APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
521 N.E.2d 609, 167 Ill. App. 3d 659, 118 Ill. Dec. 327 1988.IL.461
Appeal from the Circuit Court of Sangamon County; the Hon. Jerry S. Rhodes, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
After a jury trial, defendant was convicted of murder and armed robbery in violation of sections 9-1(a)(3) and 18-2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(a)(3), 18-2). The circuit court of Sangamon County sentenced defendant to a term of 20 years' imprisonment on the murder conviction. No sentence was imposed on the conviction for armed robbery.
Defendant and Michael Davis were both charged with the murder and armed robbery of John Snow. Both defendant and Davis gave statements to the police implicating the other. The trial was severed, and defendant was tried first. Defendant was convicted as an accomplice pursuant to section 5-2(c) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 5-2(c)). On appeal, defendant alleges four errors: (1) defendant was not proved guilty beyond a reasonable doubt under the accountability theory; (2) the trial court failed to call all material witnesses to defendant's confession at a motion to suppress defendant's confession held during trial; (3) the prosecutor committed reversible error because of certain statements made in cross-examination of defendant and in closing argument; and (4) the armed robbery conviction is a lesser included offense of the felony-murder conviction, and must be vacated. In order to address defendant's reasonable doubt argument, a Discussion of the pertinent evidence is required.
John Snow was found dead in the late morning hours of July 6, 1986. His body was lying near a stump in the backyard of 1403 East Reynolds Street in Springfield. Next to the house at 1403 East Reynolds is a tavern with a parking lot and alley. The yard at 1403 East Reynolds contained a large amount of trash and junk, including several bricks. Directly across the street from 1403 East Reynolds is the Smooth Riders Motorcycle Club.
Dr. John Murphy, a pathologist, testified that an autopsy showed injuries to Snow's head and face. There were no wounds on the rest of the body. Snow's jaw was fractured in two places, and there was extensive hemorrhaging on both sides of the head. Snow's skull was fractured on the right side. Dr. Murphy gave his opinion that death was caused by a broad, blunt impact to the head. The doctor stated that bricks could cause such injuries.
Between July 6 and July 30, 1986, police had no substantial leads concerning Snow's death. Detective Daniel Hughes testified that he was assigned to the juvenile division of the Springfield police department, and that on July 30, 1986, he spoke to defendant at the police station in Springfield. The subject of the Discussion was a matter unrelated to the John Snow death. In the course of the interview, defendant stated that he and Michael Davis had seen an acquaintance of theirs named Auggie Johnson kill a white man by hitting him in the head with a brick. Hughes notified the detectives who were investigating Snow's death and left defendant to talk to them. Defendant and Davis were allowed to go home after they talked to these detectives.
Detective Don Kolar testified that he was involved in the investigation of Snow's death. On July 30, Kolar talked with defendant and Davis. Both defendant and Davis gave similar statements, which were reduced in writing on the following day. Kolar read defendant's statement of July 31, 1986, into the record. The statement indicated that defendant was 16 years old. During the evening of July 5, 1986, defendant and Davis went to the Smooth Riders Club to play pool. The two went in the front door and saw Auggie Johnson and Larry Ingram playing pool at the back table. Defendant and Davis played pool at the front table.
A white man entered the clubhouse. Defendant described a man with similar features to Snow and dressed as Snow was on the night of July 5. The white man made a motion with his fingers and asked defendant if he knew where marijuana could be purchased. Defendant suspected that the man was a police officer. Auggie Johnson called the man to the second pool table, and then told him to stay where he was. The white man leaned against a pole while Auggie Johnson finished the pool game. Defendant and Davis finished their game, and Davis went outside. A little later, Auggie Johnson finished his game and walked out the front door with the white man. Defendant saw Auggie Johnson and the white man walk across the street and enter the alley by the tavern. Defendant went back inside the club and bought some potato chips, and then asked someone to play a song on the jukebox.
Defendant stated that when he went back to the front door, he saw Auggie Johnson running in the alley. Auggie Johnson was carrying a large brown wallet in his left hand, and he ran down the alley toward his girlfriend's house. Defendant went outside and told Davis that it was time to go. Davis told him that Auggie Johnson had beaten the white man. Davis and defendant then left.
On the following day, Davis told defendant that Auggie Johnson had hit the white man in the head with a brick. On the same day, defendant heard his mother say that a man had been killed. A few days later, Davis heard Auggie Johnson tell Larry Ingram that Johnson had killed the white man. Auggie Johnson then looked at Davis and said, "You little niggers know what's good for you, you will forget about -- forget what you have heard me talk about." Defendant agreed, and he and Davis left. This ended defendant's July 31 statement.
Kolar testified that the only differences between defendant's oral statement of July 30 and written statement of July 31 were that defendant added to the written statement that he could see currency sticking out of the wallet which Auggie Johnson carried, and that he could see the wallet because a mercury-vapor light was located nearby.
After obtaining statements from defendant and Davis, Kolar and another detective went to the Smooth Riders Club. They determined that it was impossible to see the backyard at 1403 East Reynolds from the porch of the Smooth Riders Club. On August 1, 1986, Kolar spoke with defendant again. After reading defendant his Miranda rights, Kolar said that it was physically impossible for defendant and Davis to have seen what they claimed. Defendant responded that he had seen Davis go up the alley behind Johnson and the white man, and then saw Davis run out of the alley ahead of Johnson. Defendant stated that other than this change, his prior statement was correct.
On August 7, 1986, Kolar again read defendant his rights and interrogated him. Kolar told defendant that Michael Davis had said that defendant had actually witnessed the beating. Defendant responded that after Davis followed Auggie Johnson and Snow, defendant had watched them until they were out of sight, and then returned to the Smooth ...