Appeal from the Circuit Court of Cook County, the Hon. James
M. Bailey, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In a jury trial in the circuit court of Cook County defendant, Dennis Emerson, was convicted of the murder of Delinda Byrd. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) the People requested a sentencing hearing. The jury found that one or more of the aggravating factors set forth in section 9-1(b) existed, in that the murder occurred during the commission of an armed robbery, defendant was over 18 years of age when he committed the crime, and there were no mitigating factors sufficient to preclude a sentence of death (see Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)). The jury returned a verdict directing the court to sentence defendant to death, defendant was so sentenced, and the sentence was 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.
In addition to the conviction for murder, defendant was convicted of attempted murder, armed robbery and aggravated arson. His brother and co-defendant, Richard Jackson, was convicted of murder, attempted murder and armed robbery, but acquitted of aggravated arson. The co-defendant was not sentenced to death and is not a party to this appeal.
Robert Ray testified that he owned and operated the Centaur Lounge. He lived in the apartment in the rear of the lounge. Ray stated that at approximately noon on August 12, 1979, defendant called him on the telephone. In the conversation, defendant said that he had to do some things and that he would come by later on in the day. Defendant called two or three more times that day with essentially the same message. Ray recognized defendant's voice because he had known him for about four years and had previously spoken with him on the telephone. Ray also knew Ricky Jackson, a brother of defendant and Richard Jackson. Ricky had worked for Ray at the lounge, helping keep the lounge clean, "spinning records," and doing other chores. Ray stated that he knew of Richard Jackson, the co-defendant, and had seen him before, but did not know him personally.
Ray closed the lounge at about 2 a.m. As Ray was cleaning up, defendant and Richard Jackson arrived at the tavern and rang the doorbell. Ray let them in and they went to the kitchen in Ray's apartment. As they were talking, Delinda Byrd, Ray's girlfriend, arrived. Ray introduced her to defendant and Richard and the four of them continued the conversation. A short time later, defendant stood up, drew a gun, and told Ray and Delinda to lie on the floor. Defendant then left the room and returned with some electrical cord. Defendant tied their hands behind their backs and also tied their feet. Defendant took Ray's keys, opened the cash register, and removed all the money that it contained. Defendant took some guns which Ray had on the premises, and also took between $500 and $600 from Delinda. Richard found a "half pair of shears" (apparently half of a broken pair of barber's scissors) and gave it to defendant and told him to "use this." Defendant straddled Ray, raised him up by his right shoulder, and stabbed him twice in the right side of the chest. He went over to Delinda. Ray asked defendant to stop, but defendant just looked at Ray "real cold" and repeatedly stabbed Delinda. Defendant went into Ray's bedroom. Ray smelled smoke and saw flames coming from his bed. Defendant attempted to pick up Ray to put him in the burning room, and, apparently because Ray was too heavy, asked Richard to help him. Together, they put Ray in the bedroom. They also put Delinda into the bedroom. The door was closed behind them, and wired shut with a wire coat hanger.
After Ray determined that defendant and Richard had left, he was able to untie his hands. He hopped over to a window, raised it, leaned forward, and fell out the window into an air shaft between the building in which the apartment was located and an adjoining building. Ray estimated that he fell approximately six or eight feet. Delinda also managed to reach the window and fell on top of Ray. Ray untied his feet and then helped Delinda untie herself. Because of the height of the walls he was unable to escape from either side of the air shaft. Ray jumped up, grabbed the window ledge, and pulled himself back up into the burning room. He tried the door but was unable to open it. He climbed back into the air shaft.
Delinda and Ray screamed for help but were unable to attract anyone's attention. Ray recalled that there was a window which opened into the lounge. In this window there was an air conditioner surrounded by plasterboard. Ray climbed up to the window, kicked in the plasterboard, and pushed the air conditioner into the lounge. He fell into the lounge, which was full of smoke and very hot, and ran out the front door. Outside, he saw a small boy who lived upstairs and told him to tell his parents to call the fire department. Ray then ran to the back of the building to talk to Delinda. There was a small slit between the buildings through which one could see into the air shaft. Delinda told Ray that it was getting hard to breathe in the air shaft and that it was getting hot. Ray then ran back to the front of the building and tried to enter the basement through a door in the men's washroom. The door was locked and defendant and Richard had taken the keys. The firemen arrived, and Ray told them where Delinda was trapped. Ray lay down on the sidewalk and while lying there was approached by uniformed policemen. He spoke to them briefly and then was taken to the hospital in an ambulance.
At the hospital, the police showed Ray a group of approximately eight photographs. From these he selected the pictures of Richard Jackson and defendant. Ricky Jackson's picture was also included in this group of photos.
On cross-examination Ray denied ever owing defendant any money. He explained that the reason that Delinda was carrying so much money that night was that she was looking for an apartment. Defense counsel asked Ray whether he told the first officers he saw, or any other policemen, that when he answered the bell he was met by two brothers who drew guns at that time. Ray denied ever telling anyone this. Ray admitted telling police that after defendant and his brother entered the building he left for a short while to purchase cigarettes. On redirect examination it was brought out that Ray immediately told the police officers that it was defendant and his brother, Richard Jackson, that had perpetrated the crime.
Edward Barry, a fireman, testified that his truck arrived at the fire simultaneously with other units. As they arrived he saw what appeared to be a victim of the fire "screaming and yelling." This man (Ray) was covered with blood and hysterical. The man directed the firemen to the rear of the building where he said a woman was trapped. When Barry saw Delinda through the slit in the wall, she attempted to reach him. Mr. Barry described the unsuccessful efforts to save Delinda and the removal of her body from the air shaft. He described the condition of the building after the fire.
Officer Griffin, a Chicago policeman, testified that when he first saw Ray, he was "bloody from the chest area" and his clothes were disheveled. After talking with Ray he and his partner went immediately to the Jackson brothers' home but did not find either defendant or Richard Jackson at home. They found no evidence of items taken from the tavern. Officer Griffin and his partner returned to Ray's tavern. Officer Griffin found a door-lock assembly which had a coat hanger attached to it and some electrical cord. On cross-examination, Officer Griffin stated that no fingerprints were found at the tavern. Officer Griffin said that Ray had told him that $400 to $600 had been taken by his assailants. On redirect examination, Officer Griffin stated that Ray identified defendant and Richard Jackson as his assailants immediately when he arrived at the burning tavern.
Dr. Stein, the Cook County coroner, testified that Delinda Byrd's corpse had five stab wounds in the back which perforated both the right and left lungs. He stated that since there was smoke in the trachea, she was probably still alive for some time while the building was burning.
Ricky Jackson, the brother of defendant and Richard Jackson, testified that he had worked for Robert Ray. He stated that his duties included delivering marijuana for Ray. Ricky said that defendant had loaned Ray $5,000 sometime in April, May or June of 1975. On cross-examination, Ricky testified that he was ...