Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendants Darryl Bell, Kevin Mitchell, William Martin, and Vincent Bevley were convicted, after trial by jury, of murder (one count each), attempted murder (five counts each), and armed violence based on attempted murder (five counts each). (See Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a), 8-4(a), and 33A-2.) No issue is raised on the sentences imposed by the trial court, but the defendants assert that their convictions should be reversed for the following reasons:
1. The evidence is not sufficient to prove that (a) Mitchell and Bell intended to kill the attempted-murder complainants, or (b) that Bevley and Martin are accountable for the conduct of their co-defendants.
2. The court erred when it declined to answer a question submitted by the jury during its deliberations.
3. A prosecutor made improper comments during argument.
4. It was improper to enter concurrent convictions on the attempted-murder and armed-violence verdicts.
We disagree with the first three contentions, and accordingly, we affirm in part and vacate in part. Before stating the evidence which is material to our decision, it is important to clarify our role in reviewing the adequacy of evidence to support criminal convictions.
"The elementary but crucial difference between burden of proof and scope of review is, of course, a commonplace in the law. The difference is most graphically illustrated in a criminal case. There the prosecution is generally required to prove the elements of the offense beyond a reasonable doubt. But if the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. In other words, an appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence." Woodby v. Immigration & Naturalization Service (1966), 385 U.S. 276, 282, 17 L.Ed.2d 362, 367, 87 S.Ct. 483, 486; see also Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L.Ed.2d 560, 573, 99 S.Ct. 2781, 2789 (holding that when reviewing the sufficiency of evidence to support a State criminal conviction, "the relevant question [under the due process clause of the fourteenth amendment] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt").
Illinois reviewing courts> follow the same approach when evaluating evidence in criminal cases, and where there is sufficient evidence of guilt, if believed by the jury, to prove defendant guilty beyond a reasonable doubt, a conviction will not be reversed. (See People v. Goodpaster (1966), 35 Ill.2d 478, 480.) As the supreme court explained in People v. Henderson (1947), 398 Ill. 348, 353-54,
"It was for the jury to determine the credibility of the various witnesses and to attach such weight to their testimony as they thought it was entitled to. The jury accepted the testimony of the People as being the correct version of what occurred. The jurors' acceptance of the People's theory leaves nothing for the court to determine except as to whether there is sufficient evidence, if believed to be true, to prove defendant's guilt beyond a reasonable doubt."
• 1 Accordingly, we must view the evidence in the light most favorable to the prosecution, and the evidence of guilt cannot be disregarded on review unless it is improbable, inconclusive or contrary to human experience. (See People v. Stevenson (1962), 25 Ill.2d 361, 364-65; People v. Ellis (1978), 74 Ill.2d 489, 496.) Also, in light of the legal principles mentioned above, we need not set forth a comprehensive abstract of the testimony, and our statement of the material evidence represents the testimony taken in the light most favorable to the prosecution.
On August 29, 1980, there was a backyard party, attended by about 40 young people, at 8856 South Union Street in Chicago. Around midnight, defendant Kevin Mitchell began to repeatedly make unusual gestures which involved crossing his arms over his chest with thumbs up, and then moving clenched fists to his forehead. Andre Long testified that some of the other young men at the party reacted to these gestures by talking among themselves. According to Long, he asked Mitchell to leave the party because he was afraid there was going to be a fight between Mitchell and some of the others at the party.
Mark Petties testified that he and Chappelle Crump escorted Mitchell to the front of the house. They were followed by 10 unidentified young men. Andre Long testified that these were the same gentlemen who began to talk among themselves when they saw Mitchell making his unusual gestures.
When these two groups got to the front of the house, several of the unidentified young men began to beat Mitchell. The beating was eventually stopped, and Mitchell, bloodied, drove off in a blue car. Two or three people left with Mitchell, and one of the other occupants was identified by Derrick Sims as defendant William Martin.
About 15 minutes later, Mitchell drove back to 8856 South Union, stopped, got out of his car, fired several shots at the house, and drove away. Nobody was injured during this incident. And although there were two or three passengers in Mitchell's car, they could not be identified.
The guests at the party began to go home after the first shooting, and about 15 people were standing near the front of the house when, 20 minutes later, Mitchell approached the house driving a white car. The car stopped in front of the house, and Mitchell fired several shots out of the window with a .38-caliber handgun, while one of his passengers, Darryl Bell, fired a sawed-off .22-caliber rifle. Up to six shots were fired, and Ronald Yates, who was standing in front of the house, was killed by a .38-caliber bullet in the forehead.
Mark Petties, Carlos Tyree, Chappelle Crump, Andre Long, and Derrick Sims were in front of or near the front of the house at 8856 South Union during the second shooting incident. These witnesses testified that Mitchell and Bell fired at the house, and the witnesses said they ducked when the volley of gunfire began.
Vincent Bevley was identified as sitting behind Mitchell during the second shooting incident, and William Martin was identified as sitting on the passenger side of the backseat. A nearby police car responded to the gunfire, and Officer George Bryja testified that defendant Bevley threw the sawed-off rifle out the car window during the chase. Plus, after the defendants were arrested, a .38-caliber revolver was discovered under the rear seat near where Martin was sitting.
Based on this evidence, the jury found the defendants guilty of murdering Ronald Yates, and of attempting to murder Mark Petties, Carlos Tyree, Chappelle Crump, Andre Long, and Derrick Sims. The jury also found the defendants guilty of armed violence based on the attempted-murder findings.
The first issue on appeal is whether the evidence is sufficient to support finding that the shooters, Mitchell and Bell, intended to kill Petties, Tyree, Crump, Long and Sims.
Intent to kill is not necessary for a murder conviction, and it is sufficient to sustain such a charge if the defendant knew his acts "create[d] a strong probability of death or great bodily harm." (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2).) But such knowledge is not sufficient to support an attempted-murder conviction (see People v. Trinkle (1977), 68 Ill.2d 198, 201-02), and "to convict for attempted murder nothing less than a criminal intent to kill must be shown." People v. Harris (1978), 72 Ill.2d 16, 27.
"The gist or essence of the crime of assault with intent to murder is a specific intent to take life and such intent must be proved as charged beyond a reasonable doubt. However, since intent is a state of mind, and, if not admitted, can be shown only by surrounding circumstances, it has come to be recognized that an intent to take life may be inferred from the character of the assault, the use of a deadly weapon and other circumstances." People v. Coolidge (1963), 26 Ill.2d 533, 536; accord, People v. Koshiol (1970), 45 Ill.2d 573, 578; People v. Wilson (1930), 342 Ill. 358, ...