Appeal from the Circuit Court of Cook County; the Hon. Howard
M. Miller, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Carl Sanders was found guilty of two counts of attempted murder, of armed robbery, home invasion, and murder (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 18-2, 12-11 and 9-1(a), respectively), and sentenced to concurrent prison terms of 30 years for attempted murder, armed robbery and home invasion, and 40 years for murder. On appeal, defendant contends that: (1) the State failed to prove that either he or one for whom he was accountable entered the victim's home without authority; (2) the State failed to prove that either he or one for whom he was accountable took the victims' missing automobile; (3) the jury was improperly instructed on the charge of attempted murder; (4) the trial court's refusal to allow him to converse with defense counsel during a lunch recess denied defendant effective assistance of counsel; and (5) in the event the convictions for home invasion and armed robbery are reversed, resentencing is necessary.
Defendant was charged under the theory of accountability for offenses committed against Barbara McGee, Jessie McGee and Joseph Kneeland during the early morning hours of March 12, 1981. At trial, Barbara McGee testified that, approximately 2:30 a.m. on the morning in question, she was awakened by the front door bell of her home at 8343 South Woods, Chicago. She answered the door and admitted her son-in-law, Gregory Macon, into the house. They talked for a few minutes, after which Mrs. McGee permitted Macon to spend the night. Prior to that evening, Macon's wife and the four Macon children had been living with the McGees for approximately four months, during which time Macon would also sleep there on an "on and off" basis.
After returning to her bedroom, which she shared with her husband, Jessie, Mrs. McGee was again awakened by Macon. He told her that he was having headaches and needed some medication. Jessie McGee gave Macon a couple of aspirin and he left, but returned a short time later to ask for some more. A few minutes later, Mrs. McGee was again awakened when Macon pushed open the bedroom door, turned on the light, and entered the room accompanied by Anthony Strong, who was armed with a gun. Strong kept the gun pointed at the McGees while he and Macon demanded money. Through her bedroom doorway, Mrs. McGee could see defendant and Lorenzo Strong in the kitchen and another unidentified male on the back porch. Mrs. McGee had known defendant, Macon's nephew, for approximately 10 years.
Jessie McGee then walked into the dining room, took his wallet out of the buffet and gave it to Macon and Strong. When Mrs. McGee tried to get out of bed, Macon told her to sit down and proceeded to tie her hands and feet with a rope. Jessie McGee told Macon that there was more money downstairs in a pair of beige shoes. When none of the intruders could find the money downstairs, they sent Joseph Kneeland down to look for it. Meanwhile, Macon carried Mrs. McGee to the middle bedroom and raped her. When the rope came loose, he retied her, raped her again, and left. She could hear the others, including defendant, hollering about the money and walking back and forth. Macon eventually returned to the bedroom, threw a telephone cord around Mrs. McGee's neck and choked her until she lost consciousness. When she regained consciousness, she heard her husband calling her name from a distance, after which she heard someone enter the room, felt a thump on her head, and again lost consciousness. When she regained consciousness, Mrs. McGee called to her son, who came into the bedroom, cut her loose, and then ran next door to get help. She again lost consciousness and did not regain it until the police were there and she was being put into an ambulance. At the hospital, Mrs. McGee learned that in addition to the neck wounds, she had also received two gunshot wounds to the back of her head.
Mrs. McGee further testified that at the time of the incident she owned a yellow and brown 1976 Cadillac. When she went to bed on the evening of March 11, the car was parked in front of her house. After the incident, the car, a color television, tape recorder, jewelry and wedding rings were missing.
Next, Joseph Kneeland, Barbara McGee's son, testified that when he arrived home from school approximately 3:15 p.m. on March 11, 1981, Macon, Lorenzo Strong and defendant were talking to his father. He heard his father tell them that he wanted them to leave, which they did. Kneeland had known both Macon and defendant for about 12 years and knew that defendant was Macon's nephew. Kneeland further stated that early the next morning he was awakened by Anthony Strong, who was standing next to him with a gun pointed at him. Strong told Kneeland to put the blanket over his head and to walk out into the hallway. While standing in the hallway, he heard his mother ask Macon what was wrong, heard his father tell the intruders to check his shoes downstairs, and heard footsteps go down and back up the basement stairs, followed by defendant's voice saying that there were no beige shoes and no money downstairs. The intruders then told Kneeland to go downstairs and look for the shoes. When he took the blanket off his head, he saw Macon, Anthony Strong and defendant, who was standing next to the buffet in the dining room with something silver in his hand. When Kneeland returned from downstairs without having found any money, he saw Lorenzo Strong and defendant in the kitchen. He and his father were told to stand near the entrance to the basement. At that time, defendant was standing in the basement doorway with a gun pointed at Kneeland, holding a newspaper to obscure part of his face. However, Kneeland recognized his voice. Macon then joined Kneeland and his father and told them to go downstairs. Kneeland went first, followed by his father. Macon stood at the top of the stairs, holding a gun and carrying a pillow under his arm. Suddenly Kneeland heard a "pow" sound, turned around, and saw his father falling down the stairs. When he started to run, he was hit by a bullet in the shoulder and fell. Macon then walked over to where Kneeland was lying, shot him behind the right ear, and went back upstairs.
When Kneeland's father began gurgling his wife's name, Macon came back downstairs. Kneeland heard another "pow," after which his father was silent. Shortly thereafter, all the upstairs footsteps ceased and Kneeland went upstairs to look for his mother. When he went to the living room and looked outside for the car, he noticed that it was gone. As he was going back toward the basement, he heard his mother's voice coming from his bedroom, and found her in there, tied up and with cuts around her neck. After carrying his mother to the dining room, Kneeland went next door to call the police. When the police arrived, Kneeland told them that Macon, defendant and two other males had robbed them.
Thereafter, a stipulation was entered into that if Dr. Teslow of the office of the medical examiner were called to testify, he would state that Jessie McGee died of a gunshot wound to the head and to the brain.
Next, Officer David Dioguardi of the Chicago police department testified that when he arrived at the McGee home on the morning of March 12, 1981, the injured were being removed and the house was in a general ransacked condition. After visiting Kneeland in the hospital, Dioguardi proceeded to an address given to him by Kneeland, where he arrested Macon. He then drove to defendant's residence, where he placed defendant under arrest. While in defendant's bedroom, Dioguardi asked him if he had any weapons. Defendant hesitated, looked toward the end of his bed where he was sitting and said "No." Dioguardi then told defendant to stand up while he searched the bed. In doing so, he recovered a .32 revolver. After Macon and defendant were transported to headquarters, Dioguardi proceeded to a home on 105th Place in Chicago, where he arrested Anthony Strong, Lorenzo Strong and Marvin Hammond and recovered two .32-caliber revolvers with bullets. On cross-examination, Dioguardi stated that the McGees' missing automobile was found parked five or six doors west of Macon's house.
Next, Sergeant Vincent Lomoro of the Chicago police department testified that the bullets removed from Barbara McGee and Jessie McGee were .32-caliber bullets.
Officer Fred Harris, a latent fingerprints examiner for the Chicago police department, testified that when he compared a latent palm print recovered from the right rear window of the McGees' Cadillac on March 13, 1981, to a reproduction of defendant's left palm print he found 10 points of identification. A stipulation was then entered into that the latent palm print was made by defendant. On cross-examination, Harris stated that he could not discern when the print had been left on the car and that he did not examine any other objects for fingerprints. The State then rested its case.
Defendant testified that on the afternoon of March 11, 1981, he and Lorenzo Strong accompanied Macon to the McGee home in order to help Macon move some of his belongings from the McGee home back to his own home. When they arrived at the McGees' house, Macon asked Jessie McGee if he could use the McGees' car to move some of his things. When Jessie refused, Macon borrowed some money from him for a taxi. Approximately 4 p.m., Macon, Strong, two of the Macon children and defendant left the McGee house in a taxi. Macon and defendant went to defendant's house, and Lorenzo and the two Macon children went to defendant's mother's house next door. Approximately two hours later, defendant and Lorenzo Strong went to Strong's house to meet Anthony Strong and Marvin Hammond. Macon was not there. After playing cards and rehearsing their band for several hours, Hammond, Anthony and Lorenzo Strong and defendant drove to defendant's house. The Strongs and Hammond again went to defendant's mother's house. Macon was waiting for defendant in his living room and asked him whether he was still going to help him move. Although defendant thought 2 a.m. was too late for moving, he, Macon, both Strongs and Hammond drove to the McGee house in Hammond's car. While in the car, defendant did not hear any discussion about robbing the McGees, but knew that Macon always carried a gun.
When they arrived at the McGee house, Macon told them to drop him off in front and then to drive around to the back. Macon then admitted defendant, Hammond and both Strongs into the rear entrance of the McGee house. Lorenzo Strong and defendant sat down on the bed in the rear bedroom and watched television while Anthony stood in the bedroom doorway. Defendant heard Mrs. McGee tell Macon that he had already taken too many aspirin. Macon signaled defendant to follow him, and when they reached Kneeland's room, Anthony opened his door, turned on the light, put his hand over Kneeland's eyes and held a gun to his head. Defendant's first reaction was to leave, but he did not want to use the back door because Kneeland might see him and recognize him. Instead, he "trotted" to the front door, but could not unfasten the chain. He then stood behind a partition in the dining room waiting for a chance to get out. While standing there, he heard Macon and Anthony tell Mrs. McGee that this was a stickup. When Jessie McGee walked out of his bedroom, Anthony hit him over the head and robbed him. Macon then asked Anthony if he should tie up Mrs. McGee. Anthony said "yes," and told Jessie and Kneeland to go to the basement and to sit at the top of the stairs. He then latched the basement door. When Anthony told Mrs. McGee to get up, she said that she could not walk. Defendant did not know why. At that point, he was nervous and scared and just wanted to get out. After defendant saw Macon put Mrs. McGee in a different room, he went out to the back porch where Strong was waiting and told Strong that he knew the McGees and did not want to be involved. Strong told him not to worry and sent him into the house to get Macon so that they could leave. Macon told defendant that he was going to stay and call the police to report a robbery and tell them that he had been hit over the head. As he was leaving, defendant heard Jessie McGee telling Macon that he knew Macon had something to do with the incident.
Anthony and Lorenzo Strong, Hammond and defendant then drove to Anthony's house in Hammond's car and divided the money taken from the McGees. Defendant allegedly refused to take any. Defendant denied that he had had a gun and further stated that he had neither seen a gun nor heard any gunshots. Approximately one hour later, Macon arrived at Anthony's house. When the group went outside, defendant noticed that Macon had a different car, but he did not recognize it as the McGees' automobile. Macon later drove defendant home in the car and asked defendant to hold his gun for him. Defendant took the gun and, once inside, threw it under his bed. A few hours later, defendant's wife woke him up and told him that some men were there to talk to him. He was then arrested for murder. Defendant claimed that he had had no idea what was going to happen when he went to the McGee house with the others.
On cross-examination, defendant stated that he had known the McGee family for about 10 years and that he saw Macon frequently because his mother watched the Macon children on weekends. The first indication defendant had had that something was wrong at the McGee house was when Anthony turned on Kneeland's bedroom light, put his hand over Kneeland's eyes and pointed a gun at him.
During the robbery, defendant did not try to leave via the back door because he did not want the McGees to see him. The only time that he ever spoke while in the McGees' house was when he asked Anthony what was going on. Further, he did not hear any vulgarities or shouts regarding money while he was there. Prior to being shown the police report, defendant did not know that Mrs. McGee had been raped. Defendant admitted that he had made no attempt to leave the scene once he was outside the McGee house. Instead, he followed Anthony's instruction to go back inside to get Macon. After doing so, defendant drove to Anthony's house with the others. He did not ask to get out of the car or to be taken home. In addition, once at the Strong's house, he made no attempt to leave and did not call the police when he arrived later at his own house.
At trial, defendant identified a photograph of the McGees' Cadillac as the car that Macon had driven to the Strongs' house directly after the robbery. He had never seen the McGees driving that particular car, and, in fact thought that the McGees had a black and white Cadillac rather than a yellow and brown one. When he asked Macon about the car that night, Macon told him that it belonged to his girlfriend. On the way home, defendant sat in the front passenger seat. He stated that he might have touched the back window when Macon and Anthony were arguing outside the Strongs' house about the television in the trunk.
On redirect, defendant stated that, after the incident, Anthony told him that he and Macon had planned the robbery and had wanted defendant and Lorenzo there because the McGees knew their faces and "wouldn't be worried or nothing, because they knew us." Defendant further testified that Macon told him that he had called the police and told them that some boys had broken in.
In rebuttal, Barbara McGee testified that one can exit from the front door of her house by simply turning the lock; no key is required.
Following closing arguments and the court's instructions to the jury, the trial court denied defendant's motion for a mistrial. Subsequently, the jury returned a verdict of guilty as to murder, armed robbery, home invasion, and the two counts of attempted murder, and a verdict of not guilty as to the rape and deviate sexual assault charges. Thereafter, defendant's motion for a new trial was denied and defendant was sentenced to ...