APPEAL from the Circuit Court of Du Page County; the Hon.
CHARLES NORGLE, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
In a jury trial, the defendant, Robert Gangestad, was convicted of murder and thereafter sentenced to a term of 40 years in prison. He appeals, contending that he was not proved guilty of accountability for the murder beyond a reasonable doubt, that his motion to suppress his statement was improperly denied, that numerous trial errors deprived him of a fair trial, that the statute (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(2)) under which he was convicted of killing a fellow county jail inmate, providing the possibility of a death penalty, was unconstitutionally vague; and, alternatively, this his sentence was disparate.
Scott Brunoehler, an inmate of the Du Page County jail, was found hanged in his cell on May 21, 1979. The defendant, and two other inmates, William Hopson and James Devin, were indicted for his murder. (Hopson pled guilty pursuant to a plea bargain and was sentenced to 20 years; Devin was tried and sentenced to death.)
Several residents of the jail tier, #1 East, testified. They related that, on the 20th of May, 1979, a fight broke out between defendant and another inmate, over a bed; a sheet was bloodied; defendant and another tore the sheet, flushed part down a toilet; the remainder was later seen being braided by defendant and Devin. Later, defendant and Hopson were seen holding the victim down and Devin was seen with the braided sheet in his hand.
Defendant was holding the blanket, holding the victim to the bed. Hopson was holding the victim's feet. Devin, Hopson and defendant picked up the victim, who was "folded" at the waist, in the blanket, dragging him to a picnic table in the common area. Devin ran the "rope" through the light fixture and defendant and Hopson boosted the victim and he was left hanging. Defendant, Hopson and Devin returned to their bunks. Later the guards came through, found the victim hanging and cut him down.
One of the witnesses testified that when he saw Devin and the others at the victim's bunk, Devin had the rope attached to the victim's neck, and he heard defendant then say "Stop, stop," and Devin answer, "If we don't kill him now, we'll get it for attempted murder."
Hopson testified that he told the officers that the victim had talked of becoming an informant to secure his release from jail since his family was not helping. An inmate testified that the victim had earlier said "I'm going to hang myself." Another inmate said Devin responded, "That can be arranged." Both Hopson and another inmate testified that Devin also said, in defendant's presence, just before Devin placed the rope around the victim's neck, "narcs don't make it."
An inmate also testified that earlier in the day defendant and Devin were braiding the sheet into a rope, then pulled the rope between them, with Devin commenting, "It was strong enough." Another, that defendant was striking the victim while the victim was on the bed.
The State established by the testimony of Dr. Loren Henley, a pathologist, that various marks on the victim's neck were made while he was alive; that the cause of death was hypoxia, lack of oxygen to the brain caused by tying a rope around the neck which shut off the victim's blood supply.
John Rotunno, an investigator for the State's Attorney's office, testified that he and another investigator, Cresto, interviewed defendant at an interview room at the jail on June 7, 1979; that he was given Miranda warnings immediately and read and signed a waiver; that he and Cresto asked why they had been asked to come to see defendant, and defendant answered that he had spoken to his attorney and had been told to cooperate to the fullest extent; that defendant said he wanted the State to know that a "blanket party" was supposed to be thrown for the victim. In answer to the investigator's inquiry, defendant agreed to "go over the events which transpired on May 20th and 21st" and "would go over the statement with us." (A statement taken on June 5, 1979, had been suppressed by the court, because there was no waiver of counsel who had been appointed and was not notified.) The officer testified that defendant related the fight over the bed, the partial flushing of the sheet; that later he heard Devin say "How much can I get for this snitch" and said "There's going to be a lynching tonight * * * and the snitch is going to be lynched"; that later Devin told defendant to get a piece of sheet to braid, he helped braid it and both he and Devin tested it; at about 1 a.m. on the 21st Devin came to defendant and said, "Let's do it now"; that defendant said, "No he's still up" and heard someone say a blanket party would be better. Hopson took the victim's feet, and, at Devin's request, defendant held on to his arms; that Devin put the noose over the victim's neck and began strangling him, whereupon defendant said "Stop," but Devin said "We can't stop or else they'll get us for attempt murder." Defendant noticed the victim had urinated over himself while on the bed, said "Stop he's dead," but Devin said "Let's go hang him in the dayroom before the guards come." He then related the hanging. Asked by the interrogator why he didn't stop it, defendant said, "I could have stopped it. I could have either yelled for the guards or I could have hit Devin in the face." The officer, however, took no notes and did not mention the "stopping" statement in his report. John Cresto testified essentially to the same facts.
Defendant testified at trial that he was 18, had pled guilty to aggravated battery with a 75-day sentence and was due to be released on May 23, 1979. He related the fight over the bed, the ripping of the sheet in half, that an inmate was supposed to flush the other half also; that it could have been used for a headband, or jump rope, or to fasten a door shut; then it was placed under Devin's bed. The next time defendant saw it, it was around the victim's neck. Later Devin came to his bunk, and he answered he was ready, thinking it was a "blanket party"; he hit the victim three or four times; then he saw Devin take the rope and put it around the victim's neck, and defendant told him to stop; that Devin said "it's too late now." That Devin continued for 4 or 5 seconds and it was the end. Defendant was too scared then to stop Devin. No more than 10 seconds elapsed from when defendant first saw the rope in Devin's hand to when the victim turned blue and went limp on the bed. The victim appeared to be dead. Devin told him to pick the victim up before the guard came. He did, and Devin pulled the victim up. Defendant denied that he told Rotunno that he could have stopped it or yelled for a guard, or that he spoke of a "lynching."
Defendant contends that the evidence is insufficient to prove beyond a reasonable doubt that he either intended to kill or do great bodily harm, or that he knew that his acts created a strong probability of death, as required under section 9-1(a)(1), (a)(2) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1), (a)(2).) He argues that his intention was merely to participate in a "blanket party" which would not ordinarily involve serious injury to the victim. He also argues that he is not accountable for Devin's acts because he withdrew when he observed that Devin was strangling the victim.
There appears to be credible evidence, however, that would support the jury verdict either on the basis of the defendant's direct participation or on accountability principles. While accountability may not exist even though a defendant has the proper mental state if before the commission of the offense he terminates his effort to promote or facilitate such commission and wholly deprives his former efforts of effectiveness, gives timely warning to law enforcement authorities, or otherwise makes an effort to prevent the commission of the crime (Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c)(3)), we conclude that the defendant has not made the defense of terminating his participation in the crime.
There was testimony that defendant had helped Devin braid the sheet into a rope earlier in the day, had heard Devin conclude that it was "strong enough." He stated to investigator Rotunno that he heard Devin say that the victim would be "lynched." He heard someone say prior to waking up the victim that "a blanket party would be better," from which the jury could infer that something other than a "blanket party" was involved. He heard Devin say, "Narcs don't make it," when the rope was being placed around the victim's neck. The defendant continued to hold the victim down after he said he asked Devin to stop, and after he heard Devin refuse, saying they could be charged with attempt murder. It was not until the victim was unconscious and defendant remarked to the effect that he was dead that defendant released his hold of the victim; that he participated in the "hanging" at a time when, the medical testimony indicated, the victim probably was not dead.
• 1 The gist of defendant's argument is that the facts that witnesses were inconsistent in their testimony and defendant was to be released in two days militate against finding of intent. In such circumstances, however, it is the prerogative of the jury to ascertain the truth, and reviewing courts> will uphold the verdict on issues of weight and credibility unless the evidence is so improbable as to raise a reasonable doubt. (People v. Manion (1977), 67 Ill.2d 564, 578, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513; People v. Yarbrough (1977), 67 Ill.2d 222, 227.) People v. Hister ...