Appeal from the Circuit Court of Sangamon County; the Hon. Ben
K. Miller, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 9, 1984.
Robert Feagans appeals from his convictions and sentencing, following a jury trial, for murder and armed robbery. He received a six-year term of imprisonment on the armed robbery conviction and a 60-year term on the murder conviction. On appeal, he asserts as grounds for reversal (1) that the trial court erred in refusing the tendered instruction of the defense on voluntary intoxication and (2) that it also erred in admitting into evidence certain allegedly prejudicial color slides of the victim's body. The defense also argues that the armed robbery conviction must be vacated as it is a lesser included offense of the murder conviction. Concerning sentencing, the only issues raised focus on whether the court abused its discretion in sentencing Feagans to an extended term on the murder count.
The record reveals the following facts. On March 18, 1982, 42-year-old Charles Cummings, an employee of Precision Products in Springfield, cashed his payroll check at a grocery store there. He then stopped for a couple of drinks at a bar. Later in the evening he went to Pete and Bud's Lounge for more drinks. He sat at the bar. Shortly after Cummings arrived, the defendant Robert Feagans, his brother Leslie, and David Landers entered the tavern. The three played pool and drank at Pete and Bud's. After a while, either the defendant or Landers struck up a conversation with Cummings, who eventually bought several "rounds" of drinks for the three men. When they decided to go to another tavern, Cummings accompanied them. At the next tavern, the Porthole, they again played pool and Cummings bought more beer. When a disturbance began, they left. They may have left either in one or two vehicles, as the record is unclear on this point.
In any event, by the time the four arrived at the next tavern, the Runway Tavern, they were all riding in Landers' auto and were all "pretty well" intoxicated, according to the bartender there. Cummings had to be held up by two of the men. When the bartender refused to serve them, Leslie Feagans bought a six-pack and they went to the car. According to a statement given by defendant to police at the end of April, which was admitted into evidence during the State's case, it was after they left the Runway Tavern that Landers suggested that they "roll" (rob) Cummings. The defendant stated that he was against the idea, but Landers indicated that Cummings would not be hurt and would be released after the robbery. They continued to ride around in Landers' auto, with the defendant and Cummings in the back seat and Landers, with Leslie Feagans, in the front seat. They continued driving and drinking for about an hour. Landers drove north on Route 29 out of Springfield, and then turned around and headed back into town.
During the return ride, Landers again stated his desire to rob Cummings. The defendant, in his statement, said that he told Landers to do what he wanted, but he and his brother wouldn't help at all. Landers then threatened them. At this point, Landers gave Leslie Feagans a stick, from under the seat, and told Leslie to hit Cummings. When Leslie said no, Landers passed the stick to the defendant, who also refused to hit Cummings. Landers then told Cummings to remove his clothing, which he did. Landers went through the pockets of Cummings' clothing, finding approximately $3. Cummings put his clothes back on. At some point hereabouts, Landers threatened to kill Cummings, because he could "identify them." The defendant told police that he protested, telling Landers to keep him and his brother out of it. Landers, according to the defendant, threatened them if they wouldn't help. Leslie Feagans then stuck a pipe in Cummings' mouth and the defendant tore up his shirt and tied Cummings' hands and feet. These actions were taken, according to defendant, in response to Landers' threats and direction. The defendant stated that he tried to make his knots loose, so that Cummings could walk home.
About one-half mile before the Route 29 bridge over the Sangamon River, Landers indicated that he was going to throw Cummings into the river. The victim was nervous and well intoxicated. No attempt was made by him to defend himself. Landers threatened the defendant Robert Feagans against making any attempt to help Cummings. At this time Leslie Feagans had almost passed out, from his intoxication. At the bridge, Landers pulled over and stopped the car, with the passenger side toward the water. He opened the door and pulled Cummings out. The defendant, in his statement to police, stated that he wanted to help Cummings, but was afraid of Landers. Landers picked up Cummings, hit him on the back of his head and then threw him over the bridge railing into the river. The defendant stated that while this sobered him up quickly, it was too late for him to take any action.
On the return ride to Springfield, Landers disposed of the remainder of Cummings' clothing and dropped the defendant and his brother at Robert Feagans' truck. They then drove to his brother's home and spent the night.
Other State's evidence supplemented, and at times contradicted, the defendant's statement to police concerning the robbery and murder. Larry Chronister, who lived with the defendant's ex-wife in the same trailer park as defendant, testified that the defendant visited his ex-wife on March 19 or 20, asking her to cut and dye his hair, so he wouldn't be recognized. In conversations with Chronister on the 20th of March the defendant asked how long a weighted body would take to surface and float in the river. According to Chronister, during the conversation the defendant admitted that he had killed someone, saying he had thrown someone off a bridge into the river a couple of days earlier. Also testifying was Leslie Feagans' wife, Donna, who stated that the defendant told Leslie to shut up on March 19, when he was talking with her. The defendant also told her that he tied a man's hands and that Landers had thrown him over, without further elaboration. He told her it didn't bother him.
In his statement to police, the defendant stated that Landers threatened to kill him and his brother if they said anything about the murder. Authorities began searching the river for Cummings in late April, with no initial success. On April 29, 1982, the defendant voluntarily accompanied detectives to the station for questioning. There he gave them an oral statement and the written one.
Wayne Franklin, a boyfriend of the defendant's sister, also testified to conversations he had with the defendant around the time of the killing. During the conversations the defendant admitted the events of the night of the murder, indicating at first that he was an innocent bystander, with Leslie and Landers the participants. Later he admitted to Franklin that Leslie had passed out and he had tied Cummings up, while both he and Landers had thrown Cummings into the river.
Cummings' body was found on May 2, 1982, near the Route 29 Sangamon River Bridge. The body was photographed where it was found by two fishermen. The body still had trousers on and one sock. A pants pocket was turned out, and strips of cloth tied to the neck, right ankle and left wrist. The defendant was arrested on May 2, 1982, and charged with armed robbery, murder and felony murder.
The only other State's witness at trial was the pathologist who performed the autopsy. He stated that he found three $20 bills in the sock on the body. The body was in a state of severe decomposition. There were no external wounds found and no evidence of trauma. A blood sample from the lungs indicated an alcohol content of .29, and the pathologist could not specify the content at the time of the death. The pathologist testified that he removed the ties from the body. Photographic evidence of the body, being colored slides, was admitted over defense objection that it was highly inflammatory and prejudicial, with little probative value.
The only witness for the defense was the defendant himself. Pertinent additional information set forth in his testimony included the fact that he had not met Landers before that fateful night, Landers having just gotten out of prison. The defendant stated that he could not recall who took the money from Cummings, but testified that he did not receive any of it. He also testified, consistent with his statement to the police, that he attempted to convince Landers to release Cummings unharmed, but was unsuccessful. Although at first stating that he didn't realize Landers' intentions, on cross-examination he admitted that he knew something was going to happen and someone might be killed. He repeated that Landers had threatened both him and his brother if they did not help him and follow his directions. He admitted tying Cummings' hands and feet, but stated that he made the knots loose. He further stated that he did not get out of the car at the bridge and Landers had tossed Cummings over the side. In most ...