Appeal from the Circuit Court of Cook County; the Hon. Richard
L. Samuels, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was charged with armed violence, unlawful use of weapons, and the murder of Michael Jackson. Following a bench trial, the trial court entered a finding of guilty as to armed violence and unlawful use of weapons and continued the case for sentencing. On the next date the court entered a finding of guilty of murder and imposed sentence of 10 years only for armed violence. Thereafter, pursuant to a supervisory order of the Illinois Supreme Court, the trial court entered judgment on the murder conviction, imposed a sentence of 20 years thereon, and vacated the armed violence conviction. Defendant appeals.
The issues presented are whether: (1) the finding of guilty entered on April 15, 1981, constituted an acquittal of the charge of murder; (2) defendant's right against double jeopardy was violated; and (3) the State failed to prove guilt beyond a reasonable doubt.
Michael Jennings, witness for the State, testified that just prior to the shooting he was on his front porch with Michael Jackson and several other persons. A car drove up and Edward Clerk and defendant got out. Clerk walked up to Jackson and said, "Hey, man, I heard you been looking for me," then slapped Jackson with the .25-caliber handgun he was holding. As Jackson stepped back, Clerk fired the gun at him. Jackson then pulled out a .38-caliber handgun and fired at Clerk. As Clerk fell to the ground, Jackson began running. Until the shots were exchanged, defendant stood 12 to 14 feet from Clerk and 10 to 12 feet from Jackson, while holding a sawed-off shotgun. After Jackson shot Clerk, defendant fired the shotgun in the general direction of Jackson, then picked up the .25-caliber handgun and fired it toward Jackson, who by then was running away from where defendant stood.
The evidence showed that Clerk died from a gunshot wound in the head inflicted by a .38-caliber handgun. Jackson's body was found approximately one block from the scene of the shootings. He died as a result of a bullet from a .25-caliber gun entering his chest and traveling to his heart.
In a written statement made at the police station after the shooting and read in court defendant stated that Jackson had first tried to hit Clerk, that Jackson first pulled a gun and shot Clerk, and that when defendant picked up Clerk's gun Jackson shot at him and only then did defendant fire at Jackson.
A defense witness testified to substantially the same chain of occurrences as the State's witness. He said that Clerk approached Jackson, hit him in the face, and then shot him. Jackson then shot Clerk.
On April 15, 1981, after closing arguments, the court stated that "under the evidence and facts as elicited here, while the defendant did not fire any fatal shot the defendant has been proven to be legally accountable for the actions of Edward Clerk. Were Clerk here and alive Clerk would definitely be guilty of murder." The court then entered a finding of guilty as to armed violence and unlawful use of weapons, ordered a presentence investigation, and continued the case to May 20, 1981, for sentencing.
On May 20 the court stated:
"There was a finding of guilty of Armed Violence and Unlawful Use of Weapons.
Since the finding, and since the completion of the trial, an Advanced Sheet Opinion has come down which causes me to think that, perhaps, improvidently I did not complete the record.
The advance opinion in question is People versus Donald Ellis in 93 Illinois Appellate Third, a First District case. *fn1
So, just to complete the record and, in fact, correct any inadvertent omissions, the Court does enter a finding of guilty of murder without going to a judgment of conviction."
The court then conducted a sentencing hearing only as to armed violence and then stated "The cause of death testified to as to Jackson was the bullet fired by Clerk, so actually there is one death here that the Defendant is accountable for and that is the death of Jackson." After finding that the offense of unlawful use of weapons was included and merged in the ...