No. 3--02--0130

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

A jury found the defendant, Ronald L. Wells, guilty of firstdegree (felony) murder (720 ILCS 5/9--1(a)(3) (West 2000)) andconcealment of a homicidal death (720 ILCS 5/9--3.1(a) (West2000)). The felony murder conviction was based on robbery. Thedefendant was sentenced to concurrent prison terms of naturallife and five years, respectively. On appeal, the defendant ischallenging only his murder conviction and sentence. He arguesthat (1) the State failed to prove beyond a reasonable doubt thathe committed the robbery upon which his felony murder convictionwas based; (2) he was not eligible to receive a natural lifesentence; (3) his trial counsel was ineffective by failing tofully develop a self-defense theory; and (4) the trial courterred by failing to instruct the jury on self-defense, seconddegree murder, or attempted murder. We affirm.

BACKGROUND

The events in question took place in Peoria. On March 15,2001, the victim, Jamie Weyrick, and the defendant drove inWeyrick's car to find someone from whom Weyrick could buymarijuana. The defendant located a person named "Curtis" whosaid he would sell marijuana to Weyrick for $200. Weyrick gave$200 to Curtis, who left with Weyrick's money and did not return. Weyrick told the defendant that he held the defendant responsiblefor losing his $200 and expected the defendant to reimburse himfor the loss.

The defendant told Weyrick that he did not have $200 torepay Weyrick, but he could make some phone calls to get themoney. Weyrick and the defendant then drove toward thedefendant's home in Weyrick's car.

Weyrick's girlfriend, Patricia Lane, testified at trial. Oncross-examination, defense counsel asked Lane about Weyrick'saffiliation with the Gangster Disciples. The prosecutor objectedon relevance grounds. After the defense counsel's offer ofproof, the trial judge sustained the State's objection.

The defendant gave two videotaped confessions to the police. In the first confession, the defendant stated that he killedWeyrick in someone else's garage. The defendant said thatWeyrick threatened the defendant by showing him a gun.

In the second confession, the defendant admitted killingWeyrick in the defendant's home. The defendant said Weyrick toldthe defendant that he had a gun, but did not show the defendantthe gun. The defendant stated that Weyrick had a reputation forhaving a gun and the defendant thought that Weyrick was armedwith a gun. However, the defendant said that Weyrick, in fact,did not have a gun on his person.

The defendant's wife, Angela Wells, agreed to testify in thedefendant's trial after pleading guilty to Weyrick's murder. Angela stated that Weyrick and the defendant entered the house. The defendant then had a conversation with Angela in thebathroom. After the conversation, Angela went into the livingroom with the children and began to cry. In his secondconfession, the defendant stated that Angela and the children didnot arrive at the home until after he killed Weyrick.

According to both Angela's testimony and the defendant'ssecond confession, the defendant and Weyrick went upstairs to thekitchen. In his second confession, the defendant said that hestabbed Weyrick in the back with a knife in the kitchen. Thedefendant said that Weyrick turned and fought with the defendant,who stabbed Weyrick multiple times in the neck and chest. Thedefendant left Weyrick on the kitchen floor after the defendantthought Weyrick was dead. He said that he left the knife next toWeyrick. The defendant stated that he went downstairs, but thenreturned to the kitchen. He alleged that when he returned to thekitchen, Weyrick attacked him with the knife. The defendant saidthat he got the knife away from Weyrick and stabbed Weyrickseveral more times.

The defendant's son, Dustin Gaston, also testified at trial. Both Angela and Gaston testified that they heard the defendantand Weyrick fighting upstairs. They heard the fight continuedown the stairs into the front room. Angela and Gaston bothstated that they heard Weyrick plead for his life. Angela saidthat Weyrick told the defendant, "I gave you all I got."

In the defendant's second confession, the defendant saidthat after he stabbed Weyrick several more times in the frontroom, Weyrick fell to the floor in a pool of blood. According toAngela and the defendant's second confession, Angela and thedefendant wrapped Weyrick in a blanket, carried him to thebasement, and put him in an unplugged, empty freezer.

In the defendant's second confession, he stated that he took$400 from Weyrick's wallet. He said that he took Weyrick's ATMcard out of the wallet along with a piece of paper with the PINnumber for the ATM card. The defendant then threw the wallet inthe trash. However, Angela testified that it was she who tookWeyrick's ATM card and PIN number from the wallet. Angela statedthat she also took $1,000 from Weyrick's wallet. Angela saidthat she later used Weyrick's ATM card and PIN number to withdraw$10 from Weyrick's credit union account.

In his second confession, the defendant stated that he tookWeyrick's gold "nugget" ring and silver necklace. The defendantsaid that he sold the necklace and pawned the ring. A pawn shopowner testified that the defendant pawned the ring, but laterreturned and redeemed it.

Angela testified that the defendant cleaned the blood offhimself, changed clothes, left the home, and did not return forseveral hours. According to Angela and Gaston, the defendantdrove away in Weyrick's car. According to both of thedefendant's confessions, the defendant paid a third party $200 todispose of Weyrick's car. After Weyrick's disappearance, Lanelocated Weyrick's car parked in a neighborhood far from Weyrick'shome. Lane then notified the police about the location of thecar.

Angela testified that after the defendant left the house,Angela heard a noise coming from the basement. When she went tothe basement to investigate, she saw that Weyrick was not dead. He had opened the lid of the freezer, and was attempting to climbout. She went upstairs, where she got a hammer and a kitchenknife. She hit Weyrick on the head three or four times with thehammer and stabbed him several times in the neck, chest, andabdomen with the knife. Angela then asked Gaston to sit on thefreezer lid while she tied the freezer's handle with telephonecord. She told the police that she waited about three hoursuntil Weyrick stopped breathing. When the defendant returned tothe home, he and Angela buried Weyrick's body in the back yard.

Lane told the police that she had last seen Weyrick with thedefendant in Weyrick's car. When the police initially questionedthe defendant about Weyrick's disappearance, the defendant deniedany involvement. When the police questioned the defendant asecond time, he gave his first confession, in which he statedthat he had killed Weyrick in a garage at a different addressthan his home address.

The police investigated the garage the defendant haddescribed, where they found no evidence of a struggle. After thepolice confronted the defendant with the lack of evidence at thegarage and with security photos of Angela withdrawing money fromthe ATM, the defendant gave his second confession. In his secondconfession, the defendant described burying Weyrick's body in theback yard. The police then went to the defendant's home, wherethey dug up Weyrick's body. The police also obtained bloodevidence from various locations in the house that matchedWeyrick's DNA. The blood evidence was admitted at trial.

The coroner testified that Weyrick's body was recoveredabout a month after the murder and was beginning to decompose. Weyrick's brain was swollen, which indicated that it had beendeprived of oxygen before he died. Weyrick's lungs werecollapsed. Weyrick's body had multiple stab wounds to his back,neck, chest, and abdomen. Additionally, the body had multipleblunt force wounds to the head.

The coroner stated that Weyrick died of the combination ofbleeding from his multiple stab wounds, the blunt force wounds,and asphyxiation. According to the coroner, Weyrick could havedied solely as a result of blood loss from a combination of hisvarious stab wounds and blunt force wounds.

The defendant and Angela were named as codefendants in theindictment for Weyrick's murder and the concealment of hishomicidal death. They were charged with one count each of"felony" murder based on robbery (720 ILCS 5/9--1(a)(3) (West2000)), "intentional" murder (720 ILCS 5/9--1(a)(1) (West 2000)),"knowing" murder (720 ILCS 5/9--1(a)(2) (West 2000)), andconcealment of a homicidal death (720 ILCS 5/9--3.1(a) (West2000)).

During the jury instruction conference, the defendant askedfor instructions on self-defense, second degree murder, andattempted murder. The trial court denied these requests. Thejury found the defendant guilty on all four counts.

During the sentencing hearing, police officers testifiedabout their investigations of two other deaths to which thedefendant was connected. The officers said that the defendanthad told them that Weyrick's death and the two other deaths weresomehow related to threats against the defendant, threats againsthis family, drugs, money, and gangs. The defendant previouslyhad complained to the police about Weyrick threatening him andhis family.

The trial court sentenced the defendant on the felony murdercount, but did not enter judgment on the other murder counts. The judge sentenced the defendant to life imprisonment based onthe aggravating factor that the murder was committed during thecourse of the forcible felony of robbery (720 ILCS 5/9--1(b)(6)(c) (West 2000)). The court also sentenced the defendanton the concealment of a homicidal death. The defendant appealed.

ANALYSIS

I. Felony Murder Based on Robbery

The defendant submits that the State failed to prove beyonda reasonable doubt that he committed the robbery on which hisfelony murder conviction was based. Specifically, he contendsthat the State failed to show that he took property from Weyrickby the use or threat of force. He also argues that it was Angelarather than the defendant who took property from Weyrick.

When analyzing the sufficiency of the evidence, we reviewthe evidence in the light most favorable to the prosecution andconsider whether any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. People v. Barham, 337 Ill. App. 3d 1121, 788 N.E.2d 297 (2003).

A person commits felony murder when he kills an individualwithout lawful justification, and in performing the acts thatcause the death, commits a forcible felony other than seconddegree murder. 720 ILCS 5/9--1(a)(3) (West 2000). Robbery is aforcible felony. 720 ILCS 5/2--8 (West 2000). A person commitsrobbery when he takes property from the person or presence ofanother by the use of force. 720 ILCS 5/18--1 (West 2000).

A person is responsible for conduct which is an element ofan offense when the conduct is either that of the person or theconduct of another person for whom he is legally accountable. 720 ILCS 5/5--1 (West 2000). A person is legally accountable forthe conduct of another when, either before or during thecommission of the offense and with intent to promote orfacilitate such commission, the person aids or abets the otherperson in planning or committing the offense. 720 ILCS 5/5--2(c)(West 2000).

The defendant relies, in part, on People v. Tiller, 94 Ill.2d 303, 447 N.E.2d 174 (1982), for the proposition that he didnot commit a robbery. In Tiller, the victim was a postal worker. The defendant left the scene of the crime, and the victim waskilled by codefendants. The defendant returned after the murderand took the mail truck and undelivered mail. The Tiller courtruled that the defendant had not committed armed robbery becausethere was no evidence that the force exerted against the victimwas for the purpose of depriving her of the mail truck or mail.

We find the holding of Tiller to be inapplicable to theinstant case. Here, a rational trier of fact could have foundbeyond a reasonable doubt that the force exerted by the defendantagainst Weyrick was for the purpose of depriving him of severalitems of his property.

In the present case, a rational trier of fact could havefound beyond a reasonable doubt that the defendant wasaccountable for Angela's conduct in killing and robbing Weyrick. A reasonable jury could have found that the defendant and Angelaaided and abetted each other in planning and causing Weyrick'sdeath and taking various items of his property. The record showsthat the defendant and Angela acted together to commit themultiple traumas that caused Weyrick's death. The record alsoshows that the defendant and Angela acted in concert to takeWeyrick's wallet, money, ATM card, jewelry, and car. These itemswere forcibly taken from Weyrick's person or presence by thedefendant and Angela by stabbing Weyrick with knives, strikinghim with a hammer, and asphyxiating him in a closed freezer.

Taking the evidence in the light most favorable to theprosecution, a rational jury could have found beyond a reasonabledoubt that the defendant committed a robbery. Therefore, thetrial court did not err by entering judgment against thedefendant for felony murder based on robbery.

II. Natural Life Sentence

The defendant argues that the trial court erred insentencing him to natural life imprisonment because he neitherinflicted the injuries that caused Weyrick's death nor inflictedwounds substantially contemporaneously with the wounds inflictedby Angela.

Sentencing is a matter of judicial discretion, and asentence imposed by the trial court will not be disturbed onreview absent an abuse of that discretion. People v. Streit, 142Ill. 2d 13, 566 N.E.2d 1351 (1991). A defendant convicted offirst degree murder may be sentenced to natural life imprisonmentif the trier of fact finds beyond a reasonable doubt that a deathpenalty aggravation factor is present. 730 ILCS 5/5--8--1(a)(1)(b) (West 2002). One such aggravation factor is that:

"(6) the murdered individual was killed in thecourse of another felony [and]:

(a) the murdered individual:

(i) was actually killed by thedefendant, or

(ii) received physical injuriespersonally inflicted by the defendantsubstantially contemporaneously withphysical injuries caused by one or morepersons for whose conduct the defendantis legally accountable *** and thephysical injuries inflicted *** causedthe death of the murdered individual;and

(b) in performing the acts which caused thedeath of the murdered individual[,] *** thedefendant acted with the intent to kill themurdered individual or with the knowledgethat his acts created a strong probability ofdeath *** to the murdered individual ***; and

(c) the other felony was *** robbery ***."  720 ILCS 5/9--1(b)(6) (West 2002).

The defendant relies, in part, on People v. Derr, No.5--01--0977 (February 25, 2004), for the proposition that he wasnot eligible for a natural life sentence. The defendant concedesthat the holding of Derr is inapposite to his case. However, thedefendant contends that in obiter dicta, the Derr court madeclear that the acts causing the death had to be contemporaneouswith the robbery. He submits that, in this case, the actscausing Weyrick's death were not contemporaneous with therobbery. We disagree.

The record shows that the defendant and Angela took severalitems of Weyrick's property contemporaneously with stabbing him,beating him with a hammer, and asphyxiating him in a freezer. Thus, the dicta in Derr is not helpful to the defendant.

The necessary elements of the aggravation factor in section9--1(b)(6) were found by the trier of fact beyond a reasonabledoubt. The jury found the defendant guilty of felony murder. The jury, therefore, found beyond a reasonable doubt that thedefendant was accountable for Angela's acts. The record showsthat the defendant inflicted wounds on Weyrick substantiallycontemporaneously with the wounds inflicted by Angela. The juryfound beyond a reasonable doubt that the defendant committed"intentional" murder and "knowing" murder. As indicated above,the jury found beyond a reasonable doubt that the murder occurredduring the robbery.

Because the necessary elements of section 9--1(b)(6) wereclearly established, the trial court did not abuse its discretionby sentencing the defendant to natural life imprisonment.

III. Ineffective Assistance of Counsel

The defendant contends that his trial counsel wasineffective by failing to fully develop a self-defense theory. Specifically, the defendant submits that his trial counsel failedto argue that Weyrick (1) was known to be a gang member; (2) wasknown to carry a gun; and (3) had threatened the defendant andthe defendant's family.

To prove that his trial counsel was ineffective, a defendantmust show that (1) counsel's conduct fell below an objectivestandard of reasonableness, and (2) the deficient performance soprejudiced the defendant that it is reasonably probable theresult would have been different but for the deficientperformance. Strickland v. Washington, 466 U.S. 668, 80 L. Ed.2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d504, 473 N.E.2d 1246 (1984). A court may resolve a claim ofineffective assistance of counsel by reaching only the prejudiceprong of the Strickland test, because a lack of prejudice makesthe issue of counsel's alleged deficient performance irrelevant. People v. Hall, 194 Ill. 2d 305, 743 N.E.2d 521 (2000).

The Illinois self-defense statute states that:

"[a person] is justified in the use of force which isintended or likely to cause death or great bodily harmonly if he reasonably believes that such force isnecessary to prevent imminent death or great bodilyharm to himself or another, or the commission of aforcible felony." 720 ILCS 5/7--1 (West 2000).

The record of the instant case shows that the defendantlured Weyrick to the defendant's home on the pretext that thedefendant would make phone calls to obtain $200 for Weyrick. Even if Weyrick had previously threatened the defendant and thedefendant's family, the record does not indicate that thedefendant reasonably believed that the use of deadly force wasnecessary to prevent Weyrick from causing imminent death or greatbodily harm to anyone in the defendant's home. The record alsodoes not indicate that the defendant reasonably believed that theuse of deadly force was necessary to prevent Weyrick fromcommitting a forcible felony in the home.

The defendant has not shown that he was prejudiced by histrial counsel's failure to fully develop a self-defense theory. Therefore, under Strickland, the defendant's trial counsel wasnot ineffective.

IV. Jury Instructions

The defendant submits that the trial court erred by failingto instruct the jury on self-defense, second degree murder, orattempted murder.

A defendant is entitled to instructions on his theory of thecase when there is some foundation in the evidence for theinstructions. People v. Jones, 175 Ill. 2d 126, 676 N.E.2d 646(1997). A trial court's decision with regard to issuing specificjury instructions is reviewed under an abuse of discretionstandard. People v. Garcia, 188 Ill. 2d 265, 721 N.E.2d 574(1999).

A. Self-Defense

The defendant argues that he was entitled to a juryinstruction on self-defense. We ruled above that his trialcounsel was not ineffective by failing to fully develop a self-defense theory. For similar reasons, we hold that there was nofoundation in the evidence for a jury instruction on self-defense. The trial court did not abuse its discretion by failingto grant the defendant's request for such an instruction.

B. Second Degree Murder

The defendant concedes that in People v. Morgan, 197 Ill. 2d404, 758 N.E.2d 813 (2001), our supreme court ruled that a juryinstruction on second degree murder is not available where thedefendant was charged with felony murder. He asks that if wereverse his felony murder conviction, we should remand the matterfor a new trial and a jury instruction on second degree murder. Because we did not reverse his felony murder conviction, we neednot address this argument.

C. Attempted Murder

The defendant contends that because the wounds he inflictedon Weyrick did not actually kill Weyrick, he was entitled to aninstruction on attempted murder. He predicates this argument,however, on the premise that he was not accountable for Angela'sactions in killing Weyrick. Because we held above that thedefendant was accountable for Angela's conduct, we also need notconsider this argument.

CONCLUSION

For the foregoing reasons, we affirm the judgment of thePeoria County circuit court.

Affirmed.

LYTTON and SLATER, JJ., concur.