APPEAL from the Circuit Court of Cook County; the Hon. R.
EUGENE PINCHAM, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant was charged with the murder of Robert Stewart, the attempt murders of Troy Stewart and William Rayburn, the aggravated battery of Troy Stewart and the armed robberies of the deceased and Rayburn. Prior to trial, the State nolle prossed the aggravated battery charge. A jury acquitted defendant of the armed robbery charges. The jury found defendant guilty of murder and of the two attempt murders and the court sentenced him to a term of 200 to 300 years on each charge, the sentences to run concurrently. (A co-defendant, Ricky Bell, was charged with the same crimes, and a jury found him guilty of all charges. The court sentenced Bell, who is not involved in this appeal, to 25 to 40 years for murder, to 20 to 40 years for each attempt murder, and to 15 to 25 years for each armed robbery, the sentences to run concurrently.)
On appeal defendant, through counsel, contends that the trial court erred in not submitting to the jury tendered instructions on manslaughter, aggravated battery and reckless conduct; that certain comments by the prosecutor during closing argument deprived him of a fair trial; and that the sentences imposed are excessive. In addition, defendant has filed a pro se brief arguing that he was not proved guilty beyond a reasonable doubt, and that he was prejudiced by the use of a dual jury. The facts are as follows.
The incident occurred on the evening of March 4, 1977, at the deceased's home in Chicago. Theresa Perry testified that she, deceased, William Rayburn and Troy Stewart, deceased's 15-year-old nephew, were present when defendant, Bell and an unknown man came to the door. After Perry talked to the three men, they left but returned several minutes later. When Rayburn answered the door, defendant was pointing a pistol and the other men had their hands in their pockets as if they had guns. Defendant guided Perry to the second floor where he made deceased stand against the wall and took money from him.
Defendant held deceased and Rayburn at gunpoint while Bell and the other men searched the premises. Defendant then directed deceased and Rayburn to lie on the floor face down. Defendant stated that he was not going to leave any witnesses to tell what happened. When Perry began to cry, defendant warned her that she would be killed first.
Perry further testified that Bell told defendant it was not worth it to kill anyone for what they were getting but defendant repeated that he wanted no one left to call the police. Bell acquiesced and told defendant to get on with it. Perry saw defendant shoot at the deceased. As she fled into the washroom, Perry heard several shots and then two empty clicks. When she emerged from the washroom, Perry found the boy, Troy Stewart, lying in a pool of blood.
Troy Stewart testified that he was awakened by voices and saw defendant waving a pistol as he talked to the deceased. Troy heard defendant say he was not going to leave any witnesses. He heard a shot and saw Rayburn, followed by the deceased, running. The two men jumped through windows in Troy's room. As Troy jumped from the bed and began running, he was shot three times in the back, once in the arm and once in the finger. Troy fell face first on the floor. As he turned on his side, defendant was standing over him with the gun pointed at Troy's head. Troy asked defendant not to shoot, but defendant pulled the trigger twice. The gun did not fire, and defendant departed.
Rayburn's testimony was essentially the same as that of the other State witnesses. When defendant shot at the deceased, Rayburn stood up and ran through a closet and dove through a closed window in Troy's room. As he landed, he heard more shots and ran down the street in a zigzag fashion. Rayburn called the police and was taken to a hospital for treatment of a sprained leg. When Rayburn ran through Troy's room, he heard the deceased running behind him. He saw deceased try to raise the other window, then heard more shots and saw the deceased go through the window.
A police officer testified that the deceased was lying on the ground, unconscious and bleeding from the head and arm. The doctor who performed the autopsy on the deceased testified that the cause of death was head and abdominal injuries as a result of a fall. The doctor also testified that the deceased had incurred a bullet wound in the arm.
Defendant testified that he went to the deceased's home to recover money taken from defendant's sister by the deceased during a drug purchase. Defendant knew Rayburn and the deceased carried guns so he brought along his gun which he placed in his trousers. Defendant was accompanied by Bell and a third man. After waiting several minutes, they were admitted into the home by Rayburn. Guided upstairs, defendant saw the deceased five feet away and holding a gun.
While defendant asked the deceased for his sister's money, Rayburn left to answer the door. Rayburn returned with a gun in one hand and money in the other. As the conversation between defendant and the deceased continued, Perry walked between them and defendant shoved her. Deceased jumped back and Rayburn "moved around." Defendant pushed Rayburn and when Perry shouted, defendant shoved her again. A shot was fired, and defendant believed that the deceased fired it. Defendant "jumped around the corner," started firing and "emptied" his gun. Defendant believed that the deceased intended to kill him. Defendant stated that he did not intend to kill anyone; he did not see the two men go through the windows, and he did not see Troy Stewart.
We first address defense counsel's contention that the trial court erred in refusing to submit certain instructions to the jury. The trial court submitted an instruction on self-defense tendered by defendant, but refused to submit defendant's instruction on voluntary manslaughter. Defendant maintains that this refusal was error.
• 1 In People v. Lockett (1980), 82 Ill.2d 546, our supreme court addressed this precise issue and held that in a murder case where there is evidence in the record to support a self-defense instruction, a voluntary manslaughter instruction must also be given if tendered by defendant. The court reasoned that when presented with a self-defense theory, a jury could believe that defendant acted under a subjective belief that force was necessary, but at the same time reject the reasonableness of defendant's belief. This acceptance by the jury of a portion of defendant's self-defense claim would reduce the crime to voluntary manslaughter. Similarly, in the present case, defendant presented evidence supporting a self-defense theory and an instruction on that theory was given. Under the Lockett holding, the jury should have been instructed on the offense of voluntary manslaughter when defendant submitted the instruction. The murder count must be retried.
We next consider defense counsel's claimed errors regarding the convictions for attempt murder. Defendant maintains that the offenses of aggravated battery and reckless conduct are lesser included offenses of attempt murder, ...