APPEAL FORM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JAMES J. HEYDA, JUDGE PRESIDING.
Rehearing Denied April 28, 1994. Petition for Leave to Appeal Denied October 6, 1994.
Scariano, DiVITO, McCORMICK
The opinion of the court was delivered by: Scariano
JUSTICE SCARIANO delivered the opinion of the court:
In the afternoon of June 14, 1987, thirteen-year-old Tamara Washington was shot and killed while she played jump rope with friends outside her grandmother's house at 6840 South Winchester in the City of Chicago. Defendant and his half-brother, Freddie Jefferson (Freddie), were arrested and charged by indictment in connection with the shooting. Their trials were severed and we affirmed Freddie's murder conviction in People v. Jefferson (1992), 227 Ill. App. 3d 491, 592 N.E.2d 134, 169 Ill. Dec. 647, appeal denied (1992), 145 Ill. 2d 639, 596 N.E.2d 633.
At defendant's trial, Dr. Nancy Jones, deputy medical examiner, testified that Tamara died from a gunshot wound to the back, describing it as "a typical wound of entrance" which was not caused by a ricochet bullet. She was unable to identify the caliber of the bullet.
Michael Crawford testified that in the afternoon on the day of the shooting, Joe Jefferson (Joe) *fn1 and Erik Lamont Green were with him on his porch at 6744 South Winchester. A fistfight broke out between Joe and Green, and, after Crawford and his brother broke it up, Green ripped the window out of Joe's car, which was parked across the street. Crawford's mother called the police and told her son to take Joe home, but instead Crawford and Joe went to defendant's apartment. Crawford stood outside the closed apartment door, because he was afraid of defendant's pit bull dog, and from there he heard Joe tell defendant that Green had "jumped" him. When Joe, Freddie and defendant emerged from the apartment, Crawford and Joe provided defendant with Green's address and description. Crawford recalled that when defendant saw Joe's car, he "looked mad." Defendant sent Crawford and Joe home and he and Freddie drove away in defendant's brown Cadillac Seville. Crawford did not see defendant carrying a gun.
Michael Torrence testified, acknowledging that he was serving a twenty-five year prison sentence for armed robbery in Arkansas concurrently with an Illinois sentence. He stated that the State had not made him any promises in exchange for his testimony except to try to have him transferred to Illinois. Torrence testified that he had had a business relationship with defendant and that on the day of the Shooting, hewas at defendant's apartment with Freddie and Melvin Duncan, defendant's uncle. He recalled that Joe left the room to "freshen up" after telling them about his fight with Green. While Joe was gone, defendant took out a white plastic bag containing two pistols and put one in the left side of his pants. Torrence remembered defendant's stating that "people in this city think that I'm soft, something has to be done about it," and that he was going to "pistol whip" Green. Defendant offered Torrence "some of the action" but Torrence declined because he wanted to visit his child. Freddie, defendant, and Torrence then left the apartment and defendant drove Torrence to an El stop.
On cross-examination, Torrence revealed that he had been brought back to Illinois from Arkansas because of an outstanding warrant for his arrest on charges of aggravated criminal sexual assault and home invasion. After he pleaded guilty to those charges and was sentenced, prosecutors contacted him regarding the present case, but he did not cooperate with them until they offered to try to have him transferred to Illinois to serve his sentences.
Green testified that he was walking out of his sister's yard on Winchester when he observed a brown Cadillac driving north as it exited the grocery store parking lot across the street. Green saw Curtis Moore approach the car, talk with its occupants, and then look in Green's direction, apparently pointing him out to the people in the car. The driver, whom Green identified at trial as defendant, exited the car and walked towards him. When Green saw him reach behind his back, he began running north on the west side of the street. He also saw the passenger emerge from the car and cross around the back of it. Green recalled that he then heard at least four or five gun shots and "felt some shots coming past me." He ran into a vacant lot where he remained for about five minutes. When he came out, he saw a crowd around Tamara, who was lying on the ground. The following day, Green viewed a lineup and apparently identified defendant and Freddie, although the record lacks an express statement to that effect. Green was uncertain whether Freddie or defendant did the shooting, stating that "I don't know which gun did the shooting but one of them did it."
On cross-examination, Green admitted that in previous testimony he had stated that the man on the passenger side of the car got out first, reached behind his back, and started to approach him. He also stated that even though he could not see the gun, he "could feel" it pointed at him.
Curtis Moore testified that he was talking with Green near the grocery store on Winchester when the brown Cadillac, driven by defendant, pulled up. Two passengers were in the car and Moore approached them to see if they wanted to purchase some marijuana. He testified that the passenger jumped out of the car, came around to the driver's side, and that defendant then got out and reached behind his back. He saw Green start running and "then they started shooting." Moore jumped over a fence to avoid the gunfire. On direct examination, Moore stated that he could not tell whether the passenger or the driver did the shooting; however, on cross-examination, he admitted that about one hour after the shooting, he told the police that the passenger shot at Green. He identified both men from photographs at the police station.
Several neighbors witnessed the shooting. Lena Robinson, Tamara's grandmother's next-door neighbor, testified that she was on her porch when she overheard the conversation between Moore and the driver of the brown Cadillac. She then saw someone get out of the car, walk north, and shoot his gun in a west, then north, direction. Robinson ducked down on her porch because the shooter "was aiming towards Lamont Green where I was sitting on the porch * * *." When she looked up, the car was gone and she saw Tamara fall. Curtis Higgins, who resides at 6838 South Winchester, testified that he was on his porch when he saw a man standing outside the passenger side of a car parked near the grocery store. He then saw the man walking away from the car while "fanning" a gun. Frank Leon Coleman, who lived at 6812 South Winchester, testified that he was walking north on Winchester when he observed the brown Cadillac and saw Green about twenty feet behind him, coming from an alley onto South Winchester. After Moore pointed Green out, the shooting started and Coleman ducked down on Higgins' porch. He noted part of the car's license number as it drove away and subsequently gave the numbers to the police. Bryant Banks testified that he was in his front yard at 6835 South Winchester when he heard shots and turned to see a man pointing a gun and sweeping it from left to right. He then saw Green running away as the shooter followed him.
The next day, Robinson, Coleman, and Banks identified Freddie as the shooter. None of them could tell how many people were in the car with Freddie.
Detective Michael Kill testified that on June 15, 1987, defendant reported his car stolen to the Robbins police. Kill went to the Robbins police station and, after advising defendant of his Miranda rights, spoke with him about the shooting. Defendant stated that he assured Joe that he would "take care of it" after Joe told him about his fight with Green. He and Freddie went to 68th and Winchester to look for Green, and after they located him, they both exited the carand walked towards him. Defendant recalled that he stood between Freddie and Green when he heard three shots, turned, and saw Freddie shoot once more, using a silver .32 caliber revolver. He and Freddie got back in the car and drove away. Defendant dropped Freddie off at 70th and Loomis, took the car to his girl friend's house, and told her to take it to a relative's house in Park Forest. On cross-examination, Kill stated that defendant said that he reported his car stolen after he learned that someone had been shot and that he did not know that Freddie had a gun until he heard the shooting.
Outside the presence of the jury, but prior to Torrence's testimony, the trial Judge had ruled that defendant's conviction of armed robbery in Arkansas, which occurred while he was released on bond for the crime in this case, could not be explored by the State when questioning Torrence. However, the court permitted questioning related to defendant's plan to raise money to post bond for Freddie and to his intent to leave the jurisdiction, finding that that evidence was relevant and that it was indicative of a guilty conscience and intent to flee. The Judge permitted defendant to question Torrence regarding defendant's claim that he did not know why his brother shot like "a maniac," but barred any reference to defendant's having made that assertion while in an Arkansas penitentiary. He later instructed the jury not to consider evidence that defendant had been involved in other crimes, limiting it to the issue of "defendant's intent or knowledge."
Torrence then testified before the jury that several weeks after the shooting, defendant told him that he needed to raise a large amount of money in order that he go Freddie's bail and they could both flee the jurisdiction. At that time, defendant again showed him the white plastic bag containing guns. He was unsure if it also contained the pistols he saw on June 14, although while in Arkansas's with defendant he saw the silver plated .9 millimeter pistol defendant had put in his pants on the day of the shooting. Torrence stated that in Arkansas, defendant talked about the shooting with several people who were "smoking some reefer and standing around * * *" and that he stated that he "didn't understand why his brother had jumped out of the car and got to shooting like he was a maniac * * *." According to Torrence, defendant also stated that on June 14, he had brought two more guns to "South Winchester" in case they were needed. Torrence recalled that he and defendant test-fired a semi-automatic Uzi in Arkansas.
Joe testified as the sole witness for defendant. He stated that after his altercation with Green, he spoke with the police, but that they stated "they couldn't do anything about it." He contended thatwhen he and Crawford went to defendant's apartment, Crawford did not go up to the apartment. Joe also stated that he never entered the apartment, but spoke to his brother from the doorway. He said that he could see all of the people in the apartment and that only defendant and Freddie were there. He denied that defendant had a bag of guns and stated that neither defendant nor Freddie had a gun in his hands. Joe remembered that when defendant and Freddie left the apartment, defendant said that "he was going to talk to" Green and that Joe should go home. On cross-examination, Joe stated that his car was a high school graduation gift from defendant and that defendant and Freddie were angered when they saw that it had been damaged. He admitted that it was unusual for defendant to have his door open because of his dog, but he claimed that the dog was chained while he spoke with defendant.
Defendant was convicted by a jury of knowing or intentional murder, murder during a felony, and attempt murder. (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1-A(1)-(3), 8-4.) The trial Judge sentenced him to concurrent terms of forty years for murder and thirty years for attempt murder to be served consecutive to the twenty-year term he was serving in Arkansas. *fn2 The Judge denied defendant's motions for a new trial and to reduce his sentences, but he vacated the felony murder conviction. Defendant now appeals both his conviction and his sentences, alleging numerous errors of the trial court.
Defendant first argues that he was denied a fair trial when the trial court inserted accountability language into the second paragraph of each instruction (Ill. Rev. Stat. 1987, ch. 38, par. 5-2(c)), thereby misleading the jury into believing that defendant could be found guilty of intentional murder and attempt murder even if he lacked the requisite intent and had no knowledge of Freddie's criminal intent.
The State correctly asserts that defendant waived this issue by failing to object to the accountability instruction at trial and by omitting a claim of error regarding accountability in his post-trial motion. See People v. Jones (1986), 148 Ill. App. 3d 345, 354, 499 N.E.2d 510, 516, 101 Ill. Dec. 922 (holding that the defendant waived his claim of error regarding a deficient instruction when he failed to object at trial, tendera correct instruction, or mention the error in his post-trial motion); see also People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, 119 Ill. Dec. 265 ("Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.") (Emphasis in original).
In any event, this matter would not merit consideration even if we chose to exercise our discretion under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), because our supreme court has addressed the precise issue raised by defendant and has held that an accused can be held accountable for murder or attempt murder even if the State does not prove the requisite intent for those crimes. (See People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746, 77 Ill. Dec. 442; People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29.) The Terry defendants, like defendant at bar, argued that they could not be held legally accountable for murder when the State failed to show that they had the requisite intent. The supreme court disagreed, noting that the law on accountability had been construed as "incorporating the long established common-design rule that * * * provides 'when two or more persons engage in a common criminal design or agreement, any acts in furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.'" ( Terry, 99 Ill. 2d at 514, 460 N.E.2d at 749, quoting Kessler, 57 Ill. 2d at 496-97, 315 N.E.2d at 32.) And, in Kessler, the supreme court held that the defendant could be held legally accountable for attempt murder even though the State showed the intent required for only robbery and burglary. Kessler, 57 Ill. 2d at 496-98, 315 N.E.2d at 31-33; accord People v. Figures (1991), 216 Ill. App. 3d 398, 404, 576 N.E.2d 1089, 1093, 160 Ill. Dec. 135 (attempt murder); People v. Taylor (1990), 199 Ill. App. 3d 933, 940-41, 557 N.E.2d 917, 923, 145 Ill. Dec. 938, appeal denied (1990), 135 Ill. 2d 565, 564 N.E.2d 846 (murder) People v. Miscichowski (1986), 143 Ill. App. 3d 646, 655-56, 493 N.E.2d 135, 141-42, 97 Ill. Dec. 653 (involuntary manslaughter); People v. Rodriguez (1983), 117 Ill. App. 3d 761, 766-67, 454 N.E.2d 13, 16-17, 73 Ill. Dec. 269 (attempt murder); see Ill. Rev. Stat. 1987, ch. 38, par. 5-2(c).)
Despite this plethora of authority on the issue, defendant relies on People v. Nugin (1981), 99 Ill. App. 3d 693, 425 N.E.2d 1163, 54 Ill. Dec. 946 and People v. Allen (1983), 116 Ill. App. 3d 996, 452 N.E.2d 636, 72 Ill. Dec. 383, rev'd in part (1985), 109 Ill. 2d 177, 486 N.E.2d 873, 93 Ill. Dec. 340, in support of his contention that the jury was improperly instructed on accountability. In Nugin, the defendant claimed that the trial court erroneously gave an accountability instruction on an aggravated battery count when his defense was compulsion. The instruction informed the jurythat the State needed to prove "that the defendant or one for whose conduct the defendant is responsible did not act under compulsion." ( Nugin, 99 Ill. App. 3d at 696-97, 425 N.E.2d at 1165-66.) We held that the instruction constituted reversible error because "a person acting under compulsion cannot be held responsible for the criminal act of another since criminal responsibility contemplates an 'intent to promote or facilitate' the commission of a crime." Nugin, 99 Ill. App. 3d at 697-98, 425 N.E.2d at 1167-68, quoting Ill. Rev. Stat. 1979, ch. 38, par. 5-2(c); see also Allen, 116 Ill. App. 3d at 1006-08, 452 N.E.2d at 644-45 (holding that use of the same accountability instruction in an attempted armed robbery case was reversible error when the defendant's defense was compulsion).
The present case is readily distinguishable. Unlike Nugin and Allen, defendant in the case at bar did not put forth a compulsion defense which, if believed, would have negated any criminal intent. People v. Raya (1993), 250 Ill. App. 3d 795, 621 N.E.2d 222, 190 Ill. Dec. 353, appeal denied (1993), 153 Ill. 2d 567, 624 N.E.2d 814, also relied on by defendant, is similarly distinguishable. In that case, the defendant was convicted of unlawful possession of a controlled substance with the intent to deliver based on his asking a cocaine dealer to bring some of the drug to a party. We held that the defendant could not be held accountable for possession with intent to deliver, because this situation fit clearly within section 5-2(c)(2) of the accountability statute which states that a person is not accountable when her conduct is inevitably incident to the commission of the crime. ( Raya, 250 Ill. App. 3d at 799-801, 621 N.E.2d at 223-26; see also Ill. Rev. Stat. 1987, ch. 38, par. 5-2(c)(2).) We reasoned that if the Raya defendant were held legally accountable, then any person who sought drugs for personal use could be held accountable for the supplier's possession with the intent to deliver. ( Raya, 250 Ill. App. 3d at ...