APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. SKLODOWSKI, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE LORENZ delivered the opinion of the court:
Following a jury trial, defendant was convicted of the murder of Milton Daniels and the attempt murder and aggravated battery of Angela Lusk. He was sentenced to three concurrent terms of imprisonment of not less than 50 nor more than 100 years. Defendant appeals, contending that: (1) he was denied a fair trial when the jury was improperly instructed as to the intent requirement for the offense of attempt murder; (2) the prosecutor's closing arguments were prejudicial and deprived him of due process of law; and (3) the trial court abused its discretion in imposing a sentence not considerate of restoring him to useful citizenship.
The pertinent evidence adduced at trial can be summarized as follows:
In April of 1976, Angela Lusk lived in an apartment on the second floor of a high-rise building in Chicago with her fiance, Milton Daniels, and one Leroy Damon. On April 25, 1976, she had a conversation with Damon, who was using narcotics, about the theft of her fur stole. He told her that he was getting narcotics from James Everette, who lived on the fifth floor of the building. She later ordered Damon to leave her apartment. That night, Lusk and Daniels went upstairs to Everette's apartment, but he was not home. They left a message for him to come down to their apartment when he returned.
At about midnight, Everette came down to Lusk's apartment. Everette told Lusk, who was alone, that Damon had given him her fur stole, and that it was in the possession of one of his friends. He then went into her bedroom, placed his gun on the dresser and took all of his clothing off. He told her that he would return her fur if she had sex with him, and when she refused, he dressed and left the apartment. When Daniels returned, Lusk told him what had transpired. Daniels later met with Everette to discuss the whereabouts of the fur.
The following morning, Lusk and Daniels went up to Everette's apartment and told him not to worry about the fur stole, and that she "was going to let the police handle it." They then returned to her apartment and called the police. Meanwhile, Daniels placed a gun in the back of his pants. Minutes later, Daniels answered a knock at the door. He let Everette and defendant into the apartment. Everette immediately pulled out a gun. Defendant also had a gun drawn and pointed it at Lusk. Lusk had never seen defendant before, and his name was never mentioned in connection with the disappearance of her fur stole.
Everette said that he was "tired of being hassled." Lusk told him that his actions were "not necessary," and that she had already called the police. However, defendant told them to "shut up and get on the floor." Everette approached Lusk and Daniels, who were kneeling on the floor. While defendant kept his gun trained on them, Everette struck Daniels with a pair of handcuffs that he was carrying, and also slapped Lusk with the back of his hand. Then, Everette handcuffed Daniels' hands behind his back. Grabbing him by the arm, Everette led Daniels into the bathroom. As Everette stood outside the bathroom door, Lusk suddenly stood up and said, "Lord, have mercy." Defendant, who had previously told her not to move, shot her twice in the legs. Lusk fell on her side behind a chair that faced the couch. While on the ground, she was able to see the hallway where Everette stood. Everette, who was grinning, stated, "this nigger got a gun," and then fired his gun about five times inside the bathroom. Daniels screamed out Lusk's name a few times, but after the shots, he said nothing.
Lusk, who remained on the floor, played dead. She opened her eyes once and noticed defendant, who was standing near the door to the apartment. He opened the door, looked outside, returned and stated "we're not going to be able to make it out of here." Everette replied, "shoot that bitch in the head." Lusk then felt a gun on the skin behind her ear. Somebody shot her in the head and she felt numb and "saw red." A short time later, the police appeared at the scene.
Officer Edward Bluett of the Chicago Police Department arrived at Lusk's apartment between 10:30 and 11:00 a.m. on the day of the incident to take a theft report. Bluett took the stairs to the second floor apartment. While in the stairwell, he heard three or four loud banging noises in succession, but did not know what those noises were. When he arrived at Lusk's apartment and knocked on the door, someone inside yelled, "help, please, help, please." With revolver drawn, Bluett entered and saw Lusk and Daniels on the living room floor bleeding. Defendant stood over Daniels and was wiping his hands on a towel. Bluett ordered defendant to drop the towel, raise his hands and come out into the hallway. One of the residents of the building assisted the police officer in handcuffing defendant. With his foot in the apartment door, Bluett radioed for assistance. He then saw Everette come out of the bedroom area of the apartment wearing a bathrobe. When Everette saw Bluett, he attempted to close the apartment door. Bluett ordered Everette to lie down on the floor, but the latter ignored him, retrieved two pairs of handcuffs from the front room floor and walked back into the bedroom area.
Soon, two other police officers arrived. Bluett and one of the officers found Everette in the bedroom holding the two pairs of handcuffs. Everette, who was bleeding from a gunshot wound to the leg, was placed under arrest, handcuffed to defendant and brought to the police station.
The officers found Lusk in the living room of the apartment with her head positioned behind a chair and her feet at the center of a table, while Daniel's head rested near a television, with his feet towards a chair. Lusk was speaking incoherently. A knife was found on the floor near her head. Daniels was also alive and mumbling that he could not breathe. A .38-caliber Smith and Wesson revolver was found beneath his head. Expended .25-caliber shell casings were also recovered from the living room floor and from the top of a coffee table.
The officers searched the apartment for a gun to match the expended cartridges. They only found a .38-caliber five-shot revolver on a vanity across from the bathroom. Blood was splattered all over the bathroom toilet, sink, bathtub and floor, and there was another expended .25-caliber in the sink. One of the officers noticed two broken window panes in the bathroom, and later investigated the gangway under the window on the theory that a weapon may have been thrown through it to the ground below.
Later that day, Lusk was examined by Dr. Javid Hekmatpanah, a neurosurgeon. According to his testimony, the victim had paralysis of the arms and of the legs, which was caused by a bullet which had entered the left side of her neck, passed through her spinal cord, and lodged underneath the skin on the right side of the neck. Lusk also had six bullet wounds in her thighs; four on the right and two on the left. These wounds were "through and through," and the bullets exited her body.
Daniels was examined by Dr. Yuksel Konacki an assistant Cook County Medical Examiner. In his opinion, Daniels' death was caused by two bullet wounds, one to his right shoulder and one to the right side of his chest.
It was stipulated between the parties that Everette's bond was forfeited for his failure to appear in court, and a warrant was issued for his arrest.
Four character witnesses then testified on defendant's behalf as to his good reputation for being a peaceful, law abiding and truthful person.
Defendant, John Turk, testified on his own behalf that on April 26, 1976, he had been unemployed for two weeks and went to a construction site at 24th and Pulaski in Chicago at about 7 or 8 a.m. to search for work. Since he was not hired, he caught a bus to a White Castle at 79th and Pulaski, bought some hamburgers and a newspaper, and then took another bus to 71st and Jeffrey. Defendant, who had performed services for Everette in the past, proceeded to Everette's apartment in order to put some locks on the door and bathroom of his apartment. He had known Everette since November of 1975 and was aware that he was a drug dealer. Defendant arrived at Everette's apartment at about 9 a.m., but could not immediately start the work since it was "too early to be banging on any doors." He read his newspaper, ate his hamburgers and slept for about an hour. Defendant was then awakened by a knock at the door. Everette answered the door and went into the hallway, closing the door behind him. Defendant did not hear or recognize the voices of the people to whom Everette was speaking.
About 10 minutes after Everette returned, he stated to defendant: "John, I have a beef with some people downstairs, I want you to go downstairs with me." They took the elevator to Lusk's apartment. Defendant had no knowledge of any stolen fur and did not know Lusk, Daniels or Damon. Everette knocked on the door and Daniels allowed them into the apartment. Then, Everette pulled out a gun and ordered Daniels and Lusk to get on the floor. This was the first time defendant saw a gun in Everette's possession. Defendant had no gun that morning and said nothing to Lusk or Daniels. He merely remained near the apartment door.
Everette told Lusk that he did not take her fur. She replied, "I didn't say you took it," and was then slapped by Everette. Daniels got up from the floor and ran toward the bathroom. Everette chased Daniels. At this point, defendant ran down the hallway and heard shooting. After he reached the end of the hallway, about 15 or 20 yards away, he stopped, listened to the shots, and returned to the apartment. Entering, he saw Everette in the living room between the bathroom and the bedroom striking Daniels about the head with two sharp objects that he held in each hand. Shortly thereafter, the police arrived. Defendant denied shooting Lusk or Daniels, and stated that Everette did not order him to shoot ...