Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Sklodowski, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendants were tried before a single jury on charges of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1), armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2), attempted murder (Ill. Rev. Stat. 1981, ch. 38, par. 8-4), and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12-4). The jury was also given the instructions for voluntary manslaughter. Defendants were convicted on all charges, including voluntary manslaughter. Davis was sentenced to concurrent extended terms of 80 years for murder, 60 years for attempted murder, 60 years for armed robbery and 10 years for aggravated battery. Washington was sentenced to consecutive terms of 25 years for murder, 25 years for armed robbery and 5 years for aggravated battery. Spencer was sentenced to concurrent extended terms of 50 years for murder, 40 years for attempted murder and armed robbery and 10 years for aggravated battery.
Defendants raise the following issues in this appeal: (1) whether the evidence was sufficient to sustain Spencer's convictions on the basis of accountability; (2) whether the trial court erred in "merging" defendants' convictions for voluntary manslaughter into their convictions for murder; (3) whether the evidence was sufficient to sustain the convictions for armed robbery; (4) whether the defendants were properly convicted of attempted murder as to one victim and voluntary manslaughter as to the other victim; (5) whether the jury was properly instructed with regard to defendants' claim of self-defense; (6) whether the trial court erred in admitting evidence of defendants' prior criminal activity; (7) whether certain comments by the prosecutor deprived defendants of a fair trial; (8) whether the trial court erred in admitting certain weapons into evidence; (9) whether the statement of a victim to police was properly admitted into evidence as a spontaneous declaration; (10) whether Davis was denied the effective assistance of counsel; (11) whether the trial court considered improper evidence during defendants' sentencing hearing; (12) whether the trial court erred in imposing multiple extended-term sentences on Davis and Spencer; (13) whether defendants were convicted of multiple crimes based on the same act.
Prior to trial, defendants' motions to quash their arrests and to suppress evidence were denied.
At trial, Linda Dates testified: On May 6, 1981, at approximately 1:30 a.m. she was in her second floor apartment at 1440 South Kedzie in Chicago with her roommates, Charlie Cox and Lex Leaks, when the doorbell rang. At that time Dates was in the dining room watching television, Cox was in the same room sleeping on the sofa, and Leaks was in a rear bedroom. Dates looked out the window and saw three men standing near the front door of the apartment. She identified the three men as the defendants. *fn1 She had seen Davis and Spencer on prior occasions, but not Washington.
Leaks dropped a key down to the men at the door. The men came up to the apartment. They did not speak upon entering the apartment. Dates returned to the dining room and awakened Cox. Cox then went to the rear of the apartment where the visitors were. Dates went to a bedroom in the front part of the apartment. On her way, she saw Spencer and Washington, but did not notice Davis.
As Dates closed the door to the front bedroom, she heard two shots. She testified that she considered jumping out the window, but instead hid in the bedroom closet, covering herself with clothing. She then heard another shot followed by the sound of approaching footsteps. She heard the door to the bedroom being kicked open and then Spencer's voice say, "Come from under that bed, girl, before I shoot." She remained in the closet until the police arrived 10 minutes later. She testified that when the police arrived she was hysterical and could not recall what she had told the police. She denied telling the police that she had heard the shots "5 to 10" minutes after she entered the bedroom.
Charlie Cox testified: When Dates woke him and told him some men were in the apartment, he went to the back bedroom. He saw his roommate Leaks with Washington and Spencer. When Cox entered the bedroom, Spencer grabbed him from behind, and the two of them struggled. Spencer's two hands were encircled around Cox's stomach. As they tussled, Cox saw Davis point a .9-millimeter pistol at him. Washington then pulled an automatic pistol from his waist and also pointed it at Cox. There was no conversation. Davis and Washington began to shoot. Two or three shots were fired; Cox was hit in the elbow and stomach (near Spencer's encircling hands) and fell to the ground.
"Seconds" after falling, Cox felt the body of Leaks next to his. He heard footsteps moving toward the front of the house and then returning. Cox "felt" someone take from him the jewelry he was wearing, including a ring and some chains, and about $100. When he heard the men going down the apartment stairs, Cox stood up and telephoned someone from his family. He did not recall whether he called the police. Cox then briefly went upstairs to the third floor apartment. When the police arrived, Cox identified the three defendants as his assailants. While in the hospital a few days later, he also identified their pictures.
Dr. George London testified: He is a surgeon at Mt. Sinai Hospital and he operated on Charlie Cox. Cox had been shot twice; one bullet passed through his body on the left side of the abdomen, and the other lodged near his spine. Dr. London did not remove the latter bullet because of the possible dangers in such an operation.
Edward R. Donaghue, Jr., testified: He is a physician and forensic pathologist employed by the Cook County Medical Examiners Office. He performed the autopsy on Lex Leaks. Leaks was killed by a single bullet which entered his chest on the left side of the body, perforating the "main artery of the aorta" and the kidney and liver. The bullet had traveled "downward."
Chicago police officer Daniel McGovern testified: On the date in question he and his partner responded to the call of a man shot at 1440 South Kedzie. Upon arriving at the apartment two or three minutes after receiving the call, they found the body of Lex Leaks and heard Dates repeatedly yell to Leaks' brother, Kermit, who was then present, that Davis had shot Leaks. Cox told the officers that Davis and two other persons had shot him.
Following a discussion with Kermit Leaks, McGovern, his partner, Officer Trepac, and Kermit Leaks proceeded to an apartment at 3317 West Madison in Chicago. They requested a back-up unit, and when plainclothes officers Wolverton and Kurtovich arrived, the officers entered the apartment building. They saw Washington on a stairway landing aiming a .45 automatic at them. Washington turned and ran. The officers followed him and next saw him standing in a hallway with Spencer. Spencer was holding a .30-caliber sawed-off rifle and had a .9-millimeter pistol in his pocket. Spencer had been shot in both hands. Spencer and Washington surrendered and were arrested.
Chicago police officer Donald Wolverton testified: After Spencer and Washington were arrested, he went upstairs to the third floor staircase landing in the building. He there saw Davis, who dropped objects he was holding in his hand and ran into an apartment and closed the door behind him. Davis had dropped a white plastic bag which contained a .30-caliber carbine rifle, a loaded .9-millimeter pistol and a .38 revolver. Wolverton waited for assistance, and then entered the apartment into which Davis had fled. The apartment was empty. There was a stairway leading down to the apartment below. When Wolverton went down the stairs to the lower apartment, he found that Davis had been arrested there by other officers.
Police officer Larry Puzas testified: When he arrived at the apartment on West Madison, he saw Davis emerge from a second floor apartment with a shotgun. Puzas followed Davis back into the apartment and, at the officer's order, Davis dropped the shotgun and surrendered.
Officer Wolverton testified that after the three defendants were in custody he recovered from Washington a key on a chain which unlocked the front door to the apartment where the shootings had occurred. At the murder scene, a spent bullet and two cartridge casings were recovered from the rear bedroom. The bullet had been fired from the .9-millimeter pistol which was found in the plastic bag dropped by Davis. Human blood found at the murder scene was of an undetermined type. Blood found on the jacket worn by Washington was type B. Leaks' blood was type O.
Several pieces of jewelry were recovered from the defendants, including a ring and two chains. $114 in cash was found in Washington's possession. Dates and Cox identified the ring and one of the chains as belonging to Leaks; the other chain was Cox'.
Richard Chenow, a Chicago police officer employed as a firearms examiner, testified that the .9-millimeter bullet recovered from the crime scene had been fired from one of the two .9-millimeter pistols recovered from defendants. He stated that it was "absolutely not" possible that the bullet had been fired from the second .9-millimeter pistol.
After entering into stipulations that Davis was 44 years old, Spencer was 35 and Washington was 25, the State rested.
Washington was the only defendant who testified. He stated that he had been convicted of possession of heroin in 1975, and twice was convicted in 1977 of unlawful use of weapons. On the night of the shooting, he and Spencer had gone to Leaks' apartment to purchase cocaine with the $100 Washington carried. Washington had purchased cocaine in that apartment from Leaks on several previous occasions. Davis was not with them.
Washington was then carrying a .9-millimeter pistol. After Washington rang the apartment bell, Leaks dropped to him the key to the front door. Spencer, Washington and Leaks then went to the rear bedroom of the apartment. While Leaks weighed the cocaine, Washington complained that the scale was not "sitting right." After a brief argument about the weight of the cocaine, Cox entered the room and, according to Washington, asked Washington why he was arguing with Leaks. Cox then commenced arguing with Spencer about some money Spencer allegedly owed him.
Washington testified that Cox then pulled a pistol and, from a distance of five to six feet, shot Spencer once in each of his hands. When Cox turned toward Washington, Washington pulled out his own pistol and shot Cox twice. As Cox fell, Washington noticed Leaks turn away from the dresser and point a gun at him, whereupon Washington shot Leaks once. Washington testified that he fired his gun because he was afraid he would be shot; he had been held up and shot in the past.
Washington stated that the jewelry taken from him by the police was his own. So, also, the money recovered was his; he had brought it to the apartment to buy cocaine. He denied taking anything from Cox or Leaks. There was blood on Washington's jacket from Spencer's wounds. It was Spencer who suggested that they go to Davis' apartment on West Madison after the shootings. Washington took with him Leaks' and Cox's guns, a .38 and .45. At Davis' apartment Washington put all of the guns in a white plastic bag, except for the .45, which he kept. Washington admitted that when the police approached him he ran, but he denied ever pointing a gun at them. The parties then stipulated that Dates had told a police investigator that some 5 to 10 minutes elapsed between the time that the defendants entered the apartment to the time the shooting started and that she knew Davis from previous encounters in the neighborhood, but not from the crime scene.
Michael Williams testified for defendants: He was a pallbearer at Leaks' funeral. He had gone to Leaks' and Cox's apartment "almost on a daily basis" for the past two years to buy cocaine and marijuana. He stated that Cox's reputation in the neighborhood for being truthful and a peaceful and law-abiding citizen was not good. Cox had told Williams that Davis was not at the apartment on the night of the shooting; that Cox had shot Spencer and Washington had then shot Leaks and Cox. Williams stated that he currently had pending against him narcotics charges for possession of "cocaine and pills," and that his attorney for those charges was Spencer's attorney in the present case. He alleged that no one had told him what to say in court.
Barbara Olmond testified for defendants: She was Michael Williams' girl friend, and Spencer's attorney in the instant case also represented her in a pending drug charge. She was formerly Cox's girl friend and had lived with him at the apartment where the shootings occurred. Cox had sold marijuana and cocaine in the apartment when she lived there. Cox used cocaine daily and often carried a gun. She had once had him arrested for assaulting her. Cox's reputation in the neighborhood for being truthful and a peaceful and law-abiding citizen was bad. She also testified that she had seen Ms. Dates use cocaine.
The parties stipulated that at the time of trial Cox had pending against him charges for unlawful use of weapons and possession of a controlled substance.
In rebuttal, the parties stipulated that Washington had initially told police that he did not know how the blood had gotten on his jacket, and that he "did not know" the victims.
After closing argument, the jury found defendants guilty of murder, voluntary manslaughter, armed robbery, attempted murder and aggravated battery. The court "merged" the voluntary manslaughter convictions into the murder convictions. After a sentencing hearing, the court imposed the aforesaid sentences.
Defendant Spencer argues that his convictions, based on accountability, were not proved beyond a reasonable doubt in that all of the elements necessary to show accountability were not established. He correctly states that accountability requires proof of three elements: (1) that he solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of the offense; (2) that his participation took place before or during the offense; and (3) his participation was accompanied by the concurrent, specific intent to promote or facilitate commission of the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 5-2; People v. Tillman (1971), 130 Ill. App.2d 743, 265 N.E.2d 904.) Spencer contends that the first and third elements were not proved here.
• 1 With regard to the first element, defendant contends that because Washington testified that he alone shot the victims, and that the shooting was done in self-defense, Spencer could not have aided in the planning or commission of the crimes. We disagree. First, the jury was not required to accept Washington's version of the story but would consider all of the surrounding circumstances as well as the probability, or improbability, of his account. (People v. Olmos (1978), 67 Ill. App.3d 281, 384 N.E.2d 853.) Second, there was sufficient evidence, if believed, to establish that Spencer was not a mere by-stander. Cox testified that Spencer held him while Davis and Washington shot him. Ms. Dates testified that Spencer threatened to shoot her. Spencer did not try to stop the crimes or call the police. The jury could also consider, in this regard, the evidence that Spencer fled with the other defendants and then ran from, and pointed a gun at, the police. (People v. Bunting (1982), 104 Ill. App.3d 291, 432 N.E.2d 950.) The first element of accountability was thus proved.
With regard to the third element of accountability, proof of defendant's intent to promote or facilitate commission of the offense, we again find sufficient evidence in the record to support the jury's determination. The State's burden is met if the evidence demonstrates that the accused "shared the criminal intent of the principal or that there was a community of unlawful purpose." (People v. Ramirez (1968), 93 Ill. App.2d 404, 411, 236 N.E.2d 284.) Community of purpose or common design may be shown by the spontaneous and joint participation of a group in the commission of an offense. (People v. Hill (1977), 53 Ill. App.3d 280, 368 N.E.2d 714.)
"The requisite mental state for a crime may be proved by the acts and circumstances surrounding the defendant's conduct. * * * The fact that the criminal acts were not committed pursuant to a preconceived plan is not a defense if the evidence indicates involvement on the part of the accused in the spontaneous acts of the group. [Citation.] If the proof shows that the accused was present at the scene of the crime and did not disapprove or oppose it, the trier of fact may competently consider that conduct in connection with other circumstances and thereby reach the conclusion that the accused assented to the commission of the criminal act, lent ...