Appeal from the Circuit Court of Cook County, the Hon. James
M. Bailey, Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1983.
By information filed in the circuit court of Cook County, Luis Ruiz and Juan Caballero were charged with the murders of Michael Salcido, Arthur Salcido, and Frank Mussa. The defendants were also charged with armed violence (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 33A-2) and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10-3(a)) as to each of the victims. Ruiz and Caballero were granted a severance and were subsequently tried simultaneously before a single judge, making use of two separate juries. At the conclusion of trial, the Ruiz jury returned a verdict of guilty on all counts. The prosecutor requested a hearing to consider whether the death penalty should be imposed. The defendant waived a jury and, after hearing evidence in aggravation and mitigation, the trial judge sentenced Luis Ruiz to death. (Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 9-1(d), (h).) The sentence was stayed (73 Ill.2d R. 609(a)), pending direct appeal to this court pursuant to Rule 603 (73 Ill.2d R. 603). Caballero was also convicted of three counts of murder, three counts of armed violence and three counts of unlawful restraint. After a separate sentencing hearing he was also sentenced to death. We consider in this appeal only the conviction and sentence of Luis Ruiz.
For the reasons expressed in this opinion, we affirm the conviction and sentence of death.
On the evening of February 24, 1979, Arthur Salcido, then 19 years of age, and Frank Mussa, 16 years of age, both of Princeton, Illinois, together with Arthur's brother, Michael Salcido, 17 years of age, drove from Princeton to Chicago. Michael had been visiting his brother in Princeton, and that night the three boys went to his mother's apartment in Chicago. The boys had borrowed a car in Princeton and arrived in the city about midnight. At approximately 1 a.m., the three youths left the apartment and drove to an all-night restaurant in the neighborhood.
Defendant Luis Ruiz, aged 19, Juan Caballero, Placedo Laboy, and a fourth youth named Aviles, encountered Arthur, Michael and Frank in the restaurant. Michael approached Ruiz and inquired whether he knew where some marijuana could be obtained. Ruiz responded that he did not have any marijuana and he did not know where any could be obtained. Michael then asked Ruiz if he knew a person named Jose Cortez, a Latin Eagle. Ruiz, who was himself a member of a rival gang, the Latin Kings, asked Michael if he was a Latin Eagle. Michael responded affirmatively. Ruiz then told Michael that he and his companions were also Latin Eagles. At this point, Michael began to brag to Ruiz that he had ridden on "hits" with the Eagles and had been the driver on one such "hit" by the Eagles on two Latin Queens, the female companions and counterparts of the Latin Kings. After this exchange, Ruiz told Michael that he did in fact know where to obtain marijuana and that he would show Michael where to get it.
All got into the victims' automobile with Michael, Arthur and Frank in the front. Ruiz and his companions were in the back seat. Ruiz directed the driver into an alley where Ruiz and his companions got out of the car. They told Michael to accompany them down the alley and they would show him the location of the marijuana. Once they were out of sight of the automobile, Ruiz and his friends revealed that they were not Eagles but were instead Latin Kings, after which they beat Michael Salcido to the ground. When the beating was over, Laboy produced a gun and Aviles a knife, and they all marched Michael back to the car.
All seven youths then got into the car at the direction of Ruiz and his group. Laboy took over as driver, with Ruiz occupying the back seat along with Michael. Laboy drove to a second alley which was T-shaped. He drove some distance down the "T" where he stopped the car. Laboy and Caballero then took Michael and Frank around the corner of the alley and forced them to lie face down in the snow. Ruiz remained with the car while Aviles stabbed and killed Arthur Salcido in the automobile. Laboy then brought Frank Mussa back to the car, took the same knife, and stabbed Frank Mussa to death. Finally, Caballero returned with Michael Salcido and stabbed him to death in the back seat of the car. The members of the group then took articles of clothing from the trunk of the victims' automobile and attempted to wipe the vehicle clean of fingerprints. After completing this task, Ruiz and the others all left the scene. Ruiz and Caballero were arrested on March 3, 1979, and charged with the offenses described above.
In this appeal, defendant argues that because there is no evidence that he actually did any of the acts which resulted in death, his conviction on the principle of accountability cannot form the basis for imposition of the death penalty under the Illinois statute (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 9-1). Further, if the statute allows death to be imposed on a defendant who is merely accountable for the conduct of another, such provision is unconstitutional. In addition, the defendant argues that the procedure employed at trial denied his right to a severance and that he has not been proved guilty beyond a reasonable doubt.
We turn first to a consideration of whether the proof adduced at trial is sufficient to sustain a conviction for murder, armed violence, and unlawful restraint. We agree with the defendant that there is no direct evidence establishing that Ruiz ever struck any of the blows that resulted in the deaths of the victims. However, the case was submitted to the jury with proper instructions setting forth the principle of accountability, and the record proves Ruiz' guilt on each charge beyond a reasonable doubt as a willing participant in the criminal enterprise. There is no doubt that Ruiz was legally accountable for the conduct of his companions and, as such, shares equally in their guilt.
In People v. Rybka (1959), 16 Ill.2d 394, this court upheld the defendants' murder convictions predicated solely upon their being accountable for the actors' conduct, even though they were not present during the crime. In Rybka, 13 persons embarked upon a venture to "get a negro." (16 Ill.2d 394, 400.) They departed in two groups, employing separate vehicles, an Oldsmobile and a Chrysler. The two groups started out together, being led by the Oldsmobile, but soon became separated. The occupants of the Chrysler eventually disbanded and went home without incident. The other group, however, accomplished their purpose when one of them struck the victim in the head with a hammer. Despite the fact that defendants Gorski and Budz were occupants of the Chrysler and consequently not present when the crime was committed, this court upheld their convictions for murder and observed:
"Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction as a principal for a crime committed by another in furtherance of the venture. People v. Tarver, 381 Ill. 411; People v. Rudecki, 309 Ill. 125." People v. Rybka (1959), 16 Ill.2d 394, 405.
Active participation has never been a requirement for the imposition of criminal guilt upon the theory of accountability. People v. Morgan (1977), 67 Ill.2d 1, 9; People v. Kessler (1974), 57 Ill.2d 493, 497-98, cert. denied (1974), 419 U.S. 1054, 42 L.Ed.2d 650, 95 S.Ct. 635; People v. Allen (1974), 56 Ill.2d 536, 541, cert. denied (1974), 419 U.S. 865, 42 L.Ed.2d 102, 95 S.Ct. 120; People v. Hill (1968), 39 Ill.2d 125, 134-35, cert. denied (1968), 392 U.S. 936, 20 L.Ed.2d 1394, 88 S.Ct. 2305; People v. Johnson (1966), 35 Ill.2d 624, 626; People v. Richardson (1965), 32 Ill.2d 472, 476-77, cert. denied (1966), 384 U.S. 1021, 16 L.Ed.2d 1023, 86 S.Ct. 1935.
Section 5-2(c) of the Criminal Code of 1961 provides that a person is legally accountable for ...