APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
552 N.E.2d 988, 193 Ill. App. 3d 918, 137 Ill. Dec. 761 1989.IL.1697
Appeal from the Circuit Court of Cook County; the Hon. Michael Getty, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. MURRAY, P.J., and LORENZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
In counts I and II of the indictment, the defendant, Willie J. Miller, was charged with the offense of murder, in that he on August 10, 1985, without lawful justification (1) intentionally and knowingly shot and killed Albert Johnson, with a gun; and (2) shot and killed Albert Johnson with a gun knowing that such shooting with a gun created a strong probability of death or great bodily harm to Albert Johnson, in violation of sections 9-1(a)(1) and 9-1(a)(2), respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2)). Counts III and IV of the indictment similarly charged defendant Miller with the murder of Jimmy Leggett. Defendant Miller waived jury. Following his trial, the trial court found him guilty of the offenses of voluntary manslaughter of Albert Johnson and Jimmy Leggett and sentenced him to a 12 years' imprisonment term on each of the two manslaughter convictions to run consecutively. Defendant Miller contends on this appeal that the trial court erred in imposing consecutive sentences because the two manslaughter offenses were committed as part of a single course of conduct during which there was no substantive change in the nature of the criminal objective, and also, because the victims' deaths were intrinsic, integral ingredients of the manslaughter offenses, the victims' deaths therefore could not also be relied on to enhance the penalty for the voluntary manslaughter offenses. Defendant Miller additionally contends on this appeal that the trial court further erred in relying on the impact testimony of one of the manslaughter victim's brother at the sentencing hearing in determining the sentence to impose.
Although the aggregate two consecutive 12 years' imprisonment sentences, 24 years, on the facts of this case revealed by the State's witnesses may not be excessive but indeed may be considered some-what lenient, the trial court nevertheless clearly lacked authority to impose the consecutive sentences in this case. Accordingly, we vacate the consecutive sentences. The facts and our reasons follow.
At trial, the State's four witnesses, John Robert Dillard, manager and bartender at the Root Inn Lounge, Cynthia Leggett, sister of the decedent victim Jimmy Leggett, Lacy Brown, and Adolphus Robinson established the following events preceding and during the defendant Miller's shooting of the victims, Jimmy Leggett and Albert Johnson.
John Robert Dillard, Lacy Brown, Cynthia Leggett and Jimmy Leggett were in the Root Inn, a tavern, in Chicago, on August 9, 1985, shortly before midnight. Defendant Miller entered the tavern and grabbed Jimmy Leggett. John Dillard came from behind the bar and put defendant Miller out of the tavern. Cynthia Leggett told her brother Jimmy Leggett that he should go home. A few minutes later, Jimmy Leggett left the tavern to go home, promptly followed by John Dillard, Lacy Brown and Cynthia Leggett.
Upon arriving outside the tavern, John Dillard, Lacy Brown and Cynthia Leggett saw Jimmy Leggett and Albert Johnson and defendant Miller engaged in an argument, during which no physical contact was made between them. Defendant Miller pulled a gun from his back and fired once at Albert Johnson, who fell instantly to the ground. Defendant Miller then fired at Jimmy Leggett, who thereafter turned and ran as defendant Miller ran behind him and fired another shot at him. Both Albert Johnson and Jimmy Leggett died from the gunshot wounds to their chests inflicted by defendant Miller.
Adolphus Robinson, another State witness, testified that while he was outside the Root Inn tavern, around midnight of August 6, 1985, he saw defendant Miller take a gun from the blouse of a woman who was in a parked car outside the tavern and place the gun in his pants. Adolphus Robinson immediately departed, but shortly thereafter he heard several shots fired.
The State's evidence established that at the time of his death, Jimmy Leggett had a .14 alcohol level and heroin in his blood. Albert Johnson also had heroin and a .139 alcohol level in his blood at the time of his death.
Chicago police Detective Ptak, also a State witness, testified that he and his partner arrested defendant Miller about 1:20 p.m. on August 10, 1985, after he was found hiding in a bedroom closet of Rose Bank's apartment. At the police station to which the officers took him, defendant Miller told Detective Ptak that he went into the Root Inn tavern to use the washroom, became involved in an argument with Jimmy Leggett, and was thrown out of the tavern by the manager, John Robert Dillard. Defendant Miller further stated to Detective Ptak that Jimmy Leggett, Albert Johnson and a third person whom he did not know followed him out of the tavern and that the three of them beat and kicked him. The defendant Miller pulled out his gun and fired once at Albert Johnson, then once at Jimmy Leggett, and then once at the third person. Detective Ptak testified that he saw no swelling, abrasion or laceration on defendant Miller's body.
A few hours after the defendant Miller gave Detective Ptak his oral statement, he gave a written statement to Assistant State's Attorney William Connelly, who also testified as a State witness. Defendant Miller's written statement to Assistant State's Attorney Connelly was substantially the same as his oral statement to Detective Ptak, but his written statement was more detailed about his beating. Assistant State's Attorney Connelly also testified that he did not see any bruises or marks on defendant Miller.
Defendant Miller testified as a witness in his own behalf. His version of the incidents was appreciably different from those of the State's witnesses. The defendant stated that he went into the tavern to use the washroom. Defendant Miller insisted that he did not have any contact with Albert Johnson or Jimmy Leggett while in the tavern. Nevertheless, defendant Miller testified that John Dillard, the manager, told defendant Miller to leave the tavern, and the defendant stated that he did so and that John Dillard, Albert Johnson and Jimmy Leggett followed him out. Albert Johnson, Jimmy Leggett and an unknown third man attacked, hit and kicked defendant Miller in his face, groin and back and knocked him to the ground. Defendant Miller stated that he felt one of the three men going for his wallet, and because he feared being robbed, he pulled a gun from his waistband and fired in Jimmy Leggett's direction. As defendant Miller then struggled to his feet, he shot at Albert Johnson. Defendant Miller said that he ran in the same direction that Jimmy Leggett ran, but that he was not chasing Jimmy Leggett; he fired his gun because he thought he was being robbed and that his life was being threatened, and he knew both Albert Johnson and Jimmy Leggett carried weapons.
It was the function of the trial court to determine the facts from the conflicting testimony of the State's witnesses and the defendant. The versions related by the State's witnesses were corroborated and appear to be plausible, while the versions by the defendant appear to be inherently flawed.
First, contrary to the testimony of the State's witnesses, defendant Miller testified that he entered the tavern to use the washroom, and although he stated he did nothing improper and had no contact with anyone in the tavern, John Dillard, the tavern manager, for no reason whatever, nevertheless told him to leave the tavern.
Second, again according to defendant Miller's version but contrary to that of the State's witnesses, Dillard, Albert Johnson and Jimmy Leggett followed the defendant out of the tavern. They did so, if the defendant Miller is to be believed, likewise for no reason whatever.
Third, defendant Miller testified that the three men attacked him, again, if defendant Miller is to be believed, for no reason whatever.
Fourth, defendant Miller's version that he pulled his gun and fired only after he was attacked, beaten, kicked, knocked down, and because he feared he was being robbed is flawed. It would seem that an armed man viciously attacked and robbed by three assailants for no reason would promptly and without hesitation pull his gun to protect and defend himself, rather than wait until after he has been pummeled and beaten to the ground. It would also appear to be unusual that, while being beaten by three assailants, the defendant would initially resort to his gun only after he was beaten to the ground and because he feared being robbed.
Fifth, defendant Miller's testimony that upon getting to his feet, he ran in the same direction that Jimmy Leggett ran, but that he was not chasing Leggett, but that he fired his gun at Leggett because he knew that Leggett carried a weapon and he, the defendant, feared for his life, seemingly is illogical and unreasonable.
As stated, however, it was within the province of the trial court to determine the facts from the State's witnesses and the defendant's contradictory testimony, and the trial court did so. Based upon the cold record, a court of review, without the benefit of hearing and observing the witnesses' demeanor as they testified, could possibly find the facts to be different than the facts found by the trial court in the case at bar. In the factual-legal context of this case, however, this court is mandatorily bound by the trial court's factual findings upon which it predicated its guilty manslaughter findings, as well as the guilty manslaughter findings themselves.
The trial court's guilty manslaughter findings conclusively negated the requisite intent for the offense of murder and, thus, constitute an implied acquittal of the murder charges, and the defendant's conviction of voluntary manslaughter had the effect of an acquittal of the grave charge of murder. (People v. Kendricks (1984), 121 Ill. App. 3d 442, 446, 449 N.E.2d 261, 263; People v. Fox (1983), 114 Ill. App. 3d 593, 595, 596, 459 N.E.2d 1137, 1140.) From the foregoing controverted testimony, the trial court in the case at bar concluded and found as follows:
"At the outset, I make it very clear, I do not believe the defendant. The defendant is a belligerent, jail house lawyer, tailors his testimony to what he perceives to be legal defenses. The defendant's testimony, therefore, should be considered only where it can be independently corroborated.
The State's evidence in this case, clearly indicates the defendant shot and killed both Leggett and Johnson, who were unarmed.
Most serious question for the finder of fact, is the question of whether there was, indeed, a scuffle, that is, the defendant testified, immediately preceding the shooting.
The evidence presented by the State indicates, I would note, that Leggett and Johnson, were intoxicated and under the influence of a morphine derivative.
Secondly, it indicates that Leggett and Johnson, were inside the tavern, but came out soon after the defendant was ejected, giving rise to a possible inference that they followed the defendant.
Thirdly, the court notes that all of the State's witnesses, appeared to be predisposed toward the decedents and against the defendant.
And fourthly, that all of the State's witnesses had been in a tavern, and there is at least a possibility that they were drinking or impaired.
For the reason I cited, earlier with regard to the State's evidence, and based upon the State's observations, of the type and character of the State's witnesses, their interest, bias and prejudice, as well as the reasonableness of their testimony, in light of the Court's own experiences in life, this Court finds that there was a scuffle between the defendant and the decedents, immediately prior to the incident.
Secondly, that the defendant intentionally killed Leggett and Johnson, but that at that time, he unreasonably believed that such actions were justified.
Accordingly, there is a finding of guilty of voluntary manslaughter of Leggett. Judgment is entered on the finding.
And there is a finding of guilty of voluntary manslaughter of Johnson. Judgment is entered on the finding." (Emphasis added.)
The court set the sentencing for a later date.
We are unable to discern from the record before us "the type and character of the State's witnesses" as stated by the trial court, and we are not benefited by the trial court's more articulate or specific description of them.
Parenthetically, we note that the State's witnesses did not testify that "there was a scuffle between the defendant and the decedents, immediately prior to the incident" as the trial court found. This finding by the trial court is expressly predicated on the testimony of the defendant, who also testified that the decedents and the unidentified third man attacked, beat, kicked and knocked him to the ground and attempted to rob him, which was exceedingly more than a mere "scuffle." According to defendant Miller, he was outnumbered and was being violently beaten and robbed when he pulled his gun and fired at his assailants to defend himself against the two forcible felonies that were being committed upon him. Thus, predicated on the defendant's testimonial version of the incident, it would appear that the defendant would have been legally justified and completely exonerated in so defending himself under the provision of section 7-1 of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 7-1), which provides:
"A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony."
The defendant's version of the double homicide cannot be consistently reconciled with the State's witnesses' contrary versions, which, if believed beyond a reasonable doubt by the trial court, would clearly have established that the double homicides were manifestly cold blood, dispassionate, premeditated murders.
It is apparent that the trial court rejected both the State's witnesses' and the defendant's versions and found that the defendant "unreasonably believed that such actions [of shooting the decedents] was justified." The trial Judge neglected to articulate the factual basis or concept upon which he concluded that the defendant, who, according to his version, without provocation was being attacked, beaten, kicked, knocked down and robbed by three assailants, "unreasonably believed" that his actions, in defending himself against such attack and robbery by shooting his assailants, were justified. The trial court, predicated upon its finding and Conclusions and exclusively within its province and over which this court is powerless in this case, found that the homicides were voluntary manslaughter.
When the cause came on for sentencing, seven weeks after the trial court's aforesaid factual findings and guilty findings of voluntary manslaughter, the trial court directed counsel:
"On the sole question of eligibility for consecutive sentencing, counsel may argue."
Thereupon, the assistant State's Attorney argued that under section 5-8-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4), the court was empowered to impose a consecutive imprisonment sentence on the two voluntary manslaughter guilty findings and that such a sentence would be appropriate in the case. Conversely, the defense attorney argued just as vociferously that consecutive sentences in the case could not be legally imposed under the aforesaid statutory provision and that consecutive sentences on the two voluntary manslaughter guilty findings would be invalid, improper and inappropriate. Thereupon the trial court stated, found and concluded, which we again set forth in detail because of the necessary materiality to the determination we make of the issues presented on this appeal:
"have considered the arguments of counsel as well as the cases submitted on the issue of ...