Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 20, 1983.
Following a jury trial in the circuit court of Cook County, defendant, Clarence Barney, was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1) and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-1 through 33A-3). Defendant was sentenced to a 30-year term of imprisonment for murder. No sentence was imposed for the armed violence conviction. Defendant appeals his conviction, arguing that (1) he was deprived of his right to have the jury determine whether he was guilty or innocent of voluntary manslaughter when the trial judge told the jury, in response to its inquiry during deliberations, that it need not reach a verdict on voluntary manslaughter if it found defendant guilty of murder; (2) the State improperly shifted the burden of proof to him by commenting in closing argument on his failure to produce occurrence witnesses; and (3) the trial judge improperly considered a factor in aggravation and refused to consider another factor in mitigation at sentencing.
The State argued additionally that defendant also should be sentenced on his armed violence conviction. The State abandoned that claim, however, in view of the recent Illinois Supreme Court holding in People v. Donaldson (1982), 91 Ill.2d 164, 170, 435 N.E.2d 477, 479, that "multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges."
We affirm defendant's conviction and sentence for murder and vacate his conviction for armed violence.
On October 22, 1979, four men were standing in the lobby of the Chicago Housing Authority building at 3653 South Federal Street, Chicago, Illinois. The building has a separate entrance and lobby at 3651 South Federal. The four men in the lobby were Eugene Hoskins, Earl Willis, Robert Smith, who was the murder victim, and Gerald Spratlin, who was stabbed and wounded. Robert Smith recently had moved from Mississippi to Chicago and was living with his sister and her family at 3651 South Federal.
At about 10 p.m., defendant entered the lobby and spoke to Hoskins about money with which to buy marijuana. These two began to argue. Testimony from Spratlin and Willis indicated that defendant thought Hoskins owed him $5, and Hoskins said he had no money. Defendant left and walked into the lobby at 3651 South Federal; a few minutes later the four others followed. When they entered, several people were standing in the lobby along with defendant.
Defendant and Hoskins resumed their argument. After a few minutes defendant left the lobby and went upstairs. He returned in about five minutes and again asked Hoskins for the money; Hoskins repeated that he did not have it. Spratlin and Willis testified that defendant, who was angry, said, "Well, I got something for you all." Defendant struck Spratlin on the shoulder and grabbed Smith by the neck, pushed him into a flower box, and struck him in the chest. Spratlin picked up a bottle and tried to hit defendant with it, but could not because of pain in his arm. Both Spratlin and Willis ran out of the building. Defendant ran after Spratlin but did not catch him. Spratlin then went to Hoskins' apartment, where he discovered a knife wound in his shoulder. He went to a hospital for treatment.
Tinsel Wince, Smith's sister, testified that Smith, who was 18 years old, had lived with her for two weeks before he was killed. Wince's daughter, Treva Smith, testified that the night of October 22 Smith came into their apartment with blood on his jacket and blood coming from his mouth. He went into the bathroom and locked the door. When she heard him "growling" she woke her mother, who told Smith to open the door. He said he could not, but managed to open the door and then fell. He told Wince he had been stabbed but did not know the name of the fellow who did it. Wince called an ambulance, which took Smith to the hospital, where he died. A Cook County deputy medical examiner testified that Smith died of a stab wound to the heart.
Defendant testified that at 7 p.m. on October 22, 1979, he gave Hoskins $5 to buy marijuana, but received neither the marijuana nor a refund of the $5. Later that night in the lobby he talked to Hoskins, who said he did not have the money. Hoskins left, and defendant began to talk to Spratlin and Smith. During their conversation, Hoskins returned. Then, defendant testified, Smith struck him from behind and Hoskins also struck him. Spratlin was standing in front of defendant with a bottle in his hand. Defendant said that he pulled out a knife to defend himself and stabbed Spratlin and Smith with it. Defendant asserted that he then went to a friend's apartment.
Defendant was arrested at the friend's apartment at about 3 a.m. He showed the police where the knife with which Smith and Spratlin had been stabbed was hidden in some bushes. Defendant was taken to the police station; two investigators read him his rights and then questioned him. Defendant told them he had used the knife to defend himself. The investigator who testified said that he saw no bruises, cuts, swelling, or blood on defendant.
After closing arguments the trial judge instructed the jury on the proof necessary to sustain the charges of both murder and voluntary manslaughter. During its deliberations, the jury sent the trial judge a note asking, "If we find Mr. Barney guilty of murder, do we also reach a verdict on voluntary manslaughter? and vice versa?" The judge simply answered no to both questions. Shortly thereafter, the jury reached verdicts finding defendant guilty of murder and armed violence.
A sentencing hearing was held on August 21, 1980, at which factors in aggravation and mitigation were presented. Although the pre-sentence report indicated that defendant had no history of health problems and had never received psychiatric treatment, defense counsel claimed that defendant had been hospitalized in Tinley Park Mental Health Center in September 1979. The trial judge found it conclusive that after the trial defendant had been found fit for sentencing; he sentenced defendant to 30 years' imprisonment for murder. No sentence was imposed for armed violence.