APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Terry J. Ellis was tried by a jury and found guilty on charges of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(1)), robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-1), and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1). The court entered judgment on all three verdicts and sentenced the defendant to imprisonment for 26 years on the charge of murder, to be served concurrently with sentences of 7 years each for the robbery and burglary charges.
In this appeal, defendant contends the trial court erred by (1) refusing to instruct the jury on the charge of involuntry manslaughter; (2) refusing to instruct the jury on withdrawal from accountability; (3) allowing the jury to issue a statement requesting leniency while at the same time denying his request to poll the jury; and (4) sentencing him to an excessive term of 26 years' imprisonment.
On June 4, 1978, defendant, Terry Ellis, was with two acquaintances, James Jackson and Dawn Schreiber. They suggested that defendant go with them to take money from Vito Falcone, the man who lived with Schreiber. They planned to have Schreiber entice Falcone to bed and, once Falcone fell asleep, Jackson and defendant were to take his money. Schreiber went upstairs to Falcone's room but he did not fall asleep as anticipated. Instead, Schreiber urged Falcone to come downstairs to repair the shower in her apartment. When Falcone came downstairs, defendant and Jackson were waiting. They grabbed him, lowered him to the floor, and tied his hands. Falcone was placed on Schreiber's bed; defendant took Falcone's wallet which contained $42. Defendant then went upstairs to search Falcone's room for additional items of value. While defendant was upstairs, Schreiber and Jackson remained with Falcone. They proceeded to cover him with a sheet and mattress. Schreiber hit Falcone on the head with a hammer. The blow did not prove to be fatal, but it did cause serious contusions.
Jackson joined the defendant upstairs and together they loaded items from Falcone's room into Jackson's car. Jackson wanted to drive Falcone's car; defendant, in turn, drove alone in Jackson's car. Approximately 1 hour after defendant arrived at his home, Schreiber and Jackson arrived. It was at that time they told defendant that Schreiber had hit Falcone on the head with a hammer. Defendant expressed concern for Falcone's well-being and told Jackson to call the police in order to save Falcone.
Falcone's sister, Anna Liotta, found him dead the next morning. His body was covered by a sheet and underneath a mattress.
Four days after the death of Falcone, the defendant voluntarily surrendered to police. He was then arrested pursuant to a warrant charging robbery only. Later, a six-count information was filed charging defendant and two others with robbery, burglary, and four counts of murder.
At trial, Falcone's sister testified that she saw her brother three times weekly and that he was in good health. Falcone's next-door neighbor also testified. She said she had seen Falcone on the day of the incident and he appeared to be in good health.
Dr. Lee F. Beamer, assistant medical examiner for Cook County, testified concerning Falcone's state of health and possible cause of death. The doctor said he had performed an autopsy on the decedent in June 1978. The report of that examination was lost. Therefore, the remains of the decedent were disentombed in order that another examination could be performed. The doctor stated he could not pinpoint the exact time of death, but he could determine that Falcone did not die from strangulation or from multiple contusions. He also found that Falcone's death was neither caused by the towel tied over his mouth nor the bindings on his hands or feet. In Dr. Beamer's opinion, death was caused by the narrowing of vessels or hardening of the arteries in the heart. The mechanical and psychological stress of being bound, struck and left under a mattress caused Falcone to die of a heart attack.
Defendant testified regarding the incident. He did not testify about the cause of Falcone's death. He did say that he knew Jackson and Schreiber as being neighbors in his apartment building. Defendant recounted the incident as described above and admitted having taken Falcone's wallet. He did not remember a fight or anyone having struck Falcone. Defendant testified he was greatly concerned for Falcone's life, which is why he asked Jackson to call the police. Finally, defendant concluded that he never intended to kill or injure Falcone, nor did he murder him.
At the close of trial, the court instructed the jury on each of the four alternative murder counts. When defendant presented instructions which included the statutory definitions of "intent" and "knowledge," the court refused to give them to the jury. The court also refused defendant's instructions which explained that the State's murder charges also contained the lesser offense of involuntary manslaughter. Over defendant's objections, the court agreed to instruct the jury on the law of accountability (Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c)(3)) but refused defendant's jury instruction regarding withdrawal.
After receiving instructions, the jury deliberated. Prior to returning a verdict, the jury asked the court for permission to submit a statement which could be issued in addition to the verdict. The court approved the issuance of the following statement:
"We the jury while finding the defendant Terry Ellis guilty of murder, according to the law and evidence presented, respectfully request the Court, because of his past record, to ...