APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of armed robbery, acquitted of attempt murder, and sentenced to 11 years. On appeal, he contends that (1) the State failed to prove beyond a reasonable doubt that his conduct was not compelled; (2) prejudicial remarks of the prosecutor denied him a fair trial; and (3) the sentence was excessive.
Hilario Lara testified through an interpreter that two black men approached him as he waited for a bus; that the shorter man grabbed him by the neck, covered part of his face, and put a pistol to his head; that the taller man, whom he identified as defendant, was wearing red pants; that one of the men demanded money; that he heard no talking before money was demanded, although the men said things he did not understand; that he told the men he had no money; that defendant said, "You have a bag" and took it; that the bag contained clothing and a towel; that when a police officer carrying a gun shouted at them, the shorter man fired twice at the officer from behind him (Lara) while defendant stood slightly behind and approximately 2 to 3 feet to his right; that the shorter man and defendant then fled; and that at no time did the shorter man point the gun at defendant.
Victor Reese, a 10-year-old child, testified that he was playing with friends when from approximately 10 feet away he saw two black men robbing a white man; that the shorter man stood behind the victim holding a gun to his head while the taller man, wearing red pants, was in front searching the victim; that he heard no talking and never saw the gun pointed at defendant; that a police officer arrived carrying a gun and said, "Halt. Police"; that the shorter man ordered the officer to drop his gun and, when he refused, the shorter man fired at him; that defendant was standing beside the shorter man at the time; that he (Victor) then ran home, where he saw defendant at the back door holding a brown paper bag; that defendant asked Victor's mother for short pants "due to the heat"; that defendant then entered the apartment, put the bag on a couch, and went into the bedroom of Victor's 3-year-old sister and told her to cover him with clothes; and that defendant was arrested a few minutes later.
Officer McHugh testified that he saw a man wearing red pants, whom he identified as defendant, holding a bag while searching a white man; that this man was in front of and facing the victim, and a shorter black man was behind him; that he left his car and, with his gun drawn, came within five feet of the men and shouted, "Police. Put your hands up"; that the shorter man got behind the victim, ordered McHugh to drop his gun, and fired twice as McHugh ran back to his car; that the gun held by the shorter man was never pointed at defendant; that both assailants fled, with defendant following the shorter man and carrying the bag; and that he and another officer found defendant hiding under a pile of clothes in the apartment of Dorothy Reese, the mother of Victor.
Officer Opiola testified that he heard three gunshots and then observed McHugh in the street, a Latin man on the sidewalk, and two black men running south; that the taller of the two was wearing red pants and carrying a brown bag; that he and McHugh were directed by Mrs. Reese to her house, where they found defendant hiding under a pile of clothes in the bedroom of a 3-year-old girl; and that a bag of clothes was also found on a couch in the front room.
Defendant testified that while he was drinking in a bar, Ollie Williams approached him and said he needed money; that defendant offered him a job; that he and Williams had been members of the Vice Lords street gang in 1965, but he (defendant) was no longer involved with the gang; that Williams said, "[O]nce a Vice Lord, always a Vice Lord" and told him they were going to get some money; that Williams showed him a gun and said he heard that defendant had been shot in 1976 for disobeying gang orders; that he was afraid of Williams because he was a gang chief and because of his prior trouble with the gang; that he had been whipped and struck in the head with a pipe in 1968 or 1969 for refusing to obey gang orders; that in 1976, after the Vice Lords had sent word from prison to punish defendant for disobeying orders, he was shot in the back underneath the right arm; that he went with Williams because he feared he or his family would be harmed; that Williams ordered him to go in front of a man they saw standing on a corner; that Williams told him to search the man and take his bag; that he searched the victim because Williams could not do it and still hold the gun; that he did not attempt to flee, because he feared Williams would shoot him; that when McHugh interrupted the robbery, he (defendant) moved closer to the victim and Williams; that he ran with the bag when he heard the gunshots because he was frightened, and since he was on parole he thought the police would not believe his story; that he entered the Reese home but did not tell the Reese girl to cover him with clothes; and that when he was first questioned about the robbery, he lied about the identity of the other man involved for fear the gang would kill him if he gave Williams' name.
Defendant admitted that he did not tell the police of his fears, of the gang problem, or the version of the robbery that he testified to at trial. He also admitted, but later denied, that after his arrest he told an Assistant State's Attorney he was standing outside the bar talking to a girl before walking over to Williams, whom he saw robbing someone.
The jury was polled on its initial verdict of not guilty of attempt murder and guilty of armed robbery, and when one juror dissented, they were sent back for further deliberation. Thereafter, they returned the guilty verdict on the armed robbery charge.
Defendant presents, as his principal contention, the State's failure to prove beyond a reasonable doubt that his conduct was not compelled. He maintains that he reasonably believed Ollie Williams would shoot him if he did not participate in the armed robbery and that, based on his prior experience in the Vice Lords gang, this threat would be carried out.
• 1 Section 7-11(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7-11(a)) provides:
"A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct."
Compulsion is an affirmative defense (Ill. Rev. Stat. 1979, ch. 38, par. 7-14), SO THAT IF SOME EVIDENCE IS PRESENTED THEREON, the State has the burden of disproving it as well as each element of the crime beyond a reasonable doubt (Ill. Rev. Stat. 1979, ch. 38, par. 3-2). Moreover, as ...