Appeal from the Circuit Court of Will County, the Hon. Robert
R. Buchar, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1985.
Defendant, Domingo Perez, an inmate at the Stateville Correctional Center, was charged under an indictment with the murder of Richard Cook, a fellow inmate. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2).) Following a jury trial in the circuit court of Will County, defendant was found guilty of murder. At a bifurcated sentencing hearing, the same jury found the existence of a statutory aggravating factor (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(2)), and concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced defendant to death. The sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603). For the reasons set forth below, we affirm defendant's conviction and sentence.
On the evening of April 16, 1981, approximately 140 Stateville inmates were watching a movie in a section of the institution called the Movie Hall. Inmate Anthony Beamon, meanwhile, was mopping the floor in an area known as the C House Tunnel, which was located a short distance from the Movie Hall. Beamon was the only eyewitness to the attack on Cook to testify. Beamon recounted that, when the movie ended at about 7:30 p.m., he observed Cook leave the hall "walking kind of fast." A group of seven or eight other inmates followed Cook and surrounded him in the C House Tunnel. Several members of the group one of whom Beamon identified as defendant were armed with homemade knives and began swinging at Cook. Because Cook was in the middle of the group, Beamon was unable to see anyone actually stab him. Beamon testified, however, that he saw defendant twice raise a knife above his head and strike at Cook with a downward motion. The attackers then ran out of the tunnel into the corridor outside the Movie Hall.
Several correctional officers quickly arrived on the scene. As two of the officers assisted Cook past a group of inmates, Cook identified Hector Rivera as one of his attackers. He then pointed at defendant and said, "That's one of them." Cook, now bleeding profusely, began fighting with defendant. Correctional officers immediately separated the two, after which Cook was taken to a nearby hospital where he died on the operating table shortly after 9 p.m.
William Price, a member of the Internal Investigation Unit at Stateville, interrogated defendant on two occasions, once on the night of the murder and again almost a month later. Price testified that defendant first told him that during the movie he heard Cook cry out that he had been stabbed. Defendant went to help Cook, but Cook pushed him away and ran out of the Movie Hall. Defendant pursued Cook, and as he (Cook) was bending over, defendant stabbed him once or twice and threw his knife down the C House Tunnel. At the second interrogation, defendant stated that toward the end of the movie he observed Hector Rivera stab Cook twice in the back and inmate Sam Pacheco stab him once in the neck. Rivera and Pacheco then ran out of the Movie Hall pursued by Cook. Defendant ran after Cook and stabbed him in the left side while Cook was fighting with Rivera. He then threw his knife down the C House Tunnel.
Price further testified that during the second interrogation defendant admitted that a knife recovered from the C House Tunnel belonged to him. Price also said defendant denied any knowledge of a planned attack on Cook.
Dr. Edward Shalgos, who performed the autopsy, testified that Cook had been stabbed four times; once in the back of the neck, twice in the back and once in the left side of the chest. The neck and back wounds all had penetrated at a downward angle but were only superficial and could not have caused Cook's death. Dr. Shalgos testified the fatal wound resulted from a sharp cutting type instrument which was plunged horizontally deep into the left side of the chest, causing massive internal bleeding. When shown the knife which defendant acknowledged was his, Dr. Shalgos stated that it was "most highly compatible" with the fatal wound. It could have also caused two of the nonfatal wounds, he said, but that was less likely considering both the nature of those wounds and the characteristics of the knife.
Under cross-examination, the doctor testified that, if Cook had been standing, the fatal wound could not have been inflicted by a downward motion. Rather, the horizontal trajectory of the wound was consistent with a "forward thrust" of a person standing to Cook's side; however, it was possible that the fatal blow was inflicted by someone standing behind the victim.
The State also established that blood found on defendant's clothing could not have come from defendant, but was consistent with Cook's blood type. The same finding was also made with respect to blood found on the knife recovered from the C House Tunnel.
Following the presentation of the foregoing evidence none of which is disputed a conference on jury instructions was held. Asserting that the evidence was sufficient for the jury to find him guilty of only aggravated battery, defendant tendered an instruction relating to that offense. The State objected, and after lengthy arguments the court ruled it would not give the requested instruction.
Defendant now claims the court's failure to give the aggravated-battery instruction deprived him of a fair trial. Defendant's position is that aggravated battery is a lesser included offense of murder and that, considering the evidence, he was constitutionally entitled to an instruction on the lesser offense. In support defendant cites Beck v. Alabama (1980), 447 U.S. 625, 65 L.Ed.2d 392, 100 S.Ct. 2382, wherein the Supreme Court held that in a capital case due process entitles the accused to an instruction on any non-capital offense which is supported by the evidence. The court reasoned:
"[W]hen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense but leaves some doubt with respect to an element that would justify conviction of a capital offense the failure to give the jury the `third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
Such a risk cannot be tolerated in a case in which the defendant's life is at stake." 447 U.S. 625, 637, 65 L.Ed.2d 392, 402-03, 100 S.Ct. 2382, 2389.
In the instant case defendant points out that while the evidence clearly established that he stabbed Cook, it also showed that other inmates participated in the attack. Relying on Beamon's eyewitness testimony describing how defendant struck at Cook with a downward motion from overhead and on Dr. Shalgos' testimony that the fatal wound could not have been inflicted by a downward blow, defendant argues the jury could have found he did not cause the fatal wound. Moreover, he maintains that, because there was no evidence of any preconceived plan or agreement to kill Cook, he was not accountable for the actions of the other inmates who took part in the attack. Consequently, defendant contends the jury could have convicted him of aggravated battery, but it was denied that option when the court refused to give the aggravated-battery instruction.
Assuming that aggravated battery is a lesser included offense of murder, under the facts of this case we cannot agree with defendant's claim that he was constitutionally entitled to an aggravated-battery instruction. In Hooper v. Evans (1982), 456 U.S. 605, 72 L.Ed.2d 367, 102 S.Ct. 2049, the Supreme Court made clear that an included-offense instruction is required only in cases where the jury could rationally find the defendant guilty of the lesser offense and not guilty of the greater offense. 456 U.S. 605, 612-13, 72 L.Ed.2d 367, 373-74, 102 S.Ct. 2049, 2053-54. Accord, People v. Lockett (1980), 82 Ill.2d 546, 550-51; People v. Simpson (1978), 74 Ill.2d 497, 500-01; People v. Pokosa (1930), 342 Ill. 404, 411.
In this case the jury could not have rationally found defendant guilty of aggravated battery. The record shows the State presented alternative theories to establish defendant's guilt. It first asserted defendant was directly responsible for Cook's death. This theory was premised on (1) defendant's statement to Price in which he said he stabbed Cook in the left side while Cook was fighting with Rivera, and (2) Dr. Shalgos' testimony that defendant's knife was "most highly compatible" with the fatal wound. Clearly, under the direct-responsibility theory the jury could only have found defendant either guilty or not guilty of murder.
Even if defendant had not inflicted the fatal wound, the prosecutor told the jury, he was nevertheless responsible for Cook's death under the theory of accountability. Evidence supporting this theory consisted of Beamon's testimony, describing how defendant and a number of other inmates surrounded and stabbed Cook in the C House tunnel. Defendant, too, relies on Beamon's testimony, arguing that it, together with a portion of Dr. Shalgos' testimony, supports his claim that he could not have inflicted the fatal wound. Yet, it was immaterial whether or not defendant inflicted the wound which resulted in Cook's death, for, through Beamon, the State established elements necessary for finding defendant accountable for the actions of the other inmates who took part in the attack.
Section 5-2(c) of the Criminal Code of 1961 provides that a person is legally accountable for the conduct of another when "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." (Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c).) Defendant does not dispute his active participation in the stabbing but asserts, without citing any authority, that he cannot be held accountable because there was no showing that he acted pursuant to a preconceived plan or agreement to kill Cook. Such a showing is not required. As this court said in People v. Johnson (1966), 35 Ill.2d 624, 626:
"Evidence that one voluntarily attaches himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain a conviction as a principal for a crime committed by another in furtherance of the venture. (People v. Rybka, 16 Ill.2d 394, 405.) Proof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by a group, and 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. (People v. Richardson, 32 Ill.2d 472, 476.)" (Emphasis added.)
(See also People v. Hamilton (1981), 100 Ill. App.3d 942, 950-51; People v. Jovicevic (1978), 63 Ill. App.3d 106, 114; see People v. Sink (1940), 374 Ill. 480; People v. Barrett (1913), 261 Ill. 232; Ritzman v. People (1884), 110 Ill. 362.) Thus, even though defendant's actions may have been spontaneous, his participation in the stabbing made him legally accountable for the actions of every other member of the group.
Like the evidence supporting the direct-responsibility theory, the evidence underlying the accountability theory precluded any possibility of the jury finding defendant guilty of aggravated battery. In other words, defendant was either guilty or not guilty of murder. The trial court therefore did not err in refusing to give defendant's tendered instruction.
Defendant next alleges that the qualification of jurors pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, results in a jury biased in favor of the prosecution. We rejected this argument in People v. Collins (1985), 106 Ill.2d 237, 278, People v. Stewart (1984), 105 Ill.2d 22, 67, and People v. Lewis (1981), 88 Ill.2d 129, 147, and see no reason to depart from our holdings in those cases. There were no other challenges to defendant's conviction.
Defendant contends his death sentence must be vacated because the State introduced irrelevant and prejudicial evidence during the first phase of the sentencing hearing. In order to establish that defendant had attained the age of 18 when he murdered Cook, the State called Thomas Johnson, a Chicago police detective, to the stand. Johnson testified briefly, telling the jury that he arrested defendant in 1978 for armed robbery and that during his subsequent interrogation, defendant said he was born on May 24, 1960. It was improper during the first phase of the hearing, defendant maintains, for the State to elicit that he had been arrested for armed robbery. Defendant, however, did not ...