APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD RICHMAN, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendants were jointly indicted for murder committed during the course of a felony based on the underlying felony of burglary. After a joint jury trial, defendants were both convicted as charged. Defendant Nailer Jeffrey was sentenced to a term of 100 to 200 years' imprisonment. Defendant Gary Michael Brown was sentenced to 30 to 75 years' imprisonment. On appeal the defendants contend the evidence of their guilt was insufficient, the indictment was fatally defective, and their retained trial counsel was subject to a disabling conflict of interest. Also, Brown alone urges a fatal defect in the instructions to the jury. We affirm.
The bulk of the State's evidence in this cause consisted of the testimony of three alleged accomplices, Don Childers, Willie Jeffrey, and David Beaver. Willie Jeffrey is Don Childers' stepson and defendant Nailer Jeffrey's grandnephew. He lived at various times with Don Childers, Nailer Jeffrey and David Beaver. Beaver is defendant Nailer Jeffrey's stepson. Defendant Gary Brown was employed by defendant Nailer Jeffrey. Defendants maintain that the accomplices' testimony was so improbable and contradictory that it is incumbent upon this court to reverse defendants' convictions. This contention requires that the evidence be summarized at length.
The State's view of the evidence was that Don Childers, Willie Jeffrey, David Beaver, Nailer Jeffrey, and Gary Brown gathered at Nailer's trailer on the afternoon of Sunday, January 26, 1975. David and Willie, both 15 at the time, and the three men left in Don's car and spent the afternoon driving around and drinking. Sometime after 6 p.m., they stopped at Mrs. Cary Reischauer's home. All five had worked at Mrs. Reischauer's house topping trees during the previous month. The men instructed David Beaver and Willie Jeffrey to gain entrance to the house by feigning an automobile breakdown and requesting the use of her telephone. Mrs. Reischauer took the number Willie Jeffrey gave and began to call. Willie Jeffrey and David Beaver walked in, grabbed her and let Gary Brown in the back door. Willie Jeffrey and Gary Brown tied her up after disarming her of a small tear gas gun. Then, while Gary Brown gagged her, the boys rifled drawers. Taking about $30 and some change, the gas gun, and some jewelry, the three left through the back door and rejoined Nailer Jeffrey and Don Childers, who were waiting in Don Childers' car. They divided the money on the way back and threw the jewelry out of the car before reaching Nailer's trailer. The next day they learned that Mrs. Reischauer had died of suffocation. That night Gary Brown threw the gas gun into a strip pit west of Marion. It was not recovered. Shortly thereafter the two boys were arrested on a Williamson County charge of battery against an elderly woman. Believing that the Williamson County offense was similar to the instant offense, a Carbondale police officer questioned both boys, both of whom admitted their participation in the Reischauer offense but did not name any other perpetrators. David Beaver served three years with the Department of Corrections for his part in the offense at bar and was on parole at the time of the instant trial. It appears from the comments of the State's Attorney that David Beaver was treated as a juvenile with respect to this offense and that Willie Jeffrey was not so fortunate. Willie Jeffrey had been sentenced to five to 15 and three to nine years' imprisonment for the Reischauer offense, and was in the custody of the Department of Corrections at the time of the instant trial. During subsequent investigations David Beaver and Willie Jeffrey gave statements to police implicating Nailer Jeffrey, Gary Brown, and Don Childers. Don Childers pleaded guilty to involuntary manslaughter in the Reischauer case and was sentenced to five years' imprisonment prior to the instant trial at which he testified for the State.
All three accomplice witnesses were to some extent impeached at trial. Also, each accomplice's testimony contradicted the others' to some extent. The most flagrant example was David Beaver's testimony that both Don Childers and Nailer Jeffrey entered the Reischauer home, which was in direct contradiction to testimony by Willie Jeffrey and Don Childers. Other contradictions and inconsistencies were as follows. Don Childers testified on direct examination that he visited Nailer Jeffrey at the Reischauer house while Nailer was there trimming trees. Later on direct examination, he asserted that Nailer pointed out the Reischauer house on the night of the offense and that he had never visited during the tree-trimming job. On direct examination, Don Childers testified that Gary Brown and Nailer Jeffrey had threatened to throw gasoline on his children and burn them. On cross-examination, Don Childers denied that such threats had been made and admitted that Gary Brown had taken the children fishing and hunting subsequent to the instant offense.
David Beaver testified that Gary Brown and Nailer Jeffrey tied Mrs. Reischauer. However, David Beaver admitted on cross-examination that in his statement to police two months after the offense he related that he and Willie Jeffrey had tied the victim. It was Don Childers who stated that Gary Brown threw the gas gun into a strip pit. Willie Jeffrey, however, testified that Brown threw the gas gun in the Big Muddy River. David Beaver testified that he (David) threw the gun "[o]ut in the country." David Beaver did not recall any jewelry being taken.
The witnesses did not agree as to how they learned that Mrs. Reischauer had died. According to David Beaver, he heard it the following evening on television. According to Willie Jeffrey he heard it the next day on the radio in Don Childers' truck in the presence of Don Childers and David Beaver. According to Don Childers, Gary Brown and Nailer Jeffrey showed him a newspaper indicating that the victim had died.
David Beaver testified on direct examination that no one wore gloves during the offense. David Beaver admitted that in one statement to police he said that Gary Brown wore gloves and that in another statement he had maintained that no one wore gloves.
The foregoing list of inconsistences is not exhaustive, and an exhaustive list would serve no useful purpose here. Defendants point out that the accomplice testimony is further weakened by the fact that three years elapsed before David and Willie implicated the others. Gary points to his and his wife's testimony that he spent the day, with the exception of a "couple" of hours, in her company. Defendants maintain that each of the State's witnesses had a motive to falsify his testimony. David Beaver testified that an officer had threatened to return him to custody if he did not testify. Willie Jeffrey stated that he changed his story as to who was involved because "they wasn't present" when he gave the statement and because no one had come to visit him in prison. Don Childers had pleaded guilty and received a five-year sentence. Defendants urge that Don Childers could not have bargained for so favorable a deal if he had not been willing to implicate persons not yet under prosecution.
On the other hand, several matters of record indicate that the foregoing discrepancies were attributable to something less than deliberate fabrication. In particular, the 49-month gap between the offense and the trial could serve to explain discrepancies as to many of the peripheral details. The accomplice witnesses' testimony, particularly Don Childers', indicated that all of the perpetrators were drinking, and that all may have been intoxicated at the time of the offense. Willie Jeffrey testified that Don Childers had threatened to kill him if he revealed Don Childers' part in the offense, and that Don Childers had stabbed him with a knife upon learning that Willie Jeffrey had discussed the matter with Nailer Jeffrey. David Beaver related a death threat by Nailer Jeffrey. Don Childers testified that after the boys were arrested, the men involved told them they would be treated with leniency due to their ages and that the men would be treated much more severely if their involvement were known.
Another factor to be considered was the relationship of the boys to Nailer, whom they implicated. In view of that relationship, stepson David and grandnephew Willie had good reason not to implicate him falsely. Further, that relationship was such that David and Willie might well have continued to deny Nailer's involvement for fear of reprisals. Both stated that they feared Nailer; thus, fear may have accounted for their initial reluctance to implicate him.
The testimony of Don Childers' wife Bonnie was corroborative of the accomplice testimony, though defendants challenge her credibility. She testified that the five alleged participants left Nailer's trailer together the night of the offense at about dusk and returned after 1 a.m. Two days later, Nailer and Gary came to the Childers and told Don that Mrs. Reischauer had died. Later, after Willie was charged, Bonnie asked Gary whether Willie had killed her. Gary admitted in the presence of Tammy Cooper, Bonnie's daughter, that he (Gary) had killed her. Tammy, testifying for the State, essentially corroborated her mother's account of Gary's admission. However, Bonnie admitted her dislike for Gary. Further, there was testimony by Bonnie's 21-year-old son, Lester, that Bonnie told him a Detective Wiseman had offered her money to testify against Gary and Nailer. Wiseman testified in rebuttal that he had indeed given her $550, which she had previously given to him for deposit in a bank. According to Wiseman, Bonnie had stated that she received that money from two detectives to be used for relocation for her own safety. He denied that the money was given to ensure her testimony.
It is peculiarly the province of the jury to weigh the evidence, judge the credibility of the witnesses, and determine the facts. A reviewing court will not set aside a jury's verdict of guilty unless the evidence is so unreasonable, improbable, or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. (People v. Sumner (1969), 43 Ill.2d 228, 252 N.E.2d 534.) The duty of this court is to review the evidence carefully, and, if it is not sufficient to remove all reasonable doubt of defendant's guilt, to reverse the conviction. (People v. Hister (1975), 60 Ill.2d 567, 328 N.E.2d 531.) It is well settled that the findings of the trier of fact, including an appraisal of the credibility of witnesses, are entitled to great weight. People v. Williams (1976), 65 Ill.2d 258, 357 N.E.2d 525.
The described inconsistencies notwithstanding, we are of the view that the verdict should not be disturbed. The deficiencies urged by defendants on appeal were, for the most part, vigorously argued to the jury, which had an opportunity far better than that of this court to determine which witnesses were credible. In view of the testimony, including Gary Brown's alibi testimony, it was apparent that the jury could not believe all of the witnesses who testified. Yet there was ample basis for the jury to conclude that Brown accompanied the boys inside the Reischauer house while Nailer Jeffrey waited outside with Don Childers and that they were fully implicated in the crime. Many of the peripheral matters on which the accomplice witnesses were impeached or contradicted are understandable in view of the length of time between the offense and the instant trial. We do not view their testimony as so improbable or unworthy of belief as to vitiate the verdict.
We turn to defendant Gary Brown's contention that the State's evidence, if believed, proved him guilty of involuntary manslaughter and not murder. Brown notes in support of that argument that (1) Don Childers, David Beaver, and Willie Jeffrey were permitted to plead guilty to involuntary manslaughter, and (2) Brown's conduct was at most reckless and did not evince intent to kill or injure Mrs. Reischauer. The State replies that (1) the issue is waived because defendants did not tender an involuntary manslaughter instruction and (2) a conviction for felony murder is possible even where, as here, the death is unintended. Brown urges in his reply brief that he does not cite error in the instant jury instructions but rather "submits that this Court should exercise its power and reduce the murder conviction to that of involuntary manslaughter."
• 1 Since defendant does not seek review of the jury instructions, we do not consider the question of their propriety. Even so, no cause appears to reduce the convictions to involuntary manslaughter. A defendant may be convicted of "felony murder" even though he had no intent to and did not personally kill the victim. (People v. Miner (1977), 46 Ill. App.3d 273, 360 N.E.2d 1141.) The requisite intent for that offense is the defendant's intent to commit the underlying felony, in this case burglary. (People v. Miner.) Were the State's witnesses to be believed, that intent was amply proved. Distinguishable is defendant's citation of People v. Guthrie (1970), 123 Ill. App.2d 407, 258 N.E.2d 802. In Guthrie the issue was whether the jury should have been given involuntary manslaughter instructions, not whether the State proved only involuntary manslaughter and not murder.
We find no significance in the fact that certain co-defendants were permitted to plead guilty to the offense of involuntary manslaughter. The State's decision to "settle" for a guilty plea to that lesser charge could have been, and here presumably was, influenced by legitimate factors other than the prosecutor's opinion of what the "correct" charge should be. See Corbitt v. New Jersey (1978), 439 U.S. 212, 222 n. 12, 58 L.Ed.2d 466, 476 n. 12, 99 S.Ct. 492, 499 n. 12.
We turn to defendants' contentions that the indictment was fatally defective and requires reversal. The indictment is captioned: "THE PEOPLE OF THE STATE OF ILLINOIS vs. NAILER JEFFERY [sic], GARY MICHAEL BROWN, and DONALD RAY CHILDERS, Defendants." Thereafter, under the heading, "BILL OF INDICTMENT," it reads as follows:
"The Grand Jury charges: That on January 26, 1975, in Jackson County, [left blank] committed the offense of MURDER in that they, without lawful justification, killed Cary Lee Reischauer, a female person, age 77, by performing acts causing the death of Cary Lee Reischauer while committing the forcible felony of Burglary in violation of Chapter 38, Section 19-1, Illinois Revised Statute, 1975, as amended, in violation of Paragraph 9-1(a)3, Chapter 38, Illinois Revised Statutes, 1975, as amended."
Defendant Jeffrey's attack is twofold: (1) The body of the indictment did not name defendants or anyone else as the persons charged, and (2) the indictment did not set forth the elements of the underlying felony of burglary. ...