APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
510 N.E.2d 1026, 157 Ill. App. 3d 700, 109 Ill. Dec. 958 1987.IL.860
Date Filed: June 22, 1987; As Amended January 13, 1988.
Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Jr., Judge, presiding.
PRESIDING JUSTICE QUINLAN delivered the opinion of the court. O'CONNOR and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN
Defendant Lincoln, along with co-defendants Elston, Johnson, and Watson, were jointly indicted on charges of murder, attempted murder, aggravated battery, armed robbery, residential burglary, and home invasion in connection with an incident occurring March 3, 1984, at 1741 East 71st Street. (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4, 9-1(a), 12-4(b)(1), 12-11(a)(2), 18-2, 19-3.) Prior to trial, all defendants moved for severance and Watson, the only defendant who did not give a post-arrest statement to police, was granted a severance while Lincoln, Elston, and Johnson's motions for severance were denied. At the close of the People's evidence, the trial court granted defendants' motions for directed findings as to the charges of armed robbery, residential burglary, and home invasion. The jury then found the defendants guilty of home invasion, aggravated battery, and attempted murders of Donald Mitchell and Pamela Eskridge, and of the murder of Tony Carter. Judgment was entered on all findings, but later vacated as to the aggravated battery and home invasion counts. After a sentencing hearing, defendant Lincoln received a term of 30 years' incarceration for murder and two concurrent 10-year terms for attempted murder.
Donald Mitchell, his girl friend, Theresa Haggins, and her three children, and Pamela Eskridge lived in apartment 102 at 1741 East 71st Street in Chicago. On the morning of March 3, 1984, Mitchell, Haggins, and the children were in the bedroom of the apartment and Pamela Eskridge was in the living room with the decedent, Tony Carter. The defendant, Byron Lincoln, his girl friend, Yolanda Elston, and their two children lived next door in apartment 103. At about 8 a.m. on March 3, defendant Lincoln knocked on the door of apartment 102 and requested to speak with Mitchell. Eskridge let defendant Lincoln in and then walked through the kitchen to the back bedroom. Lincoln followed Eskridge, pushed the bedroom door open, and began shouting at Mitchell about "messing" with his girl friend and stealing his daughter's earrings. During this time, Eskridge walked back into the living room and observed codefendant Elston standing in front of the stereo which he had recently sold to Mitchell. Tony Carter was sitting on the couch and codefendant Johnson was standing in the doorway.
Eskridge returned to the bedroom and saw Watson, who was standing next to Lincoln, pull a .410 shotgun from beneath his coat and point the barrel at Mitchell. Lincoln allegedly told Watson to shoot Mitchell in the head. Mitchell and Eskridge were able to push the defendants out of the bedroom and hold the door shut. Watson fired two shots through the door, one hitting a dresser and the other striking Eskridge in the hand and Mitchell below the eye. At this time, Mitchell heard a voice coming from the back porch say, "I just bumped the guy in the front." Defendants Lincoln and Watson then burst through the bedroom door. Watson threw Lincoln the shotgun and then ran down the back stairs. Mitchell and Lincoln struggled over the shotgun; the barrel came apart from the handle and Lincoln also ran down the back stairs.
Mitchell, Eskridge and Haggins ran out the front door of the apartment and called the police from a neighbor's house. On their way through the living room, they observed Tony Carter lying on the floor with a shotgun wound in the stomach. When they returned to the apartment, they noticed that the stereo equipment was missing. Mitchell and Eskridge were later treated and released for their wounds. Tony Carter died from his wound.
Police recovered the stereo equipment that same day from Lincoln's apartment. Eskridge later identified Elston at the police station as being one of the men involved, and Elston then admitted holding a shotgun on Carter when it went off. Elston also permitted the police to search his car at the time of his arrest and an expended shotgun shell was recovered in the auto. Co-defendant Johnson, in a post-arrest statement, told police that he, Elston, Lincoln and Watson had discussed going over to Mitchell's house to "take care of him" at a party that the co-defendants attended the night before the incident. Johnson and Elston showed the police where the guns used in the incident were located. Lincoln also gave a post-arrest statement which corroborated Johnson's statement concerning their first meeting at the party and also told of a second meeting at Lincoln's apartment where the four men again discussed "taking care of" Mitchell before arming themselves and then going next door to Mitchell's apartment.
After their oral statements to the detectives, each of the defendants gave a statement to an assistant State's Attorney that was transcribed by a court reporter. The unredacted oral statements were given to the jury through the testimony of a police detective and later, the redacted versions were published to the jury with the limiting instructions that each statement could only be considered as a factor in determining the guilt of the defendant who made that statement. All of the defendants denied the truth of parts or all of their statements. The defendants renewed their motions for severance at the time the oral statements were admitted into evidence in their unredacted form. None of the defendants took the stand and the jury was instructed not to take into account the fact that a defendant did not testify. Instructions were also given on battery, aggravated battery, home invasion, recklessness, involuntary manslaughter, murder, and attempted murder. Judgment was entered on the jury findings that defendant Lincoln was accountable for the murder of Tony Carter and for the attempted murders of Pamela Eskridge and Donald Mitchell. Defendant's motion for a new trial was denied and Lincoln, as stated previously, was sentenced to a term of 30 years for murder and two concurrent 10-year terms each for the attempted murder convictions.
Defendant Lincoln appeals his conviction and sentence on the grounds that the trial court erred in denying his motions for severance, that the People failed to prove beyond a reasonable doubt that defendant agreed to, aided or abetted in the murder of Tony Carter, that reversible error occurred when the jury was not instructed that attempted murder requires a specific intent to kill, and finally, that the 30-year sentence for murder is excessive.
Taking defendant's first argument that severance was required here, we note that the general rule in criminal procedure has been that jointly indicted defendants are tried together before the same jury. (People v. Lindsay (1952), 412 Ill. 472, 480, 107 N.E.2d 614, 618.) However, as established in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the State may not use a codefendant's extrajudicial statements to inculpate the defendant in a joint trial because to do so would violate a defendant's sixth amendment right of confrontation. Where each defendant has made a statement which exculpates himself and inculpates his codefendant, the sixth amendment right of confrontation is abridged because a defendant cannot compel his codefendant to testify and is, thereby, denied his right to cross-examine the incriminating statements. However, this so-called " Bruton " problem may be resolved by granting a severance before trial or by redacting the codefendant's statements which are published to the jury to omit any reference to the defendant. (Richardson v. Marsh (1987), 481 U.S. , , 95 L. Ed. 2d 176, 188, 107 S. Ct. 1702, 1709.) In this case, although the written statements were redacted to remove any incriminating references to codefendants, the unredacted oral statements were admitted into the joint trial through the testimony of a detective so that the Bruton problem remained unresolved. Nevertheless, the trial Judge here ...