Appeal from the Circuit Court of Cook County; the Hon. James
M. Bailey, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendant, Richard Jackson, appeals his convictions for murder, attempted murder and armed robbery (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a), 8-4(a), 18-2(a)). After a jury trial, defendant was sentenced to concurrent terms of 60 years for murder, 60 years for armed robbery and 30 years for attempted murder. He raises the following issues for review: (1) whether the trial court committed reversible error when it denied his motion for severance; (2) whether the trial court's exclusion of jurors resulted in a jury which did not represent a fair cross section of the community and violated his sixth amendment right to a jury trial; (3) whether the State's closing argument deprived him of a fair trial; (4) whether the trial court erroneously permitted the State to introduce evidence of Robert Ray's prior out-of-court statements to enhance his credibility; (5) whether he was denied his sixth amendment right to call witnesses and due process of law when the trial judge prevented him from calling Officers Bartkiewicz and Ridges, and Dr. Schlenker; (6) whether the attempted murder conviction should be reversed because the jury was improperly instructed on the elements of murder; and (7) whether the trial court erred in imposing extended-term sentences for the offenses of murder, armed robbery and attempted murder.
We reverse and remand for a new trial.
Defendant Jackson and Dennis Emerson were jointly indicted and tried for the murder of Delinda Byrd and the attempted murder of Robert Ray. Before trial, defendant made a motion for severance. He argued that his defense was antagonistic to that of Emerson because the latter intended to present evidence that they were both at Ray's place of business shortly before the incident. The trial court denied the severance motion.
Edward Barry, a Chicago firefighter, testified that he received a call about a fire at 69th and Racine Avenue in Chicago, Illinois, around 4 a.m. on August 13, 1979. When he arrived at the scene, a man who was covered with blood told him that a woman was trapped in the rear of the building. She died in an air shaft before firemen could rescue her. The fire started in a rear apartment and traveled toward the front where a cocktail lounge was located.
Robert Ray testified that in August 1979 he operated a lounge, the Centaur, at 1154 West 69th Street, in Chicago, and lived in an apartment directly behind the lounge. Ray first became acquainted with Dennis Emerson, also known as Dennis Jackson, in 1975. He also knew Emerson's brothers, Richard Jackson and Ricky Jackson, who helped Ray at the lounge. Delinda Byrd was Ray's girlfriend.
The lounge was open on Sunday, August 12, 1979. Around noon, Emerson telephoned to say that he would come by. He called three or four times that day to say he would stop by but he did not arrive until after the lounge closed at 2 a.m. When Emerson arrived with Richard Jackson, they walked through the lounge to the kitchen of the apartment. While they were conversing, Byrd arrived. Emerson drew a gun and told Byrd and Ray to lie on the floor. They obeyed, lying face down. Emerson tied their hands with electrical cord while Jackson aimed a gun at them. Emerson asked Ray how to get in to the cash register and where he kept his guns. Ray heard Emerson open the cash register and saw him with the guns. Emerson searched Ray and Byrd and took money from her. Emerson hit Ray in his back. Jackson gave Emerson "a shears" and the latter stabbed Ray and Byrd with it. Emerson went into Ray's bedroom. After he came out, Ray smelled smoke and saw his bed on fire. Emerson and Jackson threw Ray and Byrd into the bedroom and closed the door.
Ray loosened his hands, opened the window, and fell into the air shaft; Byrd followed. Ray broke through a window into the lounge and ran out the front door. He asked someone to call the fire department. He was hospitalized for nine days with a collapsed and punctured lung and he suffered from smoke inhalation. In a photographic lineup, Ray identified Emerson and Jackson.
On cross-examination, Ray stated that he never borrowed money from Emerson. He admitted that Emerson's sister once asked him for money but he did not give her any.
Robert Stein, chief medical examiner of Cook County, performed an autopsy on Delinda Byrd. Her death had been caused by stab wounds and by burns over 90% of her body.
John Ridges, a Chicago police sergeant, investigated the Byrd homicide. On August 13, 1979, Ridges showed a photographic lineup to Ray who identified Jackson and Emerson. On August 18, 1979, he arrested Jackson at his mother's residence.
James Griffin, a Chicago policeman, was on duty on August 13, 1979, and arrived at the lounge at about 4:16 a.m. He talked with Robert Ray and then went to an address on South Sangamon Avenue, where Jackson's mother lived, and searched the premises. The suspects were not there. Griffin returned to the lounge and recovered pieces of electrical cord.
The prosecution rested and defendant called Daniel McWeeny, a Chicago policeman, as his only witness. McWeeny investigated the Byrd homicide. He spoke to Ray at the hospital on August 13, 1979. He testified that no money and no weapons were recovered in the case. The medical examiner told McWeeny that the cause of Byrd's death was a knife wound that penetrated the lungs.
Defendant rested and Emerson called Ricky Jackson as a witness. Ricky testified that Emerson had loaned $5,000 to Ray in 1975 so that the latter could furnish a lounge. Ricky assisted Ray at the lounge and worked for him until April or June of 1979. Ricky claimed that he bought marijuana from Ray and also sold it for him. Before Emerson was released from jail, Ricky asked Ray about the $5,000. On August 12-13, 1979, Emerson and Richard Jackson lived with their mother in a house on Sangamon Avenue.
Dennis Emerson testified in his own defense and admitted to prior convictions. He originally met Ray because he wanted to purchase marijuana from him. He loaned $5,000 to Ray and asked his sister and Ricky, his brother, to get the money. A week after his release from prison on July 24, 1979, Emerson visited Ray at the lounge to ask about the money. He denied committing any of the crimes with which he was charged. On August 12, 1979, his brother Richard had a cast on his arm. He, Richard and Ricky spent the day at their mother's house.
At the close of the trial, the jury found Emerson guilty of murder, attempted murder, armed robbery and aggravated arson, and Jackson guilty of murder, attempted murder and armed robbery and not guilty of aggravated arson.
At the close of the death penalty hearing, the jury recommended a death penalty for Emerson but not for Jackson. Jackson was sentenced to 60 years for murder, 60 years for armed robbery and 30 years for attempted murder, the sentences to run concurrently. Defendant Jackson appeals.
The first issue raised by defendant is whether the trial court erred in denying his motion for a severance. In his brief, defendant merely states that his defense was antagonistic to that of his co-defendant Emerson.
• 1 Defendant's argument has no merit. Defendants jointly indicted are to be jointly tried and separate trials are required only when the defenses are so antagonistic that a fair trial can be achieved only through severance. (People v. Dorsey (1980), 88 Ill. App.3d 712, 717, 410 N.E.2d 1132, 1135.) In the instant case, there was no showing before trial that Jackson's defense would be antagonistic to that of Emerson, and at trial Emerson testified that he and Jackson were at their mother's house when the crime was committed. We conclude that the trial court did not err in denying defendant's motion for a severance.
Next, defendant argues that the trial court's exclusion of jurors resulted in a jury which did not represent a fair cross section of the community and violated his sixth amendment right to a fair trial. The jury did not represent a fair cross section because persons who felt they could not impose the death penalty were excluded. Defendant contends that such persons are an identifiable and a sizeable portion of the community and their exclusion denied his right to a fair, representative jury. During voir dire, the trial court asked ...