APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. SCOTILLO, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendants Phillip Byas and Jesse Deloach were jointly tried before a jury for the murders of Randall White and James Smith. They were convicted of both murders and sentenced to concurrent 40-year prison terms.
On appeal both defendants contend (1) they were not proven guilty beyond a reasonable doubt and (2) they were denied a fair trial when the prosecutor informed the jury defendants could not receive the death penalty. Defendants further contend that if only one of their convictions is reversed then the cause should be remanded for resentencing on the remaining conviction.
The pertinent evidence at trial established the following. On October 3, 1974, police discovered the bodies of the victims in the basement of an abandoned apartment building at 3743 West 19th Street in Chicago. One body's hands were tied behind its back with electrical cord. The other was concealed in a large trunk. It was stipulated that if called the pathologist who performed the autopsies on the victims would testify that Randall White had received three gunshot wounds to the head; his death was caused by massive gunshot injuries to the brain. James Smith's death resulted from a massive gunshot wound to the brain; the entry point of this wound was the middle of the forehead.
Keith Scott testified that in September 1974 he lived with Byas on the first floor of a two-story apartment building at 1140 South Independence Street in Chicago. On September 15, 1974, Scott left the apartment at about 5 p.m. Present at the time were the victims, the defendants, Shelley Edwards, and Jane Townsend. When Scott returned at 11:30 p.m. he saw Edwards, Townsend, and Smith lying on the living room floor; Byas, Deloach, and Nate Sanders *fn1 were sleeping in Byas' bedroom. Scott went to sleep in his own bedroom.
The next morning Scott was awakened between 6 and 8 a.m. by Sanders, who had two guns in his hands, pointed down at Scott. Sanders said, "I just shot Bubba White." Scott said he thought Sanders was joking, but Sanders repeated that he had shot White. When Scott stated he did not want to become involved Sanders told him he was already involved and would have to do what Sanders asked him to do. Sanders then gave the guns to Scott, telling him to hide them. Scott placed them in a hall closet. Defendants entered the room, and Deloach stated he did not think White was dead. Defendants and Sanders then went upstairs and returned with White's body, wrapped in a quilt. They took the body to the basement and returned to the first-floor apartment, where Sanders told Scott to clean up the blood that had leaked from the quilt. Scott and Deloach spent some time cleaning up the blood.
Afterward the men all sat in the front room. Sanders told them they should "get their alibis together" and that if anyone talked they would "get the same thing." No one responded to this. Byas then stated that he was going to find out whether Smith or White was planning on "getting" Deloach. Minutes later Smith entered the house and Byas told him his girlfriend wanted him to return her phone call. Scott sat in his bedroom from where he could see Smith using the phone in Byas' bedroom. Also in Byas' bedroom were the defendants and Sanders. Deloach grabbed the phone from Smith. Byas asked Smith if he and White were planning to "get" Deloach and himself for stealing their food stamps. Smith denied any knowledge of this, but Byas said he had overheard them talking about "getting" Deloach and himself. Byas then told Smith "We just shot Bubba." When Smith expressed disbelief Deloach and Sanders took him to the basement to show him the body. They then returned with Smith to Byas' bedroom. Scott observed at this time that Deloach and Sanders each held a gun.
Smith kept pleading with Byas, telling him he had nothing to do with the alleged threat against Byas and Deloach. He also denied any knowledge of the food stamps being missing. Sanders told Smith that because he had seen the body nothing could be done to stop what was going to happen to him. Smith told them he would not go to the police and did not wish to die. Deloach told him to place his hands behind his back and then tied them with an extension cord. Smith again pleaded for his life and then asked for a cigarette. When they turned to get one Scott heard the sound of breaking glass. The defendants and Sanders emerged from the bedroom and Byas told Scott that Smith had jumped through the bedroom window.
Byas went out the front door and Deloach and Sanders went out through the basement. From the front porch Scott saw Byas standing on the street three houses from the apartment building. He heard someone yell "I got him." As Scott reentered the home he heard a shot and the moaning of someone in pain. He looked out and saw Deloach and Sanders holding revolvers. Sanders' weapon was smoking. Smith was leaning against the wall with a bullet hole in the center of his forehead. Sanders dragged Smith's body into the basement, followed by Deloach and Byas.
At this time Deloach's mother called. Scott answered the phone and then let Deloach out of the apartment, locking the door behind him. Byas obtained several sheets and blankets from the second floor. On Sanders' instruction Scott cleaned up the blood and glass outside the apartment and then returned to the basement. Sanders and Byas had wrapped Smith's body in the blanket.
Byas made a phone call and then he and Sanders told Scott to remain in the apartment while they got a trailer. They left in a 1972 Maverick belonging to Smith's girlfriend, Shelley Edwards. About 40 minutes later they returned to the apartment. Byas made another phone call and his brother, Eddie Byas, arrived a few minutes later. The Byas brothers went out and returned with a trunk. The trunk was taken to the basement where Scott, Phillip Byas, and Sanders placed White's body in it. Phillip Byas also placed a plastic bag over White's head. Sanders secured the blankets in which Smith was wrapped by tying a knot in them. The men went upstairs where Sanders, with a gun in his hand, stated that if anyone talked they would "get the same thing."
The two bodies were placed into a trailer attached to Shelley Edwards' car. Scott helped carry Smith's body to the trailer but did not help with the trunk bearing White. Phillip Byas, accompanied by Sanders, drove Edwards' car to a building at 19th and Ridgeway. On Byas' instruction Scott followed in his car. Eddie Byas followed behind Scott in his car. At that address Scott remained in his car but was able to see Phillip Byas and Sanders carry the trunk into the building. When Scott next saw them they pulled alongside his car, still hauling the now-empty trailer. They instructed him to wait at another location while they returned the trailer. Scott drove to that location and they rejoined him after about 40 minutes. Phillip Byas then asked Scott to follow them to a housing project at 35th and Federal. There, after Byas had wiped the door handle with a rag, they left Edwards' car in a driveway and Scott drove them back to the apartment.
Scott admitted at trial that in late October of 1974 when questioned by homicide detectives he denied any knowledge of the murders. He was arrested on November 14, 1974, and was charged with two counts of concealing a homicidal death. At that time he told police Sanders had shot and killed the victims, but he did not mention the involvement of the defendants. The next day he gave several typed signed statements in which he claimed to have first learned of the shooting on September 17 when the defendants and Sanders told him they had killed the men. Scott at that time claimed to have been asleep when the victims were killed. He had also claimed he did not awaken till noon, at which time only the defendants, not Sanders, were present. At that time he saw the containers in which the bodies were hidden but did not know of the existence of the bodies. He had denied any knowledge of the manner in which the bodies were ...