Appeal from the Circuit Court of Cook County; the Hon. Frank
Machala and the Hon. Donald Joyce, Judges, presiding.
PRESIDING JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:
Defendants, Hosea Kaiser Fort and Terry Cannon, were found guilty after a jury trial of murder and armed robbery. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1, 18-2.) Defendant Fort was sentenced to serve extended, concurrent terms of 80 years for murder and 60 years for armed robbery. Defendant Cannon was sentenced to serve concurrent terms of 30 years for murder and 10 years for armed robbery. Both defendants appeal, and their appeals have been consolidated for review.
The following points are raised. Both defendants allege that the trial court erred when it denied their motions for severance. Defendant Cannon alleges that his rights under the confrontation clause of the sixth amendment were violated; and that his rights under the sixth and fourteenth amendments were violated because prospective jurors who would not impose the death penalty were excluded (U.S. Const. amends. VI, XIV.) Defendant Fort alleges: he was denied a fair trial because a prior consistent statement made by Cannon was used as evidence against him; the trial court erred in refusing to tender jury instructions on voluntary manslaughter; the misconduct by Cannon's counsel required a new trial; and his sentences were improper.
At the time of the incident, the victim, Robert Whitaker, lived with his brother George and George's girlfriend, Debra Cannon. Debra is the sister of defendant Terry Cannon. In 1980, George and Debra had a child, her second. Debra's first child was fathered by defendant Fort in 1971.
During the summer of 1980, defendants began to visit Debra at the Whitaker residence. Defendant Fort and Robert Whitaker usually argued, and on one occasion, Robert called the police to get Fort out of the house. Debra and George also argued and occasionally exchanged blows.
During the middle of December, George ordered Debra to move out of the house. She left without many of her personal effects. Debra was the subject of an arrest warrant, and she was arrested on December 16, 1980. Debra later learned that George cooperated with the police. Later that day, Robert called Cecilia Cannon, Debra's and Terry's sister, and informed her of the arrest. Terry went to the Whitaker home and took Debra's older child, defendant Fort's daughter, back to his apartment, which he shared with Carol Johnson. That night, Terry visited Debra in the lock-up. She told Terry that he was to remove her personal property from the Whitaker residence. They also discussed raising money for bail.
The next day, December 17, defendant Fort visited Cannon. Fort was upset that Debra was still in jail. That afternoon, defendants went to the Whitaker home and retrieved Debra's daughter's clothes. Defendants also took a camera, a radio, and some cash from a cabinet. After returning to Cannon's apartment, defendants began drinking and decided that they would return to the Whitaker home, take more property, and sell it so that they could raise Debra's bail money. They left at about 8 p.m.
Defendants parked in the alley behind the house and entered through the front door. According to Cannon, Robert Whitaker had been drinking, was home alone, and was hostile to them when defendants entered. Robert carried an object that resembled a piece of pipe or heavy stick in his hand as protection. Cannon went upstairs, gathered some more of his niece's things, and began to rifle through George's dresser.
What happened next is disputed. Cannon testified that Robert came upstairs, started yelling, and began beating him with the object. Cannon defended himself, hit Robert, and knocked him down against a radiator. Fort came upstairs and stabbed Robert with a knife that Fort had found in the kitchen.
Defendant Fort stated that after Robert went upstairs, he heard drawers being thrown around and heard Cannon say, "[D]on't nobody do this to my sister, hurt my sister." Fort went upstairs and saw Robert lying against the radiator with blood on him. Cannon said to Fort, "What the hell are you looking at?" Defendants then took some property, including a portable television set, a stereo, two clock radios, an electric razor, and a bag full of pennies. They loaded the car and returned to Cannon's apartment.
According to Cannon's girlfriend, Carol Johnson, defendants returned at about 9:30 p.m. Cannon brought in the television set. Outside Fort's presence, Cannon told Johnson that Fort had killed Robert. Later, Fort said that "Debra should be grateful" for what they had done for her. Johnson also stated that she saw blood on Fort's hands. Cannon told Fort, "You didn't have to stab him," to which Fort replied, "You shouldn't have stopped me from stabbing him." At about 10 p.m., Fort returned to his residence, taking the stereo with him.
When George Whitaker returned home from work on December 17, 1980, he found his home ransacked and his brother murdered. George called the police and told them of the trouble that he had been having with Terry and Debra Cannon. George accompanied the police to Charlene Cannon's house, who directed them to Cannon's apartment. Cannon was arrested, advised of his rights, and taken to Area One Violent Crimes. At about 1:30 a.m., Cannon made a statement that implicated Fort. Two hours later, Cannon made another statement that corroborated the first. At about 7:50 a.m., Cannon gave a third statement that implicated Fort. This was reduced to writing and signed by Cannon.
Defendant Fort was arrested at about 6:15 a.m. Later that day, he gave a statement that implicated defendant Cannon. The statement was reduced to writing and signed by Fort.
Defendants were indicted. Before trial, they moved to suppress their statements and for severance. The court denied the motions. A jury returned guilty verdicts. Fort was sentenced to 80 years for murder and 60 years for armed robbery. Cannon was sentenced to 30 years for murder and 10 years for armed robbery. Both appeal.
Both defendants argue that the trial court erred in denying their motions for severance. At the hearing, counsel for Fort urged the court to grant severance because of information that he had obtained and set out in his affidavit in support of severance:
"I have talked to [Cannon's attorney] repeatedly about this case and he has informed me on a number of occasions [that] Mr. Cannon will testify in the case and that when Mr. Cannon testifies in this case, he will say that Mr. Fort performed the acts which caused the death of Mr. Whitaker, that Mr. Fort performed those acts by himself, that Mr. Cannon attempted to stop Mr. Fort from killing Mr. Whitaker, that Mr. Cannon was acting under threats of force and compulsion directed at him by Mr. Fort.
I believe that this is an antagonistic defense, Judge.
I think that it would be grossly unfair to require me to not only having to defend against the very serious charge in this indictment brought by the State, but also at the same time defend ...