Appeal from the Circuit Court of Champaign County; the Hon.
Robert J. Steigmann, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After a trial by jury in the circuit court of Champaign County, defendants, Kenneth Dwayne Terry and Ray Charles Terry, were convicted of (1) the aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(1)) of Leroy Carter, and (2) the unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3) of Ronald Lindsey. Defendants were both subsequently sentenced to concurrent terms of three years' imprisonment for each offense. We have consolidated defendants' appeals from their sentences and convictions. Each contended that: (1) The court erred in giving the so-called Hill instruction; (2) the armed violence convictions were invalid, because they were based on aggravated battery by use of a deadly weapon, an offense which cannot be the predicate offense for an armed violence charge; and (3) the severity of the sentences was a breach of the trial court's discretion. We affirm.
Defendants' most serious claim of error is that the giving of the Hill instruction was reversible error. Defendants' guilt of aggravated battery here arises, if at all, from their accountability for the conduct of others. The Hill instruction concerns accountability. As it was phrased here, it stated:
"If the jury finds that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design, then the jury may infer that he shared a common purpose with that group."
As the name given the instruction implies, it had its origin in the case of People v. Hill (1968), 39 Ill.2d 125, 233 N.E.2d 367, where the court held that the giving of the instruction was proper there even though the jury had also been given an instruction defining accountability in the language of the statute. Ill. Rev. Stat. 1965, ch. 38, par. 5-2(c).
The Hill case was decided shortly before the adoption of Illinois Pattern Jury Instructions (IPI), Criminal (2d ed. 1981). Subsequently, in People v. Poll (1979), 74 Ill. App.3d 534, 393 N.E.2d 732, and People v. Hunter (1978), 61 Ill. App.3d 588, 376 N.E.2d 1065, we recognized that the inference was proper and that the giving of the instruction did not require reversal. We stated, however, that the better practice would be to merely give IPI Criminal 2d No. 5.03, which defines accountability in the language of the statute. We concluded that the format of IPI Criminal had changed the policy of the Hill decision and discouraged elaboration upon various ways in which the elements of accountability might be proved. In People v. Ruiz (1982), 94 Ill.2d 245, 447 N.E.2d 148, the supreme court approved the existence of the Hill inference, citing language from People v. Rybka (1959), 16 Ill.2d 394, 405, 158 N.E.2d 17, 22, upon which the Hill instruction was framed. However, the court did not pass upon the propriety of instructing the jury concerning the inference.
Although we do not hold the giving of the Hill instruction here to be reversible error, for our previously stated reason and for other reasons now apparent, we adhere to our position that ordinarily, the better practice is not to give the Hill instruction.
Before further consideration is given to the Hill instruction, consideration of the evidence at trial is appropriate. A fair amount of it is undisputed. Defendants, and Lee and Michael Terry who were indicted with them, are all brothers. At least Lee and Michael Terry had become extremely angry at Leroy Carter's cousin, Bay Carter, and decided to kill him. Bay Carter had, apparently, shot Lee in the hand. On the evening of April 12, 1984, the four Terry brothers drove through the north area of Champaign-Urbana in an automobile. At least Lee and Michael had the purpose of finding Bay Carter and killing him. The defendants testified that they went along to try to dissuade the other two brothers from attacking Bay. Most of the evidence upon which the convictions were based came from the testimony of Leroy Carter, who was the victim of the aggravated battery, and Leroy's uncle, Ronald Lindsey, who was allegedly unlawfully restrained.
Leroy Carter testified that on the evening of April 12, 1984, he and Ronald Lindsey were approached by Ray Charles Terry and Lee Terry in the 800 block of North State Street in Champaign. He stated that Lee was armed with a .38-caliber pistol and Ray was holding a .22-caliber pistol. He stated he could not see Ray's gun except for the barrel. Leroy further testified that Lee asked Leroy where Bay Carter lived. Leroy stated that he told Lee he did not know. Leroy stated that Lee then threatened to "blow [his] head off" if Leroy did not tell Lee where Bay lived.
Leroy testified that Ray then asked Leroy and Ronald if they would get into a car that was parked around the corner. He stated that Michael Terry then appeared from behind a tree with a shotgun in his hands and ordered Leroy and Ronald to get into the car that was parked around the corner. Leroy stated that he sat between Kenneth Terry, who was driving, and Ray Charles Terry in the front seat, and Ronald sat in the middle of the back seat between Lee and Michael Terry. He stated that while they were in the car, Kenneth Terry exhibited a knife and said he was going to "gut" someone. Leroy stated that Ray aimed a gun at Leroy and Michael aimed a gun at Ronald. He stated that Michael told Leroy and Ronald that they would be "dropped off at the lake," which he interpreted as meaning they would be killed. Leroy stated that he then told the Terrys that his sister, Lizzie Wade, might know where Bay lived.
The parties agree that the automobile was then driven to Lizzie Wade's apartment, where Ray and Lee Terry and Leroy Carter got out. Leroy testified that Ronald Lindsey and Michael and Kenneth Terry remained in the vehicle. According to Leroy, he walked between Ray and Lee Terry to the front door of the apartment, where he rang the bell, and his sister's husband, Bobby Wade, answered the door. He stated that his sister told them she did not know where Bay lived. He further stated that Lizzie asked Leroy what was wrong, and Leroy asked Lee if he could talk to his sister. He stated that Lee and Ray said yes, but they told him not to make any false moves. He stated that he then ran toward his sister's apartment, and was shot in the right leg. He testified that he did not know who shot him. Leroy testified that bullets were shot at the front door and back door and windows of Lizzie Wade's apartment.
Ronald Lindsey substantially corroborated Leroy's testimony, but he stated that only Lee Terry accompanied Leroy to the door. Ronald also testified that after the gun shots, Michael Terry jumped from the vehicle and fired at the back of Lizzie Wade's apartment with a shotgun, Ray and Kenneth Terry ran from the automobile toward the apartment, and he, Ronald, ran from the scene. Bobby Wade testified that Leroy and Ray Terry came to the door and that Ray had nothing in his hands. Bobby Wade stated that Lee Terry shot Leroy, and Leroy then ran into the apartment, whereupon four or five more shots were fired.
Lizzie Wade also testified that Ray Terry accompanied Leroy to the door and that when they were told that the Wades did not know where Bay Carter lived, Ray and Leroy turned away. She stated that as they walked away from her door, she asked Leroy to come back to talk to her, and a man standing on the sidewalk said he had to talk from the sidewalk. She further testified that when Leroy ran toward her, the man on the sidewalk shot Leroy.
Ray Terry testified that he intended to try to calm Michael and Lee and dissuade them from killing Bay Carter. Ray admitted he was carrying a .22-caliber pistol in his pocket at the time but said he did so in fear of Bay Carter. He admitted that when he was talking to Leroy about where Leroy's sister lived, Michael Terry appeared from the bushes with a shotgun in his hand and told Leroy and Ronald to get into the car. Ray contended that he, Lee Terry and Leroy went to the Wade apartment, and that when Leroy started to run, Lee shot Leroy. Kenneth Terry also asserted that he and Ray went along with their brothers to dissuade them from their plan to attack and kill Bay Carter. Kenneth's testimony was generally ...