APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendants Larry Hamilton and Willie Robinson were found guilty of murder, attempt murder and attempt aggravated kidnapping. Hamilton was sentenced to terms of 1250 to 2500 years for the murder conviction, 75 to 150 years for attempt murder and 5 to 15 years for the attempt aggravated kidnapping. Robinson was sentenced to terms of 500 to 1000 years, 150 to 300 years and 6 2/3 to 20 years respectively for the crimes. The sentences were ordered to run concurrently.
Both defendants appeal. Hamilton contends (1) the jury was improperly selected in that it was a conviction-prone Witherspoon jury; (2) his convictions for attempt murder and attempt aggravated kidnapping should be reversed because he was not proved accountable beyond a reasonable doubt for Robinson's actions; and (3) the sentence of 1250 to 2500 years for murder is excessive. Robinson contends (1) he was not proved guilty of murder beyond a reasonable doubt; (2) certain cross-examination and closing arguments by the prosecution were prejudicial; (3) the use of a prior drug conviction for impeachment purposes was improperly allowed by the trial court; (4) the trial court improperly refused to give instructions to the jury on voluntary manslaughter; and (5) the sentences of 500 to 1000 years for murder and 150 to 300 years for attempt murder are excessive and ignore the potential for rehabilitation.
The following testimony was adduced at trial:
On January 19, 1978, at approximately 2:30 a.m., Mark Furman and his wife, Claudia, were driving home on the Calumet Expressway near 146th Street. An accident occurred in which a car driven by Larry Hamilton struck the Furman car from behind. Both cars pulled off to the side of the road. The drivers of both cars got out and inspected the damage to their respective cars.
Hamilton and Furman had a conversation at the rear of the Furman car. Defendant Robinson testified that this conversation was with loud words and hand gesturing, but he did not know what they were saying. Mrs. Furman testified that neither her husband nor the other man, whom she later identified as Hamilton, raised their voices.
Both men then returned to their cars. Hamilton and Robinson got out of their car and walked back toward the Furman car. Hamilton was on the driver's side and Robinson on the passenger's side. Mark Furman joined the two and walked to the back of the car with Hamilton, while Robinson stayed towards the middle of the car. After a short conversation, Furman rejoined his wife in the car.
At this point, Hamilton stopped near the driver's side near the door. Mrs. Furman testified that she saw flashes and heard four or five shots from the driver's side. At the same time, she saw flashes from the passenger's side, hearing two or three shots. Robinson testified he was next to the Furman car when he saw flashes and the passenger window break. He pulled his gun and fired two shots into the car. He said he fired towards where the flashes came from.
Robinson testified he hit a woman in the head, trying to push her back so he could get away. Mrs. Furman stated that immediately after the shooting the man on her side of the car, Robinson, grabbed her and said, "You are coming with us." A short conversation followed. She then heard the man say, "I have to take care of this bitch" and she was beaten unconscious with a hard object.
Hamilton and Robinson then fled the scene and drove to the home of Hamilton's wife. From there they proceeded to burn the car they had been driving and which was involved in the accident.
Marcea Holman was a passenger with Hamilton and Robinson at the time of the incident. She testified that she stayed in the car throughout the incident and that as defendants were leaving the car before the shooting she recognized an automatic pistol in Hamilton's hand. She did not see Robinson with a gun at that time, but she identified a gun at trial as being in Robinson's possession.
She testified that upon leaving the car the defendants said to each other, "Are you thinking the same thing as I am?" When she heard gunshots she slumped down in the car seat. After the shooting she heard a woman scream, "You might as well kill me since you killed my husband." She stated Hamilton and Robinson returned to the car and they went to a house.
During cross-examination, she admitted to originally telling the police that she and the defendants had been at the house all day. On redirect examination, she said she had changed her story because she was afraid of being found to be a participant in the shooting. Robinson testified that Marcea Holman was high on drugs and had been nodding off before the accident and during the shooting.
Ballistics evidence indicated that all of the bullets which entered the victim's body were from the automatic pistol. Testimony from the medical examiner revealed that there were three bullet entrance wounds on the left side of the victim's body and two on the right side. Police investigators found plastic pieces which appeared to come from a pistol grip. A serial number on one of these pieces was identified and matched with the number of a Colt revolver introduced by the State as an exhibit.
The jury found both defendants guilty of murder, attempt murder and attempt aggravated kidnapping. They were found not guilty of attempt armed robbery. After a hearing in aggravation and mitigation, the trial court sentenced both defendants under the law in effect at the time of the offense.
Defendant Hamilton argues that he was denied a trial by a representative and impartial jury because prospective jurors who expressed opposition to the death penalty were excused from duty. He contends that the jury was "death-qualified" and therefore "conviction prone." Hamilton also advanced an equal protection argument in that a legally cognizable group was systematically excluded from jury duty. Hernandez v. Texas (1954), 347 U.S. 475, 98 L.Ed. 886, 74 S.Ct. 667.
Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, is cited by Hamilton as authority for his position that the jury was "death-qualified." Witherspoon held that a death sentence could not be constitutionally carried out if the jury that imposed it was selected by excluding for cause those prospective jurors who stated general objections to the death penalty or expressed conscientious or religious scruples against its imposition. (391 U.S. 510, 522, 20 L.Ed.2d 776, 784-85, 88 S.Ct. 1770, 1777.) This holding is limited to those circumstances in which the death penalty is actually imposed by the jury. Bumper v. North Carolina (1968), 391 U.S. 543, 20 L.Ed.2d 797, 88 S.Ct. 1788.
The Witherspoon court, however, carefully defined when a State could properly exclude a juror for cause, stating in footnote 21 of its opinion:
"We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case." 391 U.S. 510, 522-23, 20 L.Ed.2d 776, 785 n. 21, 88 S.Ct. 1770, 1777 n. 21.
A reading of the transcript of the voir dire examination shows that all 27 jurors excluded for cause from jury duty were excluded within the guidelines set forth in Witherspoon. Any juror expressing scruples against the imposition of the death penalty was questioned extensively by the able trial judge. In each instance the prospective juror was questioned as to the effect his or her feelings would have on their decisions during a trial. Most of the jurors so questioned asserted that their beliefs would inhibit their judgment of guilt or innocence.
• 1 As defendant Hamilton points out, nine of the excluded jurors indicated that despite their beliefs on capital punishment they would not be prevented from making an impartial decision as to guilt or innocence. However, as were all other excluded jurors, they were asked, "Would you automatically vote against the death penalty regardless of what facts might reveal?" Each juror responded in the affirmative to this query. We hold that there was no violation of Witherspoon and the jurors were properly excused for cause. See Lockett v. Ohio (1978), 438 U.S. 586, 57 ...