Appeal from the Circuit Court of Sangamon County; the Hon.
Simon L. Friedman, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant, Isaiah Green, together with John Pickens and Dennis Scott, were charged by information in the circuit court of Sangamon County with the offenses of murder and armed robbery in violation of sections 9-1(a)(1), 9-1(a)(2), 9-1(a)(3), and 18-2(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), 9-1(a)(2), 9-1(a)(3), 18-2(a).) Defendant's case was severed from the others, and he was tried twice. The first trial ended with a hung jury and consequent mistrial. On the second trial, the jury returned general verdicts of guilty of murder and armed robbery. The trial court sentenced defendant to 15 years' imprisonment for armed robbery and to an extended term of 60 years' imprisonment for murder, the sentences to run concurrently.
On appeal defendant raises a variety of issues: (1) reasonable doubt, (2) double jeopardy, (3) evidentiary error in admitting prior consistent statements of Pickens and Scott, (4) plain error in the prosecutor's closing argument, (5) excessive sentence, and (6) improperly constituted jury.
Since the question of reasonable doubt has been raised, some recital of the evidence produced at the second trial is necessary. Further facts will be developed as needed for an understanding of the other issues in connection with those issues.
The victim was Fritz Havrilka, the owner and operator of Fritz's Wagon Wheel, a restaurant in Springfield. Pickens was a former employee of that establishment. At approximately 12:50 a.m. on December 12, 1982, Havrilka and the head waitress closed the restaurant and Havrilka got into his automobile to drive to his home in New Berlin, which is located about 8 to 10 miles west of Springfield. As was his custom, Havrilka took the night's proceeds from the restaurant with him in a paper bag.
Shortly before 1 a.m. on December 12, 1982, Kay Skerston, Havrilka's stepdaughter, and Mike Reichart, her boyfriend, were present in the kitchen of the Havrilka residence. Reichart and Skerston heard dogs barking outside. After the dogs had been barking for about five minutes, they heard five or six gunshots. They looked out of the window and saw a car sitting in the driveway. Its lights were off and the engine was running. Looking down the road, Skerston saw the taillights of a car driving away. The taillights were horizontal and appeared to belong to a large car. Skerston woke up her mother. Mrs. Havrilka called the sheriff's department. When she made the phone call she looked at the clock. It was 1:10 a.m.
When police officers arrived at the scene, they found Havrilka's body lying face-down in the driveway. An examination of the body showed that Havrilka had been shot five times with a .22-caliber weapon. The cause of death was a shot to the head which had probably been fired from a distance of six to eight inches. Four shots were fired into the body. Expert testimony established that the wounds were consistent with a factual setting in which Havrilka was shot once in the face, fell to the ground, and was shot four more times as the assailant stood over him.
Four .22-caliber casings were recovered at the crime scene. All four cartridge cases exhibited extractor and ejector marks, used in semiautomatic or automatic pistols or any type of weapon that has only one chamber, such as a rifle. An examination of the bullets recovered from Havrilka's body established that the murder weapon could have been a Colt firearm.
Dennis Scott, an original co-defendant, testified that on December 11, 1982, he spent the day with defendant and John Pickens. At about 8:30 p.m., they helped a friend, James Willie, set up equipment for a party in his apartment at the John Hay Homes in Springfield. At about 11:30 p.m., Scott, Pickens, and defendant left the party with Ruthie Scott. They drove around in Scott's automobile until they ran out of gasoline. They went to defendant's mother's house at about 12. Mrs. Green lent Pickens three dollars to buy gasoline. The four drove to Tommy Harris' house. Defendant went inside for about five minutes while the others waited in the car. Scott dropped Ruthie off and then drove with Pickens and defendant to Fritz's Wagon Wheel to pick up Pickens' paycheck. He was dismissed for failing to report for work.
Scott continued that he, Pickens, and defendant arrived at the Wagon Wheel just as Havrilka was pulling out. They followed. When Havrilka got outside of town, Scott began honking his horn and blinking the lights of the car. He pulled alongside of Havrilka, and Pickens asked Havrilka if he could have his job back. Havrilka told Pickens to come and see him on Monday morning. Pickens told Scott to continue to follow Havrilka. Scott followed Havrilka to his home and pulled into the driveway behind him.
Havrilka got out of his car and walked back to the passenger's side of Scott's car. Pickens grabbed Havrilka by his coat collar and held him as Green drew a gun and climbed out of the back seat. Scott backed out of the driveway, turned his car around, and moved 50 feet down the roadway. Meanwhile, Pickens, Havrilka, and defendant were engaged in a struggle next to Havrilka's car. Defendant climbed into the car and emerged with a paper sack. Defendant and Pickens walked away. Havrilka followed, yelling, "Give me back my money." Defendant turned and shot Havrilka once in the face. Havrilka fell to the ground; defendant shot four more rounds into the body.
Continuing, Scott testified that Pickens and defendant re-entered the car and the trio drove away. Scott and Pickens asked defendant why he had shot Havrilka. Defendant responded that Havrilka knew Pickens and could identify him. Scott drove back into Springfield and stopped at a gas station. They filled the car tank with gas, using $21 of the money from the paper sack. They then returned to the John Hay Homes. Sometime between 2 and 2:30 a.m., after dividing the proceeds of the robbery, they returned to the party at James Willie's house, and stayed for about 2 1/2 hours when, at defendant's insistence, they decided to drive to St. Louis.
In St. Louis, Scott sold his car to defendant. Defendant had paid Scott $150 on the car in August; while in St. Louis he paid him another $150 to close the deal. Scott and Pickens returned from St. Louis three or four days later by bus.
On cross-examination, Scott acknowledged that he owned two other cars besides the Cadillac which he drove on the night of the murder. Each of the other cars, a 1976 Chevrolet and a 1978 Buick Regal, had horizontal taillights, four to five inches wide. The Cadillac had vertical taillights which were only about two inches wide.
John Pickens, the other original co-defendant, testified that in November and December 1982, he worked at the Wagon Wheel restaurant. On more than one occasion, he, Scott, and defendant had discussed plans to rob the restaurant. The last time they discussed such plans was on December 11 at about 6:30 p.m. According to the plan, Pickens was to drive; Scott and defendant were to go inside and rob Havrilka as he was closing the Wagon Wheel.
On the evening of December 11, Pickens, Scott, and defendant were present at James Willie's while preparations were made for a party. Scott, Pickens, and defendant left the party with Ruthie Scott at about 10:05 p.m. They drove around in Scott's Cadillac, Scott driving, and stopped by Tommy Harris' house at a little after 12. Defendant went inside for about two or three minutes while the rest of the party waited in the car. After dropping Ruthie Scott off, they drove to the Wagon Wheel restaurant.
Pickens continued: they arrived at the Wagon Wheel restaurant at about 12:30 or 12:40 a.m., and Havrilka was pulling out just as they arrived. They followed Havrilka to his home and pulled into the driveway behind him.
Havrilka walked back to the passenger's side of Scott's car. Pickens asked Havrilka if he could have his job back. Havrilka told him to come in on Monday morning.
Pickens, further testifying, stated that defendant stuck a gun out the window and told Havrilka that it was a "stick-up." Havrilka ran back towards his car. Pickens opened the car door and let defendant out of the back seat. Defendant followed Havrilka and struggled with him next to Havrilka's car. Defendant took a paper bag out of Havrilka's car. As defendant and Pickens walked away, Pickens slightly ahead of defendant, Pickens heard a shot. He turned around as Havrilka was falling to the ground. Defendant fired several more shots into Havrilka's body. Pickens asked defendant why he had shot Havrilka. Defendant responded, "The man knew me." Pickens claimed that he never touched Havrilka during the robbery.
Pickens and defendant re-entered Scott's car. The car was parked at the end of the driveway, a little over 15 feet away from Havrilka's car. They drove back into town, and, after filling the car with gasoline, they split up the proceeds of the robbery, about $1,700. Scott and Pickens each received about $450 to $500. Defendant received more because he shot Havrilka. They went by Tommy Harris' house so that defendant could return the pistol which he had borrowed. Scott and Pickens each gave defendant $50 to pay Harris for the use of the weapon.
Pickens' further testimony was that he, Scott, and defendant returned to the party at about 1:50 or 2 a.m. A dance contest was starting just as they returned. The winner of the contest was awarded a fifth of Yukon Jack Whiskey, and defendant bought the bottle for $10. He, Scott, and defendant left the party at about 2:30 or 3 a.m. to drive to St. Louis.
In St. Louis, defendant bought Scott's Cadillac with money which he won as the three of them gambled together. Scott and Pickens retuned from St. Louis two days later by bus.
Vincent Cooper testified that he was at a party at James Willie's on the morning of December 12, 1982. Cooper testified that Pickens told him that Pickens and defendant had robbed a man. Pickens also told him that defendant had killed the man. Cooper testified that he did not see John Pickens at James Willie's party until 1:45 a.m. on December 12, 1982. Cooper shot dice with defendant at the party at about 3 a.m. and won $15 from him.
Tommy Harris testified that in December 1982 he lived at the John Hay Homes. Sometime in the latter part of November or first part of December 1982, Harris loaned defendant a .357 Magnum. Defendant never returned the gun. Harris eventually retrieved the weapon from defendant's cousin or uncle. Harris stated that on the night James Willie gave a party, defendant came to the Metro, a tavern in Springfield, and asked to borrow the Magnum again. Harris refused to loan defendant the Magnum but told him he could loan him a .22-caliber Colt automatic pistol. Defendant agreed and went to Harris' home to get the weapon. When defendant returned the gun, he paid Harris $100. Harris guessed defendant returned the gun two or three days later and did not think it was returned the same night he loaned it. On cross-examination, he admitted testifying at defendant's first trial that he could not recall the specific date in December when he loaned defendant the gun.
Defendant, testifying on his own behalf, stated that he was not involved in either the robbery or the murder of Fritz Havrilka. He testified that he arrived at James Willie's party at about 8:30 p.m. He went home at about 10 or 10:30 p.m. to change clothes and check on his son and was not gone more than about 20 minutes. There was a dance contest held at the party. Shortly before it began, defendant attempted to go to the liquor store. Sam Bailey was to drive Robert Joiner's car. Joiner did not want defendant to drive the car since he did not have a license. They did not go because Sam Bailey realized that it was too late to go. The liquor store was closed. They returned to the party and the dance contest shortly thereafter. Defendant testified that the winner of the dance contest, Salina Cave, sold him a fifth of whiskey which she received as a prize from the contest. At about 2:30 or 3 a.m., defendant left the party. He, Pickens, and Scott drove together to East St. Louis. The three apparently continued their drive to St. Louis because defendant claimed that he gambled with Scott and Pickens there. With his winnings, he purchased Scott's Cadillac. Defendant attested that Scott and Pickens were with him when he borrowed a gun from Tommy Harris sometime in December. Defendant persuaded Harris to loan him the weapon for protection because several men were threatening him with a gun.
On cross-examination, defendant admitted that he testified at his first trial that he went to sleep in the back seat of Scott's car as soon as they left Springfield for St. Louis. He also acknowledged testifying previously that he borrowed the gun from Harris because someone had threatened him with a knife.
Salina Cave testified that the dance contest at James Willie's party commenced at about 1:30 a.m. on December 12 and lasted approximately 30 minutes. She did not see defendant, Pickens, and Scott until after the dance contest ended. Cave received a bottle of Yukon Jack for winning the dance contest. Defendant offered to buy the liquor from her for $8.
Sam Bailey testified on behalf of defendant. Bailey was the doorman at James Willie's party. At about 1:15, defendant asked Bailey to take him to the liquor store. They were to go in Robert Joiner's car. Robert Joiner testified that he lent his car keys to defendant. Bailey testified that he and defendant walked out to Robert Joiner's car, which was parked about 15 feet from the door to the party. Bailey looked at his watch and told defendant that there was no point in going to the liquor store because it was closed. Bailey testified that he and defendant returned to the party just before the dance contest started.
Defendant's sister, Diane Green, testified on rebuttal that her sister reported defendant came home at midnight on December 11, 1982, to borrow $3 from his mother.
Ruthie Scott testified on rebuttal that defendant transported her to her cousin's house in Dennis Scott's Cadillac at about 10:45 p.m. on December 11, 1982. Defendant stopped at his mother's house for about 15 minutes to get some money for gasoline. Scott, Pickens, and defendant left her at her mother's house between midnight and 12:30 a.m. before they purchased gasoline.
Rebuttal witness Detective Tom Murphy testified that on December 22, 1982, defendant informed him that on the night of the party he walked to Alby's Liquors by himself but returned because it was closed.
That was substantially all the evidence in the case. Defendant's chief argument concerning reasonable doubt centers on the testimony of Scott and Pickens, his co-defendants. He notes (1) that they were substantially rewarded for their testimony, and (2) that their stories are inconsistent and unbelievable.
The record does demonstrate that each of them entered pleas of guilty to the offense of armed robbery and each received a prison sentence of 15 years therefor. Murder charges against them were dismissed. Defendant contrasts this with his 15-year term for armed robbery and 60-year term for murder. However, the jury was thoroughly informed of the lenity which had been extended to Scott and Pickens and was instructed as to how to deal ...