WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOHN S. BOYLE, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Defendant, Herman L. Bernette, was indicted in the criminal court of Cook County, jointly with Martin Tajara, Samuel Young and Joe Ray Garrett, and charged with the murder of Richard Williams, who was slain in the course of an armed robbery. The decedent was the assistant manager of a restaurant that was robbed; Tajara and Young were employed at the restaurant as head cook and dishwasher, respectively; Garrett had been employed there as a dishwasher until laid off about six weeks prior to the homicide; while defendant was an acquaintance of Young and Garrett. The latter was granted a severance and after a jury trial jointly with Tajara and Young, defendant was found guilty, the jury fixing his punishment at death. Defendant sued out a writ of error to this court for a review of the judgment of conviction and, while that writ was pending, filed in the criminal court a petition for relief under the Post-Conviction Hearing Act, (Ill. Rev. Stat. 1961, chap. 38, pars. 826-832,) alleging a substantial denial of his constitutional rights due principally to the purported incompetence of his appointed counsel. After a hearing, this petition was denied and upon leave granted by this court under Rule 27, (Ill. Rev. Stat. 1961, chap. 110, par. 101.27,) defendant has filed a separate writ to review such order of denial. We have consolidated the two writs for consideration and opinion. It also appears that defendant was accorded a sanity hearing after verdict had been returned in the principal case, but no appeal has been taken from the result of such hearing.
At about 1:00 A.M. on the morning of November 13, 1961, a restaurant located at 8301 W. North Avenue, in Melrose Park, Cook County, was locked up and closed for business for the day. All patrons and waitresses had since departed, and present to attend to closing and cleaning details were Richard Williams, Samuel Young and a cook named Wallace Peterson. Mrs. Williams came to the premises about 1:30 A.M., being admitted by her husband through a back door which was kept locked. A short time later, Young obtained the key to the back door from Williams so that garbage could be removed. Several cans were then carried out by Young and Peterson, the testimony of the latter being that Young had carried out the last can and that he, Peterson, had returned to work near a walk-in refrigerator as Young was completing the garbage detail. During this time, Williams was in the basement of the building where several storerooms were located.
Within minutes after Young had returned to the inside of the kitchen, a man carrying a pistol in his hand entered through the back door and announced that it was a hold-up. The intruder had a brown paper shopping sack over his head which had eye-holes and a slit for the mouth torn from it, and both Mrs. Williams and Peterson agreed that he wore leather gloves, that skin visible at the eye-holes revealed him to be a colored man, and that he wore a leather jacket. Peterson said in addition that the gunman was wearing blue trousers and heavy shoes, and that all of his clothing was extremely dirty. After first ordering Mrs. Williams to open the safe and being told she did not work there and did not know how, the masked man inquired if anyone else was there and Young volunteered that Williams was in the basement. At this, Mrs. Williams, Peterson and Young were herded down the basement stairs at gun point. When Williams was encountered, his wife told him it was a hold-up and his reaction was to put his hands up and to say to the gunman: "Okay, I'll do anything you say."
Leaving the other three persons in a basement storeroom, Williams and the robber proceeded upstairs and those in the basement heard the office safe opening and the sound of some change falling on the floor, after which there was a shot and Williams was heard to shout: "Oh God, no." When Mrs. Williams and Peterson came to the office moments later the felon had departed and Williams was found lying on the floor in front of the safe, mortally wounded by a bullet in the chest. Police officers who were summoned found a spent Remington .380 calibre shell four or five feet from the safe, and discovered the paper sack mask in the restaurant parking lot. A subsequent check revealed that about $2,000 was missing from the safe.
Defendant's apprehension and connection with the slaying came about in a unique way. Around 1:00 A.M. on the morning of November 14, 1961, or about twenty-four hours after the homicide, a lady named Annie Borden, who had been working since 3:00 P.M. of the preceding afternoon, returned to her two-room apartment on the second floor of 2951 W. Washington Street in Chicago. When she could not enter because something was obstructing the door from the inside, she summoned the police. As the officers arrived, defendant emerged from the apartment and was taken into custody. He showed the police how he had entered by climbing through a window, and explained his presence by saying that detectives from Maywood were pursuing him on a "phony charge," that he had become tired and had entered the apartment to get some sleep. Annie Borden had never seen him before. This witness, as well as several police officers, testified that defendant was wearing a brown leather jacket and blue pants, both of which were extremely dirty. One officer found a pair of leather gloves stuffed in defendant's trouser pocket, but no money was discovered on his person. Defendant was detained on a charge of entering the apartment and remained in jail when he could not raise bail.
Six days later, as she was cleaning her apartment, Annie Borden discovered a gun under a large over-stuffed chair about five feet from the bed where defendant had slept. The police were again called and it was found that the gun was a .380 calibre automatic pistol. It was loaded with five .380 calibre Remington bullets, one in the chamber and four in the magazine. Subsequent ballistic tests established that it was the weapon with which Williams had been killed, and at defendant's trial Peterson identified it as the pistol carried by the robber.
The exact manner in which Tajara, Young and Garrett were implicated and apprehended does not appear in the abstract presented but, in any event, all were in custody on November 22, 1961, on which date they joined with defendant in giving a written statement to an assistant State's Attorney. In this statement, admitted into evidence at the trial after an extensive inquiry into its voluntary or involuntary character, defendant related that he had been approached by Tajara and Young about three weeks prior to the homicide with a plan to hold up the restaurant, but had told them he wasn't interested. While the remainder of the statement does little to clearly fix dates and times, it appears that Young and Tajara continued with their efforts to persuade defendant, and that the latter finally agreed to participate on the day of the crime, at a time when they were drinking at the house of a man to whom the statement refers as Clyde Grayson. The matter of a weapon was discussed and it was decided that a gun would be borrowed from Garrett. After this, according to defendant's admissions in the statement, he and Young left the drinking place and went to the house of defendant's sister where they remained until Tajara showed up and gave defendant a gun and a pair of gloves. Defendant said he then returned to Clyde's house, driving his sister's car; that he bought and drank some whiskey there, then departed and "went to the club;" and that the last he remembered of the gun Tajara had given him was leaving it in his sister's car after he had "parked it in back of the garage." So far as we can ascertain, the "club" and the "garage" referred to in the statement are not further identified in the record of the murder hearing.
It further appears from the statement that upon being shown the gun found in the Borden apartment, defendant said he didn't know if it was the gun Tajara had given him "because all guns look alike," but he did admit he had left a gun in the apartment, saying that he had "stuck it under something" when the police arrived. He admitted also that he owned a brown leather jacket.
At the trial of the cause, Mrs. Williams, Peterson, Annie Borden, and the several police officers involved, testified to the facts substantially as heretofore related. Garrett, who was granted a severance and became a State's witness, testified that the automatic pistol was his and that he had purchased it at the time he was laid off at the restaurant. He said that Tajara had come to his home during the afternoon of November 12, 1961, asking to borrow the pistol and explaining that he needed it because he was going to collect some money that was owed to him. The witness said he first hesitated, but then gave the weapon to Tajara after the latter offered to pay him $50 for its use and to return it the following day. The gun was never returned and Tajara purportedly said he did not want to talk about the matter when Garrett made inquiries. On cross-examination, Garrett denied that he had any part in or knowledge of the robbery, but did admit that he had, during the initial stages of investigation, denied giving the gun to Tajara. He explained his change of position by stating that he had since retained a lawyer who told him to tell the truth, and likewise conceded that the fact he had been granted a severance affected his decision and testimony. Apropos of the latter circumstance, the record reflects that the charges against him were nolle prossed after the jury returned its verdicts against his co-defendants.
Clyde Grace, another witness for the prosecution, testified that he and several friends customarily gathered at his home to drink and play cards, and that there had been such a gathering on the afternoon and evening of November 12, 1961. This witness and Jerry McCurley, who was also present, related that defendant had met there with Young and Tajara about 2:00 P.M., and that the three had departed after conversing in the kitchen for about 15 minutes. Defendant returned about 6:00 P.M. and, during the course of the evening, exhibited an automatic pistol to both Grace and McCurley which, according to the latter, looked like the pistol recovered in the Borden apartment. What time defendant left the Grace residence on this second occasion does not clearly appear, but we note the place was but a 10 to 15-minute ride from the restaurant where Williams was killed. There were no witnesses for the defense other than those who testified outside the presence of the jury on the character of the written statement.
While relying largely upon trial errors and his constitutional claims as requiring a reversal of the judgment of conviction, defendant advances the contention that he was not proved guilty beyond a reasonable doubt. It is his position that, due to the circumstantial nature of the evidence against him, reasonable doubt of guilt must be found to arise from the fact that he had no "fruits of the crime" in his possession when he was arrested, and because Garrett's testimony was influenced by a purpose of gaining leniency and exoneration for himself. However, a conviction may be sustained upon circumstantial evidence as well as direct evidence, (People v. Russell, 17 Ill.2d 328,) it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Magnafichi, 9 Ill.2d 169; People v. Grizzel, 382 Ill. 11.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused's guilt. (People v. Franklin, 341 Ill. 499; People v. Judycki, 302 Ill. 143.) We do not see how the jury here could have reached any other conclusion than it did. Starting with the proof of the ballistics test which ...