People v. Sanders, 82-3089

• Court: United States Appellate Court of Illinois
• Writing for the Court: O'CONNOR; BUCKLEY, P.J., and McGLOON
• Citation: 129 Ill.App.3d 552,472 N.E.2d 1156,84 Ill.Dec. 760
• Parties: , 84 Ill.Dec. 760 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Carl SANDERS, Defendant-Appellant.
• Docket Number: No. 82-3089,82-3089
• Decision Date: 17 December 1984

Page 1156

472 N.E.2d 1156 129 Ill.App.3d 552, 84 Ill.Dec. 760 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Carl SANDERS, Defendant-Appellant. No. 82-3089. Appellate Court of Illinois,
First District, First Division. Dec. 17, 1984.

[129 Ill.App.3d 553]

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[84 Ill.Dec. 761] James J. Doherty, Public Defender of Cook County, Chicago (Donald S. Honchell, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty., Cook County, Chicago (Michael E. Shabat, Karen C. Writh, Pamela Martin, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

O'CONNOR, Justice:

Following a jury trial, defendant Carl Sanders was found guilty of two counts of attempt murder, of armed robbery, home invasion, and murder (Ill.Rev.Stat.1983, ch. 38, pars. 8-4, 18-2, 12-11 and 9-1(a), respectively), and sentenced to concurrent prison terms of 30 years for attempt murder, armed robbery and home invasion, and 40 years for murder. On appeal, defendant contends that: (1) the State failed to prove that either he or one for whom he was accountable entered the victim's home without authority; (2) the State failed to prove that either he or one for whom he was accountable took the victims' missing automobile; (3) the jury was improperly instructed on the charge of attempt murder; (4) the trial court's refusal to allow him to converse with defense counsel during a lunch recess denied defendant effective assistance of counsel; and (5) in the

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[84 Ill.Dec. 762] event the convictions for home invasion and armed robbery are reversed, resentencing is necessary.

Defendant was charged under the theory of accountability for offenses committed against Barbara McGee, Jessie McGee and Joseph Kneeland during the early morning hours of March 12, 1981. At trial, Barbara McGee testified that approximately 2:30 a.m. on the morning in question, she was awakened by the front door bell of her home at 8343 South Woods, Chicago. She answered the door and admitted her son-in-law, Gregory Macon, into the house. They talked for a few minutes after which Mrs. McGee permitted Macon to spend the night. Prior to that evening, Macon's wife and the four Macon children had been living with the McGees for approximately four months, [129 Ill.App.3d 554] during which time Macon would also sleep there on an "on and off" basis.

After returning to her bedroom which she shared with her husband, Jessie, Mrs. McGee was again awakened by Macon. He told her that he was having headaches and needed some medication. Jessie McGee gave Macon a couple of aspirin and he left, but returned a short time later to ask for some more. A few minutes later, Mrs. McGee was again awakened when Macon pushed open the bedroom door, turned on the light, and entered the room accompanied by Anthony Strong who was armed with a gun. Strong kept the gun pointed at the McGees while he and Macon demanded money. Through her bedroom doorway, Mrs. McGee could see defendant and Lorenzo Strong in the kitchen and another unidentified male on the back porch. Mrs. McGee had known defendant, Macon's nephew, for approximately 10 years.

Jessie McGee then walked into the dining room, took his wallet out of the buffet and gave it to Macon and Strong. When Mrs. McGee tried to get out of bed, Macon told her to sit down and proceeded to tie her hands and feet with a rope. Jessie McGee told Macon that there was more money downstairs in a pair of beige shoes. When none of the intruders could find the money downstairs, they sent Joseph Kneeland down to look for it. Meanwhile, Macon carried Mrs. McGee to the middle bedroom and raped her. When the rope came loose, he retied her, raped her again, and left. She could hear the others, including defendant, hollering about the money and walking back and forth. Macon eventually returned to the bedroom, threw a telephone cord around Mrs. McGee's neck and choked her until she lost consciousness. When she regained consciousness, she heard her husband calling her name from a distance, after which she heard someone enter the room, felt a thump on her head, and again lost consciousness. When she regained consciousness, Mrs. McGee called to her son who came into the bedroom, cut her loose, and then ran next door to get help. She again lost consciousness and did not regain it until the police were there and she was being put into an ambulance. At the hospital, Mrs. McGee learned that in addition to the neck wounds, she had also received two gunshot wounds to the back of her head.

Mrs. McGee further testified that at the time of the incident, she owned a yellow and brown 1976 Cadillac. When she went to bed on the evening of March 11, the car was parked in front of her house. After the incident, the car, a color television, tape recorder, jewelry and wedding rings, were missing.

[129 Ill.App.3d 555] Next, Joseph Kneeland, Barbara McGee's son, testified that when he arrived home from school approximately 3:15 p.m. on March 11, 1981, Macon, Lorenzo Strong and defendant were talking to his father. He heard his father tell them that he wanted them to leave, which they did. Kneeland had known both Macon and defendant for about 12 years and knew that defendant was Macon's nephew. Kneeland further stated that early the next morning, he was awakened by Anthony Strong who was standing next to him with a gun pointed at him. Strong told Kneeland to put the blanket over his head and to walk out into the hallway. While standing in the hallway, he heard his mother ask Macon what was wrong, heard his father tell the intruders

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[84 Ill.Dec. 763] to check his shoes downstairs, and heard footsteps go down and back up the basement stairs, followed by defendant's voice saying that there were no beige shoes and no money downstairs. The intruders then told Kneeland to go downstairs and look for the shoes. When he took the blanket off his head, he saw Macon, Anthony Strong and defendant who was standing next to the buffet in the dining room with something silver in his hand. When Kneeland returned from downstairs without having found any money, he saw Lorenzo Strong and defendant in the kitchen. He and his father were told to stand near the entrance to the basement. At that time, defendant was standing in the basement doorway with a gun pointed at Kneeland, holding a newspaper to obscure part of his face. However, Kneeland recognized his voice. Macon then joined Kneeland and his father and told them to go downstairs. Kneeland went first, followed by his father. Macon stood at the top of the stairs, holding a gun and carrying a pillow under his arm. Suddenly Kneeland heard a "pow" sound, turned around, and saw his father falling down the stairs. When he started to run, he was hit by a bullet in the shoulder and fell. Macon then walked over to where Kneeland was lying, shot him behind the right ear, and went back upstairs.

When Kneeland's father began gurgling his wife's name, Macon came back downstairs. Kneeland heard another "pow," after which his father was silent. Shortly thereafter, all the upstairs footsteps ceased and Kneeland went upstairs to look for his mother. When he went to the living room and looked outside for the car, he noticed that it was gone. As he was going back toward the basement, he heard his mother's voice coming from his bedroom, and found her in there, tied up and with cuts around her neck. After carrying his mother to the dining room, Kneeland went next door to call the police. When the police arrived, Kneeland told them that Macon, defendant and two other males had robbed them.

[129 Ill.App.3d 556] Thereafter, a stipulation was entered into that if Dr. Teslow of the Office of the Medical Examiner were called to testify, he would state that Jessie McGee died of a gunshot wound to the head and to the brain.

Next, Officer David Dioguardi of the Chicago Police Department testified that when he arrived at the McGee home on the morning of March 12, 1981, the injured were being removed and the house was in a general ransacked condition. After visiting Kneeland in the hospital, Dioguardi proceeded to an address given to him by Kneeland where he arrested Macon. He then drove to defendant's residence where he placed defendant under arrest. While in defendant's bedroom, Dioguardi asked him if he had any weapons. Defendant hesitated, looked toward the end of his bed where he was sitting and said "No." Dioguardi then told defendant to stand up while he searched the bed. In doing so, he recovered a .32 revolver. After Macon and defendant were transported to headquarters, Dioguardi proceeded to a home on 105th Place in Chicago where he arrested Anthony Strong, Lorenzo Strong and Marvin Hammond, and recovered two .32 caliber revolvers with bullets. On cross-examination, Dioguardi stated that the McGees' missing automobile was found parked five or six doors west of Macon's house.

Next, Sergeant Vincent Lomoro of the Chicago Police Department testified that the bullets removed from Barbara McGee and Jessie McGee were .32 caliber bullets.

Officer Fred Harris, a latent fingerprints examiner for the Chicago Police Department, testified that when he compared a latent palm print recovered from the right rear window of the McGees' Cadillac on March 13, 1981, to a reproduction of defendant's left palm print he found 10 points of identification. A stipulation was then entered into that the latent palm print was made by defendant. On cross-examination, Harris stated that he could not discern when the print had been left on the car and that he did not examine any other objects

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[84 Ill.Dec. 764] for fingerprints. The State then rested its case.

Defendant testified that on the afternoon of March 11, 1981, he and Lorenzo Strong accompanied Macon to the McGee home in order to help Macon move some of his belongings from the McGee home back to his own home. When they arrived at the McGees' house, Macon...