Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Sklodowski, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 9, 1984.
Defendants Santiago Laboy-Rivera (Rivera) and Juan Andino (Andino) were tried simultaneously before a jury and found guilty of murder, armed robbery and armed violence. Rivera was sentenced to concurrent terms of 50 years for three counts of murder, three counts of armed robbery and armed violence. Andino was sentenced to concurrent terms of 55 years for each conviction.
On appeal, Rivera contends that (1) the trial court erred in denying his motion for severance, and (2) his sentence for felony murder is excessive due to his passive participation in the crime and because it was based on factors inherent in any felony murder. Andino contends that (1) his convictions should be reversed and the cause remanded for a new fitness examination because the psychiatric report as to his competency to stand trial failed to comply with statutory requirements; (2) the improper exclusion of two veniremen because they were opposed to the imposition of the death penalty resulted in a jury which was unrepresentative of the community and which was inherently biased and prone to convict; and (3) his extended-term sentence is excessive because the offense was not accompanied by brutal behavior indicative of wanton cruelty.
Defendants jointly contend that (1) their concurrent extended-term sentences for armed robbery are improper, and (2) their convictions for armed violence and two counts of murder must be vacated.
We affirm in part, reverse in part.
The charges arose from the fatal stabbing of William Klein on July 20, 1981. Neither defendant contends that his guilt was not established. Therefore, we set forth only the facts relevant to our disposition of the issues presented.
Jose Lessale testified that he was sleeping in his basement apartment when he was awakened by noises at 2:30 a.m. on July 20, 1981. He looked out the window and saw Andino standing in front of Klein with a knife in his hand. Lessale further testified that he saw Andino stab Klein repeatedly while Klein was being restrained by Rivera. He immediately called the police. Afterwards, he noticed Andino wipe the blood from his knife and put it in his pocket. Both defendants fled from the scene.
The following day, Lessale saw Rivera walking along Sheridan Road and phoned police. Rivera was taken into custody, where he was interviewed by Detective Robert Elmore. At trial, Elmore testified as to the contents of Rivera's post-arrest statement. According to Elmore, Rivera stated that he and Andino were walking down the street when they saw Klein sitting on the stoop of an apartment building drinking beer. Andino asked him for a beer. Andino grabbed Klein and demanded his money. While Rivera held Klein, Andino searched his pockets and removed his money. When Klein began to struggle, Andino stabbed him. Both he and Rivera ran from the scene and split the proceeds. Twenty dollars was recovered from Rivera.
Andino was also taken into custody, where he was questioned by Detective Robert O'Leary. O'Leary testified that during the interview Andino revealed that he and Rivera spotted Klein and discussed robbing him. As they approached him, Rivera walked behind Klein and put him into a headlock. Andino asked Klein for his money, searched his pockets and removed his money — about $80. According to O'Leary, Andino admitted stabbing Klein several times. Thereafter, Rivera took Klein's watch and both defendants ran from the scene.
Rivera testified on his own behalf at trial. On July 20, 1981, he and Andino were walking down Sheridan Road when they saw Klein sitting in front of an apartment building. Andino approached Klein and asked him, "Where is the money you owe me?" An argument ensued. Rivera admitted that he tried to restrain Klein but asserted that he was unable to do so. Klein lunged toward Andino. Rivera saw a knife in Andino's hand and tried unsuccessfully to push Klein away. Andino stabbed Klein. After he and Andino ran from the scene, Andino suggested that they go to his house and split the money.
Andino also testified that on July 19, 1981, he met Rivera at Sheridan and Cuyler at about 1:30 p.m. They drank beer, smoked marijuana and took some LSD. Andino testified that he was still under the influence of the drugs several hours later when Rivera suggested that they take Klein's money. The two men went over to Klein, and Rivera grabbed him from behind and put him into a headlock. Andino went through his pockets and took his money. When Andino started walking away, Klein grabbed him. Andino stabbed him and Klein fell to the ground with blood all over him. Andino further testified that he did not intend to stab or kill Klein. In fact, he was unaware at the time that he had actually stabbed Klein. He also stated he saw Rivera take a watch from Klein, who was lying on the ground. Later, Andino gave Rivera half the money he had taken.
Following closing argument and instructions to the jury, both defendants were found guilty of murder, armed robbery and armed violence. After a death penalty hearing with respect to Andino, the jury was unable to unanimously agree that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Both defendants were thereafter sentenced to terms in the penitentiary.
• 1 First, Rivera contends that the trial court improperly denied his motion for severance. Prior to trial, Rivera moved for a severance on the grounds that Andino's post-arrest statement implicated him. He also alleged that his defense would be antagonistic to that of his co-defendant's. This motion was denied. Rivera further contends that he was prejudiced by the trial court's refusal to sever the case from Andino's when the State indicated that it intended to seek the death penalty against Andino. However, at the hearing on the motion, the State argued that Rivera might be eligible for the ...