APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
522 N.E.2d 715, 168 Ill. App. 3d 295, 119 Ill. Dec. 53 1988.IL.391
Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Hett, Judge, presiding.
JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
Defendant appeals from his conviction and sentence after a jury trial on one count of murder (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 9-1), two counts of attempt to commit murder (Ill. Rev. Stat. 1983, ch. 38, par. 8-4), and two counts of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2). During the crimes, which occurred in the apartment of the manager of the store at which defendant worked, the manager was killed and two of his visiting friends were injured. Defendant and a codefendant were tried by separate juries in a joint trial, and defendant was found not guilty on a third count of armed robbery. Defendant was sentenced to serve consecutive prison terms of 40 years for murder and 30 years for each attempted-murder count.
His co-defendant was also convicted of murder, attempted murder, and armed robbery and was sentenced to death; the codefendant's appeal was filed on February 8, 1988, in the Illinois Supreme Court as People v. Johnson, No. 66545., Defendant's trial theory was that he was forced by the codefendant and an unapprehended third man into participating in the crimes.
The issues on appeal are:
(1) Whether the State's evidence and closing argument improperly dwelt on the murder victim's survivors.
(2) Whether the State's closing argument misstated the law of accountability and compulsion, thus denying defendant a fair trial.
(3) Whether the trial court improperly instructed the jury on accountability.
(4) Whether the trial court improperly denied defendant's proposed instructions on lesser included offenses of involuntary manslaughter, aggravated battery, and battery.
(5) Whether the trial court improperly failed to direct a verdict of acquittal on one attempted-murder count for want of adequate proof of intent to kill.
(6) Whether the State disproved beyond a reasonable doubt defendant's affirmative defense of compulsion.
(7) Whether alleged misconduct by the State and alleged errors by the trial court cumulatively denied defendant a fair trial.
(8) Whether the trial court abused its discretion in sentencing defendant to consecutive prison terms totaling 100 years.
On the evening of January 20, 1985, defendant and two companions, Andrew Johnson and a man whom defendant later named at trial as Mike Hill (but both of whom were introduced at the time under other names), visited the apartment of William Feuling (Feuling), who managed the store where defendant was employed. There they found Feuling and two of his friends, Arthur Kozak and Brian Walkowiak, who were watching television and not expecting visitors. After some conversation, drinking, and sharing of marijuana, defendant's two companions produced guns and announced a robbery. Kozak testified that during the conversation, defendant and Feuling had discussed the discharge of defendant's sister from her job at the store.
While Johnson and Hill brandished their guns, defendant tied the victims up, gagged them, and removed money from their persons at Johnson's direction. After Feuling said he had no more money or guns in the apartment, Johnson hit him with the gun, repeatedly stabbed him with a kitchen knife, and slit his neck while defendant and Hill watched. Johnson then told defendant and Hill that they now all had to kill one, whereupon defendant took the knife from Johnson, first stabbing at Kozak's stomach and then cutting him on the head. Defendant also hit Kozak in his head with a hammer, at which time the hammerhead flew off. As Johnson urged defendant to "pop" Kozak, Walkowiak suddenly charged at the assailants and then ran from the room. Defendant then struck Walkowiak with a fireplace tool, and all three assailants ran from the apartment behind Walkowiak. During this time, Johnson shot Walkowiak in the shoulder, but Walkowiak escaped, and the assailants fled the scene. Though bound and wounded, Kozak then managed to telephone the police.
At trial, defendant presented evidence that he had visited the apartment at Feuling's invitation and that as of then he did not know that his sister had been fired. Defendant testified that Hill had previously shot and wounded him and later had shot through his coat, as well as having participated in beating him on yet another occasion. According to defendant, he encountered Hill and Johnson while waiting to board a bus to Feuling's apartment, and they followed him onto two buses and rode with him all the way to the apartment after asking him whether Feuling would mind if they came over.
Defendant testified that he tied up the victims out of fear for his own life. Defendant said that Johnson and Hill verbally abused him during this time, although State witnesses denied this. Defendant said that when Feuling was stabbed, he yelled for defendant to help him, and defendant picked up the gun that Johnson had laid down and tried to fire it but succeeded only in causing it to discharge at the floor. After this, he said, he falsely told Johnson the gun had fired by accident. Defendant said that he then responded to Johnson's order to kill Kozak by poking Kozak lightly in the stomach with the knife and that he still feared for his life. Defendant denied that he was trying to kill Kozak and said he was only pretending. Defendant said he then responded to a command to cut Kozak's throat by picking up a hammer and hitting him lightly with it. Defendant said the hammerhead came off because the hammer was weak. In response to a further order by Johnson and in fear for his life, defendant said, he then gently applied the knife to ...