion was denied. Murphy then testified that at approximately 9:30 p.m. on May 25, 1977, he met Bell near Perry's Chicken Shack, that he saw Bell approach and then speak to Ms. Maxwell, but that he did not see him take anything from her. Murphy further stated that Bell gave him keys to the blue Malibu and that the two of them got into the car and drove off. At this point Bell's attorney asked that a mistrial be declared because Bell's and Murphy's defenses were clearly antagonistic and prejudicial to Bell. This motion was denied.
Thereafter, the jury found Bell guilty of armed robbery. In a separate finding, the court found Murphy guilty of the same charge. After a hearing in aggravation and mitigation, Bell was sentenced under the code in effect at sentencing to a term of 9 years, and Murphy was sentenced under the code in effect on May 25, 1977, to a term of 4 to 6 years. Defendants appeal.
Defendants contend that their convictions should be reversed since the trial court erred in denying Bell's motion for severance where the defenses presented were antagonistic and prejudicial. The State argues that the court properly refused to sever defendants' trial since no true conflict existed between their defenses.
• 1-3 The general rule is that persons jointly indicted should be jointly tried and separate trials are only required when the defenses are so antagonistic that a fair trial can be achieved only through severance. (People v. Barbaro (1946), 395 Ill. 264, 69 N.E.2d 692; People v. Dorsey (1980), 88 Ill. App.3d 712, 410 N.E.2d 1132; People v. Miner (1977), 46 Ill. App.3d 273, 360 N.E.2d 1141; People v. Davis (1976), 43 Ill. App.3d 603, 357 N.E.2d 96.) However, it is incumbent upon the defendant moving for a separate trial to demonstrate prior to trial how he would be prejudiced by a joint trial. (People v. Stevenson (1980), 90 Ill. App.3d 903, 413 N.E.2d 1339; People v. Miner.) The decision to grant severance rests within the sound discretion of the trial court. (People v. Rogers (1979), 79 Ill. App.3d 745, 398 N.E.2d 1058; People v. Clark (1979), 71 Ill. App.3d 381, 389 N.E.2d 911.) However, this discretion should not be exercised arbitrarily, capriciously, or in such a way as to work an injustice. (People v. Barbaro.) The mere apprehension that defenses may prove antagonistic without a showing that such apprehensions are well founded is an insufficient ground for severance. (People v. Moore (1978), 65 Ill. App.3d 712, 382 N.E.2d 810; People v. Davis (1976), 43 Ill. App.3d 603, 357 N.E.2d 96.) Nevertheless, the court has a continuing duty at all stages of trial to grant severance if prejudice appears. (People v. Lee (1980), 86 Ill. App.3d 922, 408 N.E.2d 335; People v. Clark.) Antagonistic defenses have been confined to those instances where one or more co-defendants testify implicating the other. (People v. Jones (1980), 81 Ill. App.3d 724, 401 N.E.2d 1325; People v. Precup (1977), 50 Ill. App.3d 23, 365 N.E.2d 1007.) The verb "to implicate" has been defined as "to show to have a connection with a crime * * *." (People v. Jones; Webster's New World Dictionary (2d ed. 1974).) Antagonistic is defined as "that which is characterized by or resulting from antagonism; marked by or arising from opposition, hostility, antipathy or discord." (People v. Davis (1976), 43 Ill. App.3d 603, 610, 357 N.E.2d 96, 102.) In sum, where there is more than one defendant and the defenses are antagonistic, and one defendant accuses the other, making it impossible for defendant requesting severance to have a fair trial, the severance should be granted. People v. Lindsay (1952), 412 Ill. 472, 107 N.E.2d 614; People v. Minnecci (1936), 362 Ill. 541, 200 N.E. 853.
• 4 Although defendants were tried simultaneously, Murphy requested a bench trial and Bell demanded a trial by jury. At trial, Murphy did not object to the jury being present during his testimony. Nor did he raise the issue of severance in his motion for a new trial. Murphy's failure to raise this issue in his written motion for a new trial constitutes a waiver thereof and precludes him from raising the issue on appeal. People v. Pickett ...