APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
526 N.E.2d 628, 172 Ill. App. 3d 394, 122 Ill. Dec. 369 1988.IL.1061
Appeal from the Circuit Court of Cook County; the Hon. James Schreier, Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Defendant, Lawrance Andrews, was tried by a jury and convicted of murder, armed robbery and aggravated battery. He was sentenced to an extended term of 70 years for murder, 30 years for armed robbery and five years for aggravated battery. The sentences are to run concurrently. On appeal, defendant contends that: (1) the denial of his pretrial motion to waive a death penalty jury deprived him of an impartial jury to try the merits of the case; (2) the trial court erred in allowing a police officer to testify in rebuttal as an expert witness; (3) the trial court erred in refusing to give his tendered instruction on identification; (4) his sentence of 70 years is excessive; and (5) the case should be remanded for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. We remand with directions.
On February 20, 1984, at about 6 p.m., the victim, 18-year-old Richard Steinbrecher, and his 17-year-old girlfriend, Angela Atiles, were in an automobile traveling west on the Eisenhower Expressway in Chicago. Steinbrecher was driving, and Atiles was sitting in the front passenger seat. After exiting the expressway, Steinbrecher stopped the automobile at a red traffic light on Kostner, just north of the expressway. While Steinbrecher was waiting for the traffic signal to change, Atiles noticed a man standing by the curb, looking at the automobile. He was medium build and wore a black jacket quilted around the shoulders.
After Atiles first noticed the man, whom she later identified as defendant, she turned toward Steinbrecher. When she turned to look at defendant again, he had moved closer to the automobile. Atiles turned away from defendant again. Suddenly, defendant got in the front seat of the automobile, next to Atiles, and pointed a gun at Atiles and Steinbrecher. At that time, another man later identified as Rickey Paxton appeared on the other side of the automobile. Paxton wore a rust and cream-colored ski mask hat, with another hat on top. Atiles put her head on Steinbrecher's lap. Steinbrecher tried to move the gear shift of the automobile, and the automobile moved slightly. Steinbrecher then told defendant and Paxton, "All right, all right. Just be cool. We'll give you what you want." Atiles then heard a crack sound, as if defendant's gun had hit the windshield. She did not realize that the sound came from defendant's gun as he shot Steinbrecher in the right side of his head.
Atiles sat up and looked into the face of defendant, who was still sitting next to her. Defendant then hit Atiles in the left eye with his gun, and said, "Give me your money, bitch." Atiles gave defendant all the money she had, $7. Paxton repeatedly asked defendant, "How much she got?" Defendant answered, "I don't know." Then defendant and Paxton fled.
Atiles realized Steinbrecher was unconscious, and she attempted to revive him but failed. She then got out of the automobile and went to a nearby gas station where she saw someone she later identified as Frank Phillips. An ambulance arrived at the scene and Atiles and Steinbrecher were taken to a hospital. While at the hospital, Atiles was treated for a swollen and black and blue left eye; her eye ball was red. At the hospital, Atiles was told that Steinbrecher died as a result of the gunshot to his right temple.
While she was still at the hospital, and within an hour and a half of the robbery and killing, Atiles was interviewed by a police officer. According to the officer, Atiles was upset, crying and disorganized. In the interview, she told the officer that the man in the ski mask had shot Steinbrecher and hit her.
Defendant and Paxton were arrested at about 9:30 p.m. on February 20, 1984, in the kitchen of Paxton's home. Defendant was still wearing the black, partially quilted jacket that he wore when the crime was committed. The two men were taken to a police station, where defendant signed a consent form to conduct a weapons search of his home. When the police officers arrived at defendant's home, defendant's mother escorted them to a bedroom where a .22 caliber pistol was found under a mattress. The weapon was later analyzed by two firearms technicians and they found it to be the murder weapon.
On February 21, 1984, defendant gave a four-page written statement to the police, which he signed. In his statement, defendant said that he and Paxton planned to do some stickups, and rob people in their cars as they pulled up at the stoplight on Kostner by the expressway ramp. Defendant said that as a blue car pulled up and stopped, he walked to the passenger side and pulled the door open while Paxton went to the driver's side. Defendant said that he then pointed his .22 pistol at the girl in the car and asked for her money. According to defendant, as he reached over the girl to go through the man's pockets, the gun fired. Defendant and Paxton then ran away. Defendant's statement was admitted into evidence at trial, over defendant's objection. Defendant contended that the statement was coerced and not voluntary.
On February 21, 1984, Atiles went to the police station to offer more information about the incident. She provided police with a description of the perpetrators. While looking through photographs, Atiles identified Frank Phillips in a photograph as someone she had seen at the gas station in the area where she was seeking help following the shooting. Later, on February 21, Atiles viewed a lineup. At the lineup, she identified defendant as the man who had gotten into the automobile and hit her with his gun. She also identified Paxton as the second man. All the lineup participants had to put on two hats as Atiles viewed them. The two hats were taken from Paxton at the time ...