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People v. Graham

OPINION FILED APRIL 17, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT GRAHAM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Garland Watt, Judge, presiding.

JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Following a jury trial, the defendant, Robert Graham, was convicted of murder, attempted murder and armed robbery, and received concurrent sentences of 40 to 80 years, 30 to 60 years and 15 to 30 years, respectively. On appeal, the defendant contends that (1) his murder conviction must be reversed because the felony-murder rule was inapplicable where the deceased was a participant in the forcible felony; (2) the trial court erred in instructing the jury that the defendant could be found guilty of murder under a theory of accountability for Officer Patrick White's conduct; (3) the trial court erroneously gave instructions which permitted the jury to find the defendant guilty of attempted murder without finding specific intent to kill; (4) the trial court improperly admitted hearsay evidence; (5) prosecutorial remarks in opening and closing statements and during trial were improper; and (6) imposition of the sentences defendant received was an abuse of the trial court's discretion.

Officer White of the Chicago police department testified that at about 11:45 p.m. on August 13, 1974, while off duty, he went to the Jewel Food Store at 2323 West 111th Street, Chicago. Officer White was carrying a Colt .45 revolver and a Smith .357 revolver. In the parking lot, he met Patrick Murray, an acquaintance employed at the store. The two men were followed into the store by the defendant, Rodney Hewitt and Joe Larry Nicholson. The defendant walked to the customer service counter, Hewitt moved to the window and Nicholson went to the express checkout lane. Partially covering his face with a yellow bandana, the defendant drew a gun and announced a holdup. Hewitt and Nicholson also drew guns. The defendant demanded money from the woman working behind the service counter. Officer White pulled out his police star and .45 revolver, announced that he was a police officer and ordered the men to freeze. Nicholson shot once at the night manager and opened fire on Officer White. Hewitt and the defendant, whose scarf had fallen down, also began to shoot at the policeman. Officer White returned the gunfire. Nicholson ran toward the door, followed by Hewitt and the defendant. Nicholson fell just outside the door. Hewitt and the defendant tripped over Nicholson, regained their footing and ran on. Officer White pursued them, reaching the door. Just before the defendant rounded the corner of the building, he turned and shot at Officer White. Officer White fired back. The defendant fell around the corner as if he had been shot. Officer White noticed a gun in the hand of Nicholson, who was wounded and still on the ground, and another gun next to him. The policeman kicked the revolver out of Nicholson's hand. As he chased Hewitt and the defendant, he observed a green 1972 Plymouth in the parking lot with no one in it. Hewitt and the defendant jumped over a wooden fence adjacent to the lot. Officer White returned to the store. Shortly thereafter, he observed that the Plymouth was gone, and he discovered a bloodstained paper bag by the fence.

Later that night, Officer White turned in his guns at the Area 2 police station for a ballistics check. He identified two photographs of the defendant. On September 26, 1974, Officer White identified the defendant in a lineup.

Patrick Murray testified that on August 13, 1974, he was employed by the Jewel Food Store at 2323 West 111th Street, Chicago. At 11:45 p.m. on that day, he encountered Officer White in the store parking lot as he arrived to pick up a paycheck. He described the robbery, corroborating Officer White's testimony. On September 26, 1974, Murray identified the defendant in a lineup.

Millicent Speck testified that on August 13, 1974, she was working at the customer service desk of the Jewel Food Store at 2323 West 111th Street, Chicago. As she wrapped money in bands marked with the store's name and address, she wrote her name and the amount on the bands. A man pointed a gun at her, announced a holdup and demanded money from the safe. Speck handed over three bands of money. When he asked for a paper bag, she told him to get one from the register. Then she heard a shot. She lay on the floor while more shots sounded, and got up when she heard familiar voices. Subsequently, Speck was taken to a police station, where she identified two money bands with her handwriting and the store's name and address.

Dr. Eupil Choi testified that Joe Larry Nicholson died of a bullet wound to the head.

Sergeant Donald Smith, a Chicago police department firearms expert, testified that the bullet and bullet fragment removed from Nicholson's body were .32 caliber and could only have been fired from a .32 caliber pistol. In connection with this case, he examined four guns: a J.C. Higgins .22 caliber pistol and a .25 caliber pistol, both recovered from the vicinity of Nicholson's body, and Officer White's Colt .45 revolver and .357 magnum revolver.

Sergeant Franklin Smith testified that at about 1:30 a.m. on August 14, 1974, he was working as a homicide investigator for the Chicago police department. He went to Provident Hospital to interview the defendant, who had been admitted with a gunshot wound to the abdomen. Sergeant Smith was following routine police procedure. He had no knowledge of the robbery. The defendant stated that he had been shot accidentally by John Lester while they were playing with a gun; that Ronald Waites had brought him to the hospital, and that he did not wish to press charges. About an hour later, Sergeant Smith heard a radio message regarding a man possibly shot in connection with the Jewel robbery. He informed police authorities of his interview with the defendant. The defendant was arrested at about 3 a.m.

Officer Thomas Boyd of the Chicago police department testified that after speaking with an informant, he and several officers headed toward a house at 115th Street and Vincennes Avenue in search of Orville McReynolds. At 112th Street, they stopped an automobile driven by Ronald Waites. Money protruded from the pants zipper of his passenger, Vernita Graham. Upon her refusal to remove the money, Officer Boyd took it. The money was wrapped in a band marked with the name and address of the Jewel store at 2323 West 111th Street. Officer Carolyn Basile of the Chicago police department searched Vernita Graham, recovering more banded money.

An examination of the house on 115th Street, where Waites lived, proved fruitless. The police proceeded to a house at 17134 Watkins Street. There, they found several items of clothing and a wallet that were blood-soaked. The wallet contained numerous pieces of identification bearing the name "Orville McReynolds." Tests revealed that the blood on these items and on the paper bag was type B, the defendant's blood type.

The jury returned guilty verdicts of murder, attempted murder and voluntary manslaughter against the defendant. The trial court sentenced the defendant to 40 to 80 years, 30 to 60 years and 15 to 30 years, respectively. The sentences were ordered to run concurrently. The defendant appeals.

• 1 The defendant contends that he cannot be convicted of murder in the death of his cofelon, Nicholson, under the felony-murder doctrine. Section 9-1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9-1(a)(3)) provides that a person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death, he is attempting or committing a forcible felony other than voluntary manslaughter. Committee comments add that it is immaterial whether the killing is intentional or accidental, or is committed by a confederate without the connivance of the defendant, or even by a third person trying to prevent the commission of the felony. (Ill. Ann. Stat., ch. 38, par. 9-1(a)(3), Committee Comments, at 16 (Smith-Hurd 1979).) Where several persons conspire to do an unlawful act and another crime is committed in the pursuit of the common object, all are alike guilty of the crime committed if it is a natural and probable consequence of the execution of the conspiracy. (People v. Payne (1935), 359 Ill. 246, 194 N.E. 539.) A felon is responsible for those deaths which occur during a felony and which are the foreseeable consequence of his initial criminal acts. People v. Brown (1979), 70 Ill. App.3d 922, 388 N.E.2d 1253.

In support of his contention, the defendant relies upon People v. Morris (1971), 1 Ill. App.3d 566, 274 N.E.2d 898. In Morris, the defendant's cofelon was justifiably killed by an innocent third party trying to prevent a forcible felony. The felony-murder doctrine was found inapplicable, and the defendant's murder conviction was reversed, because the killing was not an act done in furtherance of the common design to commit a forcible felony. The defendant in the instant case urges us to similarly hold that he is not responsible for his cofelon's death under the felony-murder rule. However, the instant facts are distinguishable from those in Morris. The evidence indicates that Nicholson was shot by the defendant or Hewitt as they fired at Officer White during their escape. The period of time involved in an escape with immediate pursuit after committing a crime is part of the crime itself. (People v. ...


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