No. 2--95--0476
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
v. ) No. 94--CF--1458
SHARIFF G. BANKS, ) Honorable
) Christopher C. Starck,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE THOMAS delivered the opinion of the court:
The defendant, Shariff G. Banks, was indicted by grand jury
with five counts of first degree murder (720 ILCS 5/9--1(a)(1),
(a)(2), (a)(3) (West 1994)) in connection with the shooting death
of Mary Davis. Following a jury trial in the circuit court of Lake
County, the defendant was found guilty on three of those counts and
sentenced to 50 years in prison. We affirm.
FACTS
The facts relevant to our decision are as follows. The
defendant was arrested and charged with first degree murder on July
22, 1994. On August 17, 1994, he was indicted on five counts of
first degree murder. Prior to trial, the defendant moved to
suppress oral, written, and videotaped statements he made to the
police subsequent to his arrest. Following an evidentiary hearing
on the motion, the motion was denied. The case proceeded to a jury
trial in October 1994.
At trial, Mark Tkadletz, a Waukegan police officer, testified
that he was working on July 20, 1994. During his shift, he
received a call concerning shots fired in the 1600 block of Lyons
Court, in Waukegan, Illinois. While en route to that location, he
was informed of a possible accident in the 1700 block of Lyons
Court. Upon arriving at his destination, he observed that a
vehicle had crashed into a house at 1713 Lyons Court. When he
approached the vehicle, he observed a female with a bleeding head
wound slumped over in the backseat of the vehicle.
Lakesha Morgan testified that she was in the eighth grade and
attended school with her friend, Mary Davis. On the evening of
July 20, 1994, she was riding with Davis in a gray, four-door
vehicle being driven by Daryl Johnson. Johnson was a member of the
Gangster Disciples gang. At some point, Davis asked to be taken to
her home on Lyons Court. Morgan was seated in the front passenger
seat, and Davis was seated in the backseat on the driver's side.
As they traveled on Lyons Court, another vehicle crashed into the
front of Johnson's vehicle. According to Morgan, she heard shots
from the front. Johnson put his vehicle into reverse, and it hit
another vehicle from behind. She then heard shots from the rear.
Johnson turned the wheel sharply and his vehicle hit a house.
Johnson and Morgan ran from the vehicle. Morgan testified that she
never saw Johnson put his hands out the window of the vehicle and
never saw a gun in the vehicle.
The State called a series of witnesses who testified as to
what they heard or observed in the vicinity on July 20, 1994.
Viola Banks testified that sometime between 10:30 p.m. and 11 p.m.
she heard shots and then a vehicle crashed into her house at 1713
Lyons Court. Maria Henderson, who resided at 1720 Lyons Court,
testified that around 10:30 p.m. she heard shots and observed a
vehicle crash into her neighbor's house. Herman Ray, who resided
at 1526 Lyons Court, testified that he heard shots, screeching
tires, the roar of car engines, and a crash. Nelson Tate, of 1712
Lyons Court, testified that he heard shots, tires screeching, and
a crash. Robert Chambers, who resided at 1618 Lyons Court,
testified that he heard a bang and shots and then observed a
vehicle back into another. Valerie Cooper, who resided at 1602
Lyons Court, testified that she was beginning to back out of her
driveway at 10:45 p.m. when a gray vehicle drove by. She heard
shots and observed the same gray vehicle backing up past her
driveway. She did not see anybody with their hands out the window
of the gray vehicle or anything sticking out the window.
Kanesha Davis, the older sister of the 15-year-old victim,
next testified. She had been riding in Johnson's vehicle earlier
in the evening on July 20, 1994. When she was dropped off at a
friend's house, her sister was still in the vehicle. As she later
walked toward her home at 1522 Lyons Court, she heard a screech and
shots.
Lonnie Brown, a North Chicago police officer, testified that
he was working the midnight shift on July 21, 1994. During his
shift, he received a call concerning a drive-by shooting. In
responding to the call, he observed a green vehicle matching the
description of the vehicle involved in the shooting. He observed
the passenger of the vehicle extend an arm out of the vehicle and
fire shots at a pedestrian. He followed the vehicle, which
eventually lost control and hit a telephone pole. Four subjects
ran from the vehicle. In conducting a search of the area, Brown
found a semiautomatic pistol loaded with what appeared to be a
.380-caliber round of ammunition.
Donald Meadie, a Waukegan police officer, testified that he
stopped a vehicle on July 22, 1994. The vehicle had no license
plates and was occupied by two black males. One of the occupants
of the vehicle was the defendant. Both occupants were taken to the
police station.
Dennis Cobb, a Waukegan police officer, testified that he was
directed to 1713 Lyons Court on July 20, 1994. As an evidence
technician, he examined the gray vehicle that hit the house. He
observed a bullet hole in the front fender behind the wheel well of
the driver's side area, a bullet hole to the left center of the
back door of the driver's side, and a dent just below the driver's
side door handle where a bullet had hit and ricocheted. He
recovered the bullet that caused the hole in the front fender and
a bullet that fell to the ground when he opened the rear driver's
side door. Upon examining the passenger side of the vehicle, he
observed blood stains in the backseat and a bullet hole in the
front-seat headrest. According to Cobb, the bullets which hit the
front fender and the back door of the driver's side came from the
front and somewhat to the side of the vehicle. The bullet hole
that went through the headrest also indicated the bullet came from
the front and somewhat to the side of the vehicle.
James McCarthy, a Waukegan police officer, testified that the
gun recovered from the green vehicle on July 21, 1994, was a .380-
caliber automatic handgun. He retrieved two rounds of live
ammunition from the gun. McCarthy also testified that he attended
the autopsy of the victim, where a projectile was recovered from
her head wound and turned over to him.
Robert Kerkorian, a Waukegan police detective, testified that
he interviewed the defendant at the police station on July 22,
1994. The defendant told him that he had been shot in the chest
with a shotgun during the previous week. He believed he had been
shot by Johnson, a member of the Gangster Disciples gang. The
defendant was a member of the Vice Lord gang. On July 20, 1994,
the defendant was with some friends when they observed a gray
vehicle being driven by Johnson. The defendant and his friends got
into two vehicles they had rented from a "dope fiend" and followed.
He was in the front passenger seat of a brown vehicle, following
behind Johnson's vehicle as it traveled on Lyons Court. Some of
the defendant's friends were in a green vehicle, which turned down
another street. The gray vehicle eventually came up on the green
vehicle. The vehicles stopped briefly, and the gray vehicle went
into reverse and struck the brown vehicle. According to the
defendant, Johnson pointed something out the window. The defendant
then took a .38-caliber revolver in his possession and fired
approximately five shots from the brown vehicle at the gray vehicle
as it passed by the brown vehicle in reverse. The defendant told
Kerkorian that he was not trying to kill or hurt anybody and did
not see Davis in the backseat. The defendant later turned the
weapon over to a friend and never saw it again.
The parties entered stipulations into evidence. William
Wilson, a forensic scientist with the Northern Illinois Police
Crime Laboratory, would testify concerning paint samples collected
from the green, gray, and brown vehicles. Robert Wilson, a
firearms examiner with the Northern Illinois Police Crime
Laboratory, would testify that he examined the bullet recovered
from Davis and two bullets recovered from the gray vehicle. He
would further testify that the bullets were .38 or .357 caliber and
that the bullets were fired from the same gun but not from the
.380-caliber gun recovered. Dr. John Teggatz, a forensic
pathologist, would testify that he performed the autopsy on Davis
and that she died of cerebral lacerations and contusions caused by
a gunshot wound to the head. The defense presented no additional
evidence.
The jury found the defendant guilty of first degree murder as
charged in count I and of first degree felony murder as charged in
counts IV and V of the indictment. The defendant was later
sentenced to 50 years' imprisonment. He filed a timely appeal.
ANALYSIS
On appeal, the defendant raises three issues for our review.
He contends that (1) he was denied his constitutional right to a
fair trial as a result of trial court errors with respect to jury
instructions; (2) he was improperly convicted of first degree
felony murder premised on mob action; and (3) the first degree
murder convictions must be reversed because the State failed to
prove him guilty beyond a reasonable doubt.
I. Jury Instructions
The defendant initially contends that he was denied his
constitutional right to a fair trial as a result of trial court
errors with respect to jury instructions. These alleged errors
include: (1) the issuance of too many definitional and issues
instructions relating to first degree murder; (2) improper
instruction under the felony murder statute; and (3) the failure to
render all verdict forms to the jury.
It is well established that every litigant is entitled to have
the jury instructed as to the law governing the case. Malek v.
Lederle Laboratories, 125 Ill. App. 3d 870, 872 (1984). The
instructions must be sufficiently clear so as not to confuse or
mislead the jury. Malek, 125 Ill. App. 3d at 872. According to
Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)), juries in
criminal cases must be instructed pursuant to the Illinois Pattern
Jury Instructions, Criminal (IPI Criminal), unless the court
determines that the particular instruction does not accurately
state the law. See People v. Haywood, 82 Ill. 2d 540, 545 (1980);
People v. Testin, 260 Ill. App. 3d 224, 230 (1994). Absent a clear
abuse of discretion, a trial court's determination of the form in
which an instruction is given will not be disturbed on review.
People v. Curtis, 262 Ill. App. 3d 876, 890 (1994).
We first examine the alleged issuance of too many definitional
and issues instructions relating to first degree murder.
The case at hand proceeded to jury trial in October 1994. At
that time, the definitional and issues instructions relating to
first degree murder were set forth in IPI, Criminal, as Nos. 7.01A
and 7.02A, respectively. Illinois Pattern Jury Instructions,
Criminal, Nos. 7.01A, 7.02A (3d ed. 1992) (IPI Criminal 3d). In
instructing the jury, the trial judge gave two definitional and two
issues instructions, over defense counsel's objections. The
defendant contends that the trial judge should have rendered only
one definitional and one issues instruction. We agree.
The language of IPI Criminal 3d Nos. 7.01A and 7.02A suggests
the giving of one definitional and one issues instruction relating
to first degree murder, regardless of how many counts of first
degree murder with which a defendant is charged. IPI Criminal 3d
Nos. 7.01A, 7.02A. Citing People v. Johnson, 250 Ill. App. 3d 887
(1993), the Committee Note to IPI Criminal 3d No. 7.02A expressly
states that only one issues instruction should be given to the jury
to explain the issues of first degree murder; and that separate
issues instructions for each of the different ways first degree
murder can be charged under section 9--1(a)(1) through (a)(4) of
the Criminal Code of 1961 (Code) (720 ILCS 5/9--1(a)(1) through 9--
1(a)(4) (West 1994)) are not to be given. IPI Criminal 3d No.
7.02A, Committee Note at ___ (Supp. 1996). While committee
comments are not the law, the trial court is allowed to deviate
from the suggested instructions and format only where necessary to
conform to unusual facts or new law (People v. Whitaker, 263 Ill.
App. 3d 92, 98 (1994)), neither of which is present here.
In Johnson, the defendant argued that the trial court erred in
giving the jury five instructions on the issues of first degree
murder, one for each count of murder. The Appellate Court, Fourth
District, agreed that only one issues instruction should have been
provided to the jury. However, it found that the defendant failed
to preserve the issue for review and the error did not amount to
plain error. Johnson, 250 Ill. App. 3d at 903-04. The plain error
exception to the waiver rule permits a reviewing court to consider
issues waived for the purposes of review when the evidence in a
criminal case is closely balanced, or the error is so fundamental
and of such magnitude that the accused was denied a fair trial.
People v. Lucas, 151 Ill. 2d 461, 482 (1992). The Johnson court
did not find the evidence to be closely balanced or to have denied
the accused a fair trial. Johnson, 250 Ill. App. 3d at 905.
Accordingly, we find the trial court erred in giving multiple
definitional and issues instructions of first degree murder.
Unlike in Johnson, we find no waiver because the defendant objected
to the instructions given. As in Johnson, however, we find the
error in rendering multiple instructions to have been harmless
because the error did not deny the defendant a fair trial. See
Johnson, 250 Ill. App. 3d at 905.
We next examine the alleged improper instruction under the
felony murder statute.
In the case sub judice, the defendant was charged with two
counts of first degree murder under the felony murder statute. 720
ILCS 5/9--1(a)(3) (West 1994). The forcible felonies alleged in
the indictment were that of attempted first degree murder of Daryl
Johnson (count IV) and mob action (count V). IPI Criminal No. 24--
25.10 addresses when a forcible felon is not entitled to use force.
IPI Criminal 2d No. 24--25.10 (2d ed. 1981) (IPI Criminal 2d)
provides:
"A person is not justified in the use of force if he is
[(attempting to commit) (committing) (escaping after the
commission of)] a forcible felony."
The Committee Note to that version of No. 24--25.10 expressly
states that the trial court is to give an instruction defining
"forcible felony." IPI Criminal 2d No. 24--25.10, Committee Note,
at 557.
The defendant contends that the trial court erred in its
rendering of jury instructions concerning IPI Criminal No. 24--
25.10 because the instructions improperly replaced the words
"forcible felony" with "mob action" and with "attempted first
degree murder of Daryl Johnson". Citing People v. Payne, 194 Ill.
App. 3d 238 (1990), and People v. Fernandez, 240 Ill. App. 3d 518
(1992), the defendant also contends that the trial court erred in
failing to define "forcible felony."
The defendant's contentions are without merit because he
erroneously relies on the language of IPI Criminal No. 24--25.10
found in the second edition of IPI Criminal. At the time of the
October 1994 trial, the jury should have been instructed, and was
instructed, pursuant to the third edition of IPI Criminal No. 24--
25.10.
IPI Criminal 3d No. 24--25.10 reads as follows:
commission of)] ____________."
The Committee Note to IPI Criminal 3d No. 24--25.10 expressly
states that the trial court is to insert in the blank the forcible
felony committed or attempted. It does not require the giving of
a definition of "forcible felony." IPI Criminal 3d No. 24--25.10,
Committee Note, at 320.
Because the instruction which was given accurately followed
the current IPI Criminal version in effect at the time of trial, we
conclude that the trial court gave a proper instruction. See
Curtis, 262 Ill. App. 3d at 890. The trial court properly inserted
the terms "first degree murder" and "mob action" and need not have
given a definition of "forcible felony."
Finally, we examine the alleged failure to render all verdict
forms to the jury.
The defendant contends that the jury should have received 10
verdict forms, but that there are only 8 such forms in the record.
He argues that the two missing verdict forms, both relating to
involuntary manslaughter, precluded the jury from finding him
guilty of a lesser offense. Citing People v. Cadwallader, 181 Ill.
App. 3d 488 (1989), he demands a new trial.
The State asserts at the outset that this issue has been
waived because the defendant failed to preserve the issue by
raising it in his motion for a new trial. As a general rule, the
failure to raise an issue in a written motion for a new trial
results in a waiver of that issue on appeal. People v. Enoch, 122
Ill. 2d 176, 186 (1988). Having reviewed the defendant's motion
for a new trial, we agree with the State that the defendant failed
to raise this issue below. Accordingly, we deem this issue waived.
Had we not done so, we would, nevertheless, resolve the issue in
favor of the State.
Upon careful review, we agree with the defendant that the
record contains only 8 of the 10 verdict forms. However, we
disagree that both of the missing verdict forms relate to
involuntary manslaughter. One of the missing verdict forms offered
a finding of guilt as to involuntary manslaughter during an attempt
to kill Daryl Johnson, while the other offered a finding of not
guilty of first degree murder during the commission of mob action.
We also disagree that a new trial is warranted under Cadwallader.
The defendant cites that case as requiring a new trial where there
is an improper reading of jury instructions. Cadwallader is
inapplicable to the case at hand because the case at hand does not
present a question concerning the issuance of inadequate
instructions. Rather, the question is whether the jury received
all the necessary verdict forms.
Although we have stated that the record only contains 8 of the
10 verdict forms, we presume that the jury received all 10 forms.
See People v. Jones, 196 Ill. App. 3d 937, 960 (1990)("where a
record is incomplete, or is silent, a reviewing court will invoke
the presumption that the trial court ruled or acted correctly").
Having carefully reviewed the entire record, including the reports
of proceedings, we note that at the close of the evidence the trial
judge rendered a forms of verdict instruction to the jury that
referred to all 10 verdict forms. The trial judge also then read
each of the 10 verdict forms into the record. In light of these
findings, we conclude that the trial court rendered all 10 verdict
The defendant also argues that the cumulative effect of the
errors cited with respect to jury instructions constitutes
reversible error. The resolution of the general argument that the
cumulative effect of alleged errors warrants a reversal depends
upon the court's evaluation of the individual errors. Where the
alleged errors do not amount to reversible error on any individual
issue, there generally is no cumulative error. People v. Albanese,
102 Ill. 2d 54, 82-83 (1984). Given our disposition of each of the
defendant's arguments, we conclude that their cumulative effect
does not warrant reversal of the defendant's conviction.
II. Felony Murder Premised on Mob Action
The second contention of the defendant on appeal is that he
was improperly convicted of first degree felony murder premised on
mob action.
counts of first degree murder under the felony murder statute. 720
ILCS 5/9--1(a)(3) (West 1994). The felony murder statute provides:
"(a) A person who kills an individual without lawful
justification commits first degree murder if, in performing
the acts which cause the death:
* * *
(3) he is attempting or committing a forcible felony
other than second degree murder." 720 ILCS 5/9--1(a)(3)
(West 1994).
Forcible felony is defined in section 2--8 of the Code as follows:
" 'Forcible felony' means treason, first degree murder, second
degree murder, aggravated criminal sexual assault, criminal
sexual assault, robbery, burglary, residential burglary,
aggravated arson, arson, aggravated kidnaping, kidnaping,
aggravated battery resulting in great bodily harm or permanent
disability or disfigurement and any other felony which
involves the use or threat of physical force or violence
against any individual." 720 ILCS 5/2--8 (West 1994).
One of the forcible felonies alleged in the defendant's indictment
was that of mob action (count V) (720 ILCS 5/25--1(a)(1) (West
1994)).
The defendant initially argues that mob action cannot serve as
the predicate felony for felony murder because (1) mob action is
not specifically listed among the forcible felonies in section 2--8
of the Code; and (2) mob action under section 25--1(a)(1) of the
Code runs to a disturbance of the public peace whereas a forcible
felony concerns violence to an individual. We are not persuaded by
either of these arguments.
Concerning the first argument, while mob action is not
specifically listed among the forcible felonies in section 2--8 of
the Code (720 ILCS 5/2--8 (West 1994)), the definition of forcible
felony is not limited to those listed. Rather, the definition
expressly includes "any other felony which involves the use or
threat of physical force or violence against any individual." 720
ILCS 5/2--8 (West 1994).
It is worth noting that, even if we had not found mob action
to be an appropriate predicate felony for felony murder, the jury
returned a finding of guilt on three counts of first degree murder.
First degree murder is unquestionably a proper predicate forcible
felony. See 720 ILCS 5/2--8 (West 1994).
Concerning the second argument, although section 25--1(a)(1)
of the mob action statute refers to "the use of force or violence
disturbing the public peace" (emphasis added) (720 ILCS 5/25--
1(a)(1) (West 1994)), section 25--1(a)(1) has been used to charge
defendants with mob action which involved violence against an
individual. See People v. Fauber, 266 Ill. App. 3d 381 (1994). In
Fauber, the defendant was charged with mob action under section 25-
-1(a)(1) of the Code, as was the defendant in this case. There,
the defendant and at least one other attacked a fellow high school
student. The Fauber court affirmed the jury's conviction of the
defendant for mob action. In addition, section 25--1(d) of the mob
action statute contemplates mob action as involving "violence to
the person or property of another." (Emphasis added.) 720 ILCS
5/25--1(d) (West 1994). Moreover, IPI Criminal 3d No. 19.03
defines mob action as requiring that "one of the participants in
the mob action violently inflicts injury to the [(person)
(property)] of another." IPI Criminal 3d No. 19.03.
The defendant next argues that mob action requires intent or
knowledge, which were not present here.
Pursuant to People v. Land, 169 Ill. App. 3d 342, 356-57
(1988), the application of the felony murder rule is limited to
those predicate felonies with an intentional or knowing state-of-
mind requirement. Here, the defendant argues that the events at
issue did not involve an intentional or knowing state of mind. He
claims that the shots he fired in the direction of the gray vehicle
were strictly the result of his feeling the need to defend himself
once the gray vehicle backed up into his vehicle and he observed
Johnson point something out the window. We find that the jury
could have found the evidence to support a contrary conclusion.
The defendant told the police that he had been shot in the chest
with a shotgun during the previous week and that he believed the
shooter was Johnson. When the defendant thereafter saw a gray
vehicle being driven by Johnson, he and some friends followed after
Johnson in two separate vehicles. Eventually, the green and brown
vehicles sandwiched the gray vehicle. The gray vehicle was rammed
and fired upon from the direction of the green vehicle. Only after
this sequence of events did the gray vehicle back into the
defendant's vehicle. Under these circumstances, a jury could have
concluded that the attack on Johnson, which led to the death of
Davis, was premeditated in retaliation for the earlier shooting of
the defendant and was not merely a reckless act.
III. Guilt Beyond a Reasonable Doubt
The third contention of the defendant on appeal is that the
first degree murder convictions must be reversed because the State
failed to prove him guilty beyond a reasonable doubt.
A conviction must be based upon proof beyond a reasonable
doubt. People v. Foules, 258 Ill. App. 3d 645, 653 (1993). The
reviewing court's duty is not to ask itself whether it believes the
evidence establishes guilt, but whether the evidence viewed in a
light most favorable to the prosecution would allow any rational
trier of fact to find the essential elements of the crime proved
beyond a reasonable doubt. Foules, 258 Ill. App. 3d at 653. A
reviewing court may not substitute its judgment for that of the
trier of fact on questions involving the weight of the evidence or
the credibility of the witnesses. People v. Winfield, 113 Ill.
App. 3d 818, 826 (1983). The reversal of a conviction is required
only where the defendant can show that the evidence is so
unsatisfactory or improbable as to create a reasonable doubt of the
defendant's guilt. People v. Murray, 194 Ill. App. 3d 653, 656
(1990).
The defendant first argues that his first degree murder
conviction should be reversed because the evidence showed he was
acting in self-defense. Alternatively, he claims that the
conviction should be reduced to second degree murder.
The difference between a justified killing under self-defense
and one not justified, amounting to second degree murder, is that
in the former instance the belief that the use of force which is
intended to cause death of great bodily harm is reasonable under
the circumstances (720 ILCS 5/7--1 (West 1994); People v. Turcios,
228 Ill. App. 3d 583, 594 (1992)), and in the latter the belief is
unreasonable (720 ILCS 5/9--2(a)(2) (West 1994); see People v.
Ellis, 107 Ill. App. 3d 603, 611 (1982)).
Although he did not testify at trial, the defendant maintains
that his statements to the police should have led the jury to find
that he possessed the belief that the use of force was necessary.
He told the police that he had been shot earlier by a person he
believed to be Johnson. Only after being struck by Johnson's
vehicle and seeing Johnson put something out the window did the
defendant fear being shot again and resort to firing his gun in
Johnson's direction. The defendant argues that the jury simply had
to assess whether his belief that force was necessary was
reasonable, in which case it would amount to self-defense, or
unreasonable, in which case it would mandate a finding of a lesser
offense than first degree murder--second degree murder. See Ellis,
107 Ill. App. 3d at 611-12. Under the circumstances of this case,
we find the defendant's arguments to be without merit.
In the present action, the jury was instructed on self-defense
and second degree murder. Nevertheless, the jury found the
defendant guilty of three counts of first degree murder. In doing
so, it plainly rejected the self-defense and second degree murder
options. It is the function of the jury to determine the
credibility of the witnesses and assess the weight to be afforded
evidence, and we may not lightly set aside such findings, nor
substitute our own judgment for that of the jury. People v. Gomez,
215 Ill. App. 3d 208, 215 (1991). Here, the jury did not find the
defendant's theory that force was necessary to be credible. We
will not substitute our judgment for that of the jury. In fact,
the evidence supports the jury's determination that force was
unnecessary and that the defendant possessed an intent to kill.
The defendant told the police that he and his friends followed in
pursuit of the gray vehicle being driven by Johnson. The defendant
never stated that he saw that Johnson had a gun or that Johnson
fired shots. His statements that force was necessary were
contradicted by Morgan and Cooper. Morgan testified that Johnson
never stuck his arm out the window and did not have a gun. Cooper
testified that she did not see anyone stick anything out of the
gray vehicle.
The defendant next argues that the State failed to present
sufficient corroboration to his statements to the police to sustain
a conviction of the murder of Davis based on those statements.
raising it in his motion for a new trial. The failure to raise an
issue in a written motion for a new trial results in a waiver of
that issue on appeal. Enoch, 122 Ill. 2d at 186. Having reviewed
the defendant's motion for a new trial, we note that the defendant
contends that he was not proved guilty beyond a reasonable doubt.
While the issue at hand is more narrow, it runs to whether the
defendant was found guilty beyond a reasonable doubt. Accordingly,
we find no waiver.
In order for a conviction based on a confession to be
sustained, the confession must be corroborated. People v.
Willingham, 89 Ill. 2d 352, 358-59 (1982). The corroboration
requirement is satisfied by proof of the corpus delicti.
Willingham, 89 Ill. 2d at 359; In re D.A., 114 Ill. App. 3d 522,
524 (1983).
Proof of guilt for a criminal offense may be divided
conceptually into proof that an injury or loss occurred, that the
cause of the loss was criminal in nature, and that the accused was
the offender. People v. Furby, 138 Ill. 2d 434, 445-46 (1990).
The first two components--the occurrence of the injury or loss and
its causation by criminal conduct--are termed the corpus delicti;
the identity of the accused as the offender, the ultimate issue, is
not considered part of the corpus delicti. Furby, 138 Ill. 2d at
446.
In the instant matter, we find the evidence sufficiently
established the corpus delicti of murder. The evidence plainly
shows that an injury occurred: the shooting and subsequent death of
Davis. The evidence likewise shows that someone was criminally
responsible for the shooting that led to her death.
The defendant contends that he could not have been the shooter
because (1) the bullets found in the gray vehicle came from the
front of that vehicle and not from the rear, where he was in the
brown vehicle; and (2) although he told the police that he
possessed and fired a .38-caliber revolver, the deadly bullet was
fired from either a .38- or .357-caliber weapon so the bullet may
not have been fired from his weapon.
The defendant mischaracterizes the evidence concerning the
pathway of the bullets found in the gray vehicle. Officer Cobb
testified that the two bullets found in the gray vehicle came from
the front and somewhat to the side of the vehicle, as did the
bullet that went through the headrest. He gave no testimony
concerning the trajectory of the bullet which was later recovered
from the victim's head.
Furthermore, the deadly bullet could have been fired from the
defendant's weapon. The parties stipulated that the bullet
retrieved from the victim's head was fired from a .38- or .357-
caliber gun. The only gun recovered by the police was a .380
caliber, which could not have been the murder weapon. The
defendant's gun, a .38 caliber, was never recovered but could have
been the murder weapon.
The corroborating evidence presented could be considered
together with the defendant's statements that he fired
approximately five shots at the gray vehicle as it passed with his
.38-caliber revolver. Together, the jury could have found the
defendant to have been the murderer.
The defendant also argues that the jury's confusion, as
evidenced by its question to the trial judge during deliberations,
was evidence of reasonable doubt.
The State asserts that this issue has been waived because the
defendant failed to preserve the issue by raising it in his motion
for a new trial. See Enoch, 122 Ill. 2d at 186. Having reviewed
the defendant's motion for a new trial, we note that the defendant
contends that he was not proved guilty beyond a reasonable doubt.
Again, while the issue at hand is more narrow, it runs to whether
the defendant was found guilty beyond a reasonable doubt.
Accordingly, we find no waiver.
During deliberations, the jury directed a note to the trial
judge which read as follows:
"Do we have to accept a confession as 'absolute' proof that
the defendant's gun fired the bullet that killed Mary or can
we find resonable [sic] doubt for which gun was responsible?"
The trial judge responded with a note stating:
"You have received all the evidence and instructions on the
law. Please continue deliberating."
A trial court's decision to answer or refrain from answering
a question from the jury will not be disturbed absent an abuse of
discretion. People v. Landwer, 279 Ill. App. 3d 306, 314 (1996),
citing People v. Reid, 136 Ill. 2d 27, 38-39 (1990). A trial judge
may properly decline to answer jurors' questions when the
instructions are legally correct and understandable, further
instruction would mislead the jurors, jurors raise questions of
fact, or an answer or explanation by the court would likely direct
a verdict. People v. Childs, 159 Ill. 2d 217, 228 (1994).
However, jurors are entitled to have their questions answered.
Thus, the general rule is that the trial court has a duty to
provide instruction to the jury where it has posed an explicit
question or requested clarification on a point of law arising from
facts about which there is doubt or confusion. Childs, 159 Ill. 2d
at 228-29.
As to the defendant's argument that the note evidences jury
confusion such that it could not possibly find him guilty beyond a
reasonable doubt, we find such an argument to be speculative. The
note could as easily evidenced the jury's careful consideration of
all the evidence leading to its findings of guilt.
In sum, we find that a rational trier of fact could have found
the defendant guilty of first degree murder beyond a reasonable
doubt. Consequently, we affirm the defendant's convictions.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
circuit court of Lake County.
Affirmed.
INGLIS and HUTCHINSON, JJ., concur.