People v. Washington, Nos. 82-1133

• Court: Illinois Appellate Court
• Writing for the Court: PERLIN
• Citation: 468 N.E.2d 1285,82 Ill.Dec. 505,127 Ill.App.3d 365
• Parties: , 82 Ill.Dec. 505 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Graylin WASHINGTON (Impleaded), Melvin Spencer (Impleaded) and George Davis (Impleaded), Defendants-Appellants.
• Decision Date: 04 September 1984
• Docket Number: 82-1134 and 82-1306,Nos. 82-1133

Page 1285

468 N.E.2d 1285 127 Ill.App.3d 365, 82 Ill.Dec. 505 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Graylin WASHINGTON (Impleaded), Melvin Spencer (Impleaded)
and George Davis (Impleaded), Defendants-Appellants. Nos. 82-1133, 82-1134 and 82-1306. Appellate Court of Illinois,
First District, Second Division. Sept. 4, 1984.

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[127 Ill.App.3d 368] [82 Ill.Dec. 508] Steven Clark, Deputy Defender, Patricia Unsinn, Asst. Appellate Defender, and I. Bruce Wexler, Chicago, for defendants-appellants.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat, Jeanette Sublett and Frank G. Zelezinski, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

Defendants were tried before a single jury on charges of murder (Ill.Rev.Stat.1981, ch. 38, par. 9-1), armed robbery (Ill.Rev.Stat.1981, ch. 38, par. 18-2), attempt murder (Ill.Rev.Stat.1981, ch. 38, par. 8-4), and aggravated battery (Ill.Rev.Stat.1981, ch. 38, par. 12-4). The jury was also given the instructions for voluntary manslaughter. Defendants were convicted on all charges including voluntary manslaughter. Davis was sentenced to concurrent extended terms of 80 years for murder, 60 years for attempt murder, 60 years for armed robbery and 10 years for aggravated battery. Washington was sentenced to consecutive terms of 25 years for murder, 25 years for armed robbery and 5 years for aggravated battery. Spencer was sentenced to concurrent extended terms of 50 years for murder, 40 years for attempt murder and armed robbery and 10 years for aggravated battery.

Defendants raise the following issues in this appeal: (1) whether the evidence was sufficient to sustain Spencer's convictions on the basis of accountability; (2) whether the trial court erred in "merging" defendants' convictions for voluntary manslaughter into their convictions for murder; (3) whether the evidence was sufficient to sustain the convictions for armed robbery; (4) whether the defendants were properly convicted of attempt murder as to one victim and voluntary manslaughter as to the other victim; (5) whether the jury was properly instructed with regard to defendants' claim of self-defense; (6) whether the trial court erred in admitting evidence of defendants' prior criminal activity; (7) whether certain comments by the prosecutor deprived defendants of a fair trial; (8) whether the trial court erred in admitting certain weapons into evidence; [127 Ill.App.3d 369] (9) whether the statement of a victim to police was properly admitted into evidence as a spontaneous declaration; (10) whether Davis was denied the effective assistance of counsel; (11) whether the trial court considered improper evidence during defendants' sentencing hearing; (12) whether the trial court erred

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[82 Ill.Dec. 509] in imposing multiple extended term sentences on Davis and Spencer; (13) whether defendants were convicted of multiple crimes based on the same act.

Prior to trial, defendants' motions to quash their arrests and to suppress evidence were denied.

At trial, Linda Dates testified: On May 6, 1981, at approximately 1:30 a.m. she was in her second floor apartment at 1440 South Kedzie in Chicago with her roommates, Charlie Cox and Lex Leaks, when the doorbell rang. At that time Dates was in the dining room watching television, Cox was in the same room sleeping on the sofa and Leaks was in a rear bedroom. Dates looked out the window and saw three men standing near the front door of the apartment. She identified the three men as the defendants. ¹ She had seen Davis and Spencer on prior occasions, but not Washington.

Leaks dropped a key down to the men at the door. The men came up to the apartment. They did not speak upon entering the apartment. Dates returned to the dining room and awakened Cox. Cox then went to the rear of the apartment where the visitors were. Dates went to a bedroom in the front part of the apartment. On her way, she saw Spencer and Washington, but did not notice Davis.

As Dates closed the door to the front bedroom, she heard two shots. She testified that she considered jumping out the window, but instead hid in the bedroom closet, covering herself with clothing. She then heard another shot followed by the sound of approaching footsteps. She heard the door to the bedroom being kicked open and then Spencer's voice say "come from under that bed, girl, before I shoot." She remained in the closet until the police arrived ten minutes later. She testified that when the police arrived, she was hysterical and could not recall what she had told the police. She denied telling the police that she had heard the shots "5 to 10" minutes after she entered the bedroom.

Charlie Cox testified: When Dates woke him and told him some [127 Ill.App.3d 370] men were in the apartment, he went to the back bedroom. He saw his roommate Leaks with Washington and Spencer. When Cox entered the bedroom, Spencer grabbed him from behind, and the two of them struggled. Spencer's two hands were encircled around Cox's stomach. As they tussled, Cox saw Davis point a .9 millimeter pistol at him. Washington then pulled an automatic pistol from his waist and also pointed it at Cox. There was no conversation. Davis and Washington began to shoot. Two or three shots were fired; Cox was hit in the elbow and stomach (near Spencer's encircling hands) and fell to the ground.

"Seconds" after falling, Cox felt the body of Leaks next to his. He heard footsteps moving toward the front of the house and then return. Cox "felt" someone take from him the jewelry he was wearing, including a ring and some chains, and about $100. When he heard the men going down the apartment stairs, Cox stood up and telephoned someone from his family. He did not recall whether he called the police. Cox then briefly went upstairs to the third floor apartment. When the police arrived, Cox identified the three defendants as his assailants. While in the hospital a few days later, he also identified their pictures.

Dr. George London testified: He is a surgeon at Mt. Sinai Hospital and he operated on Charlie Cox. Cox had been shot twice; one bullet passed through his body on the left side of the abdomen, and the other lodged near his spine. Dr. London did not remove the latter bullet because of the possible dangers in such an operation.

Edward R. Donoghue, Jr. testified: He is a physician and forensic pathologist employed by the Cook County Medical Examiners Office. He performed the autopsy on Lex Leaks. Leaks was killed by a single

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[82 Ill.Dec. 510] bullet which entered his chest on the left side of the body, perforating the "main artery of the aorta" and the kidney and liver. The bullet had traveled "downward."

Chicago Police Officer Daniel McGovern testified: On the date in question he and his partner responded to the call of a man shot at 1440 South Kedzie. Upon arriving at the apartment two or three minutes after receiving the call, they found the body of Lex Leaks, and heard Dates repeatedly yell to Leaks' brother, Kermit, who was then present, that Davis had shot Leaks. Cox told the officers that Davis and two other persons had shot him.

Following a discussion with Kermit Leaks, McGovern, his partner officer Trepac and Kermit Leaks proceeded to an apartment at 3317 West Madison in Chicago. They requested a back-up unit, and when [127 Ill.App.3d 371] plainclothes officers Wolverton and Kurtovich arrived, the officers entered the apartment building. They saw Washington on a stairway landing aiming a .45 automatic at them. Washington turned and ran. The officers followed him and next saw him standing in a hallway with Spencer. Spencer was holding a .30 caliber sawed-off rifle and had a .9 millimeter pistol in his pocket. Spencer had been shot in both hands. Spencer and Washington surrendered and were arrested.

Chicago Police Officer Donald Wolverton testified: After Spencer and Washington were arrested, he went upstairs to the third floor staircase landing in the building. He there saw Davis, who dropped objects he was holding in his hand, and ran into an apartment and closed the door behind him. Davis had dropped a white plastic bag which contained a .30 caliber carbine rifle, a loaded .9 millimeter pistol and a .38 revolver. Wolverton waited for assistance, and then entered the apartment into which Davis had fled. The apartment was empty. There was a stairway leading down to the apartment below. When Wolverton went down the stairs to the lower apartment, he found that Davis had been arrested there by other officers.

Police Officer Larry Puzas testified: When he arrived at the apartment on West Madison, he saw Davis emerge from a second floor apartment with a shotgun. Puzas followed Davis back into the apartment and, at the officer's order, Davis dropped the shotgun and surrendered.

Officer Wolverton testified that after the three defendants were in custody, he recovered from Washington a key on a chain which unlocked the front door to the apartment where the shootings had occurred. At the murder scene, a spent bullet and two cartridge casings were recovered from the rear bedroom. The bullet had been fired from the .9 millimeter pistol which was found in the plastic bag dropped by Davis. Human blood found at the murder scene was of an undetermined type. Blood found on the jacket worn by Washington was type B. Leak's blood was type O.

Several pieces of jewelry were recovered from the defendants, including a ring and two chains. $114 in cash was found in Washington's possession. Dates and Cox identified the ring and one of the chains as belonging to Leaks; the other chain was Cox's.

Richard Chenow, a Chicago police officer employed as a firearms examiner, testified that the .9 millimeter bullet recovered from the crime scene had been fired from one of the two .9 millimeter pistols recovered from defendants. He stated that it was "absolutely not" possible...