Appeal from the Circuit Court of St. Clair County, the Hon.
John J. Hoban, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1983.
Defendant, Freddie C. Tiller, Jr., with a co-defendant, Andre Jones, was indicted in the circuit court of St. Clair County for three counts of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), three counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), and three counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). Jones subsequently pleaded guilty to three counts of murder and was sentenced to death. On appeal Jones' convictions and two of the death sentences were affirmed. People v. Jones (1982), 94 Ill.2d 275.
The victims of the murders were Samuel Nersesian, Debra Brown, and Richard Stoltz. Prior to trial defendant filed a motion "to amend the indictment" and requested that the three counts concerning Stoltz be severed on the ground that they related to an occurrence separate from the offenses involving Nersesian and Miss Brown. The motion was allowed, and the People elected to proceed against defendant on the six counts involving Miss Brown and Nersesian. Defendant was convicted of two counts of murder, two counts of armed robbery, and two counts of armed violence. A second jury was impaneled and found that one or more of the factors set forth in the statute (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) existed and, following the consideration of aggravating and mitigating factors, found that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentences were stayed (73 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603).
At trial, Laurie Elem testified that she and her three children had lived with Andre Jones for approximately two months prior to the date of the occurrences in question. On the morning of April 30, 1979, she and Jones left their apartment and walked to the home of her cousin, Lucy Williams. Jones was carrying a .22-caliber revolver. At the Williams residence they met defendant, who had spent the night there. Defendant is also a cousin of the witness. After a brief visit, Jones, Elem, and defendant left the Williams apartment together. As they walked they drank beer and a bottle of "brass monkey," described as being a kind of wine. There was some discussion of robbing the Illinois Cleaners, a cleaning shop located across the street from the apartment occupied by Jones and Elem. Meanwhile, as they approached another cleaning shop, defendant asked Elem to go into the cleaners and request permission to enter the back room to find her clothes. While there, Elem was to unlock the back door so that defendant and Jones could enter to rob the proprietor of the store. Elem refused this request and the three continued walking. They walked for some distance along a railroad track and came to a brickyard where they saw a man, Richard Stoltz, loading bricks onto a trailer. Defendant asked Jones for the revolver Jones was carrying, stating his intention to rob the man. Jones gave him the weapon. The two men approached Stoltz, and Elem walked away toward the street. Elem turned and saw defendant pointing the gun at Stoltz. She saw Stoltz remove something from his arm while shaking his head sideways. Elem turned her head from the scene and then heard a shot. She started running, and defendant caught up with her, carrying the gun in his hand. Jones soon rejoined them, carrying a watch and a set of keys. Jones told defendant, "Man, you shot the shit out of that honky," to which defendant replied, "I mean business. He wouldn't up the cash." Jones then retrieved the gun from defendant, replaced the used cartridge, and put the gun in his pocket. The three proceeded towards the Jones and Elem apartment. The two men discussed robbing the Illinois Cleaners and defendant again tried to get Elem to help, suggesting a scheme similar to the one proposed for robbing the cleaners they had passed earlier. Elem again refused. Defendant and Jones discussed who would hold the gun and defendant stated that he wanted to. When they reached Illinois Cleaners Jones removed a ski mask from his back pocket. Elem left Jones and defendant near the cleaners, crossed the street, and went home. Approximately 15 to 20 minutes after she left Jones and defendant, Jones came to her apartment, but soon left again. Defendant then came in, but he too left after a short time. The two men made a number of trips in and out of the apartment, and during one of these trips defendant brought in a television set and Jones brought in some money and some clothing. Elem did not see defendant again until later that evening when he returned to the apartment. During this visit defendant asked Jones, "Did you put the mail lady up?" When defendant finally left the apartment that evening he had with him the watch taken from Stoltz and a share of the money obtained from the robbery of the cleaners.
Defendant testified that on April 30, 1979, between 8 a.m. and 8:30 a.m., Jones, Elem, and defendant set out together, walking toward the Jones and Elem apartment. They walked and drank some beer and a wine-like alcoholic beverage. Sometime that morning defendant ingested five pink pills that he had bought from someone on the street. Defendant did not know the contents of these pills. Defendant stated that as a result of the alcoholic beverages and the pills he was unable to remember clearly what happened that day. Defendant testified that he and Jones and Elem walked until they came to the brickyard where Stoltz was loading bricks. Defendant said to Jones, "Let's go make some money," intending that he and Jones help the man load the bricks for pay. As they approached Stoltz, Jones drew a gun and pointed it at Stoltz. This was the first time defendant had seen the gun. Jones ordered Stoltz to give him something and Stoltz denied having it. Defendant began running away from the scene and heard a gunshot. He denied seeing the actual shooting or ever possessing the weapon. The three reunited and continued walking until they reached the alley beside the Illinois Cleaners. Defendant and Jones stopped, but Elem walked on past the cleaners. Jones said he had some clothes in the cleaners so the two men entered the shop. Jones placed a cleaning ticket on the counter, and when the proprietor picked it up, Jones drew the gun and announced a "stick-up." Jones and defendant went behind the counter, and while Jones was pointing the gun at the proprietor, defendant took a television set from the back of the shop. Defendant carried the television set to the front of the shop and set it down. He observed that Jones was holding the gun against the proprietor and was searching the drawers behind the counter. Defendant began to leave the cleaners without the television set when he observed a postal mail carrier approaching the shop. Before leaving, defendant twice told Jones not to hurt the "mail lady." Defendant left the cleaners and passed by a "gas company car" parked at the corner. Defendant waved a "peace sign like" to the occupants of the car. Defendant caught up with Elem, and the two of them went to her apartment. After a few minutes defendant left the apartment and returned to the cleaners. Not seeing anyone inside, defendant opened the front door, reached inside, and picked up the television set from its position near the door. Defendant had not returned for this purpose. Defendant placed the television set in a "mail Jeep" parked nearby and drove to Elem's apartment, where he left the television set. Defendant drove the mail Jeep to an abandoned house and searched through the undelivered mail. He drove the mail Jeep to his aunt's home and while there he talked with Annette Simpson. He showed her a number of income tax refund checks which he had found among the undelivered mail and gave her two of them. He drove the mail Jeep around a while longer and eventually abandoned it. Later that day defendant saw Simpson and asked if she had cashed any of the checks he had given her. Sometime between 5 p.m. and 6 p.m. defendant returned to the Jones and Elem apartment. Both Jones and Elem were at the apartment. Defendant asked Jones what had happened at the cleaners but could not remember Jones answering. Defendant received some curtains which had been taken from the cleaners and then left the apartment. Defendant denied asking the question, "Did you put the mail lady up?" and denied receiving any money from the robbery of the cleaners.
Calvin Randolph, an Illinois Power Company employee, testified that he was driving past Illinois Cleaners at approximately 10:30 a.m. on April 30, 1979, when he noticed two men, one of whom was wearing a ski mask, standing in the alley adjacent to the cleaners. Randolph momentarily stopped his car and then moved it to a position from which he could observe the entrance to the cleaners. Randolph observed defendant walking away from the cleaners. As defendant passed Randolph's car he looked in and waved a "peace sign" to Randolph. Defendant continued down the street until he was out of sight. Soon thereafter Randolph left the scene. Randolph testified that he had seen no mail truck and heard no shot.
Annette Simpson testified that sometime between 9 a.m. and 10 a.m., April 30, defendant contacted her at the house of a relative. Defendant gave her two checks and told her he had a mail truck outside. Simpson asked no questions at that time. Later that day she cashed one of the checks. At about 3 p.m. she saw defendant and he mentioned the robbery and the killing at the cleaners. Simpson testified that defendant told her he had killed the "mail lady and the cleaners man" and stated that she did not believe him at that time. Later that day she heard about the robbery and killings from someone else. She subsequently burned the other check which defendant had given her.
The medical testimony showed that Stoltz had received a gunshot wound to the left eye and that the cause of death was brain damage. Nersesian had received two gunshot wounds to the skull, both of which were contact wounds. The cause of Nersesian's death was brain damage resulting from the two head wounds. Miss Brown had received two gunshot wounds, one slightly right of the center of the chest and another in the mouth. The cause of death was damage to the heart. Gun powder marks indicating a shot from close range were found around her mouth. A ballistics expert testified that the bullet fragments removed from the three bodies could have been fired from the weapon identified as the .22-caliber revolver carried by Jones on April 30, 1979.
At the close of the evidence, the jury was instructed, inter alia, on the felony-murder doctrine and the theory of accountability. The jury returned general verdicts finding defendant guilty on all of the six counts charged.
The People gave notice that they intended to seek the death penalty on the ground that defendant had been convicted of murdering two persons. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(3).) A new jury was impaneled for the sentencing hearing. The record fails to reflect the reason a separate jury was chosen; the court had earlier denied defendant's motion for a separate jury. During voir dire the court informed the new jury that the issue of whether defendant murdered two people had already been decided. The evidence introduced at the first phase of the sentencing hearing consisted of a certified copy of the murder convictions and the testimony of the pathologists who performed the autopsies on Nersesian and Miss Brown. At the conclusion of this first phase of the sentencing hearing the jury determined that defendant had attained the age of 18 or more at the time he committed the offense of murder and that he had been convicted of murdering two or more individuals. After receiving information in aggravation and mitigation the jury decided that there were no mitigating factors sufficient to preclude a sentence of death. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(g).) The court sentenced defendant to death for the murders of Samuel Nersesian and Debra Brown.
We consider first defendant's contention that he cannot be held liable for Jones' actions against Miss Brown because he was not present when she was shot and because there was no showing that he encouraged or aided Jones in the commission of the offenses against her. In support of this contention, defendant asserts that the undisputed testimony shows that he disassociated himself from any "common criminal purpose" towards her by leaving the cleaners and admonishing Jones not to hurt her. We do not agree. There is ample evidence to support defendant's conviction of the robbery and murder of Nersesian. The jury had before it evidence to support the conclusion that defendant and Jones planned the robbery and that Miss Brown was murdered to prevent her from identifying Jones and defendant as the robbers of Nersesian. As such, her murder was in furtherance of the robbery, and defendant is accountable for his accomplice's act. Even if the jury believed that, as he left the cleaners, defendant warned Jones not to hurt Miss Brown, he could nevertheless be accountable for her murder. Any act committed by his accomplice Jones in furtherance of the robbery of Nersesian is attributable to defendant. People v. Brendeland (1957), 10 Ill.2d 469, 472.
Defendant contends that his alleged admonishment to Jones not to hurt Miss Brown is a "critical factor indicating that [he] did not share any common criminal purpose as to her * * *." Defendant's argument is essentially that he withdrew from the robbery when he left the cleaners due to his admonition to Jones regarding Miss Brown. This argument, which apparently is premised on subsection (c)(3) of section 5-2 of the Criminal Code of 1961, must fail. The statute provides:
"[A person is not accountable under this section if]
(3) Before the commission of the offense, he terminates his effort to promote or facilitate such commission, and does one of the following: wholly deprives his prior efforts of effectiveness in such commission, or gives timely warning to the proper law enforcement authorities, or otherwise makes proper effort to prevent the commission of the offense." (Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c)(3).)
Defendant's actions upon leaving the cleaners hardly vitiates his participation in the commission of the robbery, and certainly does not absolve him from liability for the murder of Miss Brown. Considering his apparent knowledge of the fact that Jones might harm her, it is essential that the record show some affirmative act which would have deprived his prior efforts of their effectiveness. A similar set of facts was presented in People v. Tyler (1979), 78 Ill.2d 193. In that case the defendant and his two confederates set out to burglarize a house. Upon encountering the woman who lived there, one of the defendant's confederates took the woman to a back bedroom and raped her. Although the defendant did nothing to facilitate the offense, he was held accountable for the rape for the reason that he was aware of the crime his confederate was committing and "did nothing to disassociate himself from the occurrence * * *." (78 Ill.2d 193, 197; see also People v. Hubbard (1973), 55 Ill.2d 142; People v. Brown (1962), 26 Ill.2d 308.) Here, as in Tyler, defendant was aware of another crime that was going to occur due to the commencement of the robbery, but did nothing to prevent the crime. A mere statement of disapproval of his accomplice's intended acts is insufficient to exonerate defendant from liability for the crimes against Miss Brown.
Defendant next argues that the conviction for the armed robbery of Miss Brown must be reversed because no armed robbery was proved. Defendant asserts that he cannot be held accountable for the armed robbery of Miss Brown because any force directed at her was not for the purpose of obtaining property through force or intimidation. To sustain a charge of armed robbery it is essential that the robber use violence or fear of violence as the means to take property in ...