APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
After trial by jury in the circuit court of Cook County, defendant, Oscar Jordan, was found guilty of the murder of Lawrence Waters and sentenced to a term of not less than 40 nor more than 60 years. He brings direct appeal contending that the failure to appoint counsel until 6 weeks after his arrest on a capital charge, leaving him unrepresented at the coroner's inquest and the preliminary examination, transgressed his constitutional rights to assistance of counsel, due process and equal protection of the law. He also contends that the proof was insufficient to support a conviction of murder, that the conduct of the prosecutor during trial and in final argument was prejudicial and deprived him of a fair and impartial trial, and that "action of the State affected the ability of his appointed counsel to adequately prepare for trial."
The facts underlying this appeal indicate that in the early morning hours of September 3, 1963, two Chicago police officers, in response to a call, arrived at the vicinity of 14th Street and Hamlin Avenue where they discovered the defendant and Lopez House standing over the body of Lawrence Waters who had been shot in the back of the head. The defendant and House told the officers that they found the body while walking back from the home of a relative who lived some 22 blocks away and that they had asked a woman to call the police. They were questioned and released.
On September 12, 1963, a warrant was issued for the arrest of defendant and House, they were indicted by the grand jury for the murder of Waters on October 7, and arraigned on October 25. Defendant requested and was granted a separate trial which commenced on February 20, 1964.
At trial two occurrence witnesses, Sedgie Watts and Malik Wynn, testified that on the morning of September 3, 1963, they, defendant and House, met on the back porch of an apartment located at 3604 Douglas and talked for some time. The four left together, Wynn testifying that it was about 2:30 A.M. and Watts being uncertain as to time, and walked west on Douglas Boulevard toward Independence Boulevard until they reached the base of a large statue located in the parkway between the traffic lanes. While standing on the south side of the statue a man, unknown to Wynn and Watts, walked past them. Both witnesses testified that defendant requested them to remain by the statue while he and Lopez House approached the stranger who they estimated was then about 150 feet west of them. They further testified that they heard defendant ask the stranger for a cigarette and then announce "this is a stickup", that the stranger turned away from defendant, prompting House to exclaim "burn him", and that they saw defendant fire a gun at the man, whereupon they all ran back to the porch at 3604 Douglas. Watts and Wynn also stated that while defendant and House returned to the scene to determine if the man defendant had shot at was dead, they went to the home of a girl friend, and that there, hours later, they again met defendant who instructed them to take the gun and deliver it to Clifton Ellison for safe keeping, which they did.
Clifton Ellison testified that on the morning of September 3, 1963, Wynn and Watts came to his house with a gun which he identified as defendant's, having seen it on several previous occasions, that later that morning Jordan came to his home and told him that he had shot a man in the head on 14th Street, and that he had returned to the scene and told a lady to call the police. Ellison further testified that he saw Jordan at 10:30 P.M. that night and he again admitted having killed a man. This admission was corroborated by Perry Ellis, a sixteen-year-old in the custody of the Illinois Youth Commission, who stated under oath that he had a conversation with defendant in the presence of Clifton Ellison wherein defendant said that "he burned the dude" down on Douglas Boulevard west of the statue, and that Lopez House was with him while "Cowboy" Watts and "Cimoli" Wynn waited at the statue. Ellis further stated that at noon on September 5, 1963, he accompanied defendant to his own home where Jordan tried to sell a gun, which Ellis knew to be Jordan's, to his (Ellis's) mother. She declined and later that day he went with defendant to the residence of Henry Fly who did purchase the gun.
Both Ellis's mother and Fly corroborated the above occurrences, Fly stating that he purchased a gun from defendant in the presence of Perry Ellis on September 5 and the next day gave it to one Marie Carter from whom the gun was ultimately recovered by the police. This gun was admitted into evidence as People's Exhibit No. 1, and identified by Watts and Wynn as the gun defendant had in his possession before and during the shooting, and by Ellis, his mother and Fly as the one defendant was trying to sell. Jordan denied the commission of the crime and introduced an alibi as his defense.
We find no reason to consider defendant's argument that the failure to appoint counsel until six weeks after his arrest transgressed his constitutional rights since there is nothing in the record before us or in defendant's brief to indicate that he was prejudiced in any manner at a preliminary hearing, if there was one, at an inquest, if he was required to attend, or at any time prior to his arraignment.
In support of his contention that the State failed to prove him guilty of murder beyond a reasonable doubt, defendant, while conceding that the corpus delicti has been adequately established, asserts that the evidence did not clearly establish that the decedent and the person he shot at were one and the same.
Based on the foregoing facts set out herein, and an examination of the record, we cannot agree with defendant, as we find overwhelming evidence linking him with the crime as charged in the indictment. Two occurrence witnesses testified to seeing him fire a gun at the back of a man's head at a location where the body of decedent was found with a bullet hole through the back of his skull. While defendant attacks this testimony as incredible, contradictory and improbable, there is no real basis in the record to discredit it. The witnesses were not, as defendant argues, accessories to the crime. Furthermore, while contradictions exist in their testimony as to nonmaterial events that happened prior to and subsequent to the crime, these factual discrepancies do not vitiate the credibility of the witnesses' entire testimony. The record as a whole discloses that the testimony of both witnesses was substantially the same, and, as to the material facts of the case, what transpired at or near the statue, was completely free from contradiction. Certainly, contradictions and inconsistencies concerning particular details of no consequence can be expected when relating an event that transpired weeks or months in the past; hence, the discrepancies here, being of slight degree and relevance, do not, as defendant further argues, indicate that the above testimony was patently false. Therefore, it is clear that the jury could have validly based its verdict on this testimony, and that such testimony alone accompanied by the corpus delicti could support a conviction of murder. People v. Ashley, 18 Ill.2d 272.
Furthermore, other cumulative evidence reinforces this finding. The proximity of the discovery of decedent's body in relation to the eye witnesses' estimated time of the shooting, the defendant's presence at the discovery of the body, and his possession of a gun when the shooting occurred, are all adequate circumstances identifying him with the murder. Moreover, two other witnesses testified to his admission to guilt of the shooting. We therefore find that the evidence supports a verdict of guilty beyond a reasonable doubt.
We turn now to a consideration of defendant's contention that he did not receive a fair and impartial trial because the conduct of the assistant State's Attorney throughout the trial and in his final argument was prejudicial.
Referring to the alleged misconduct during the trial, defendant complains that a police plat of the scene of the crime which he subpoenaed was tardily delivered, that a witness testifying in defendant's behalf to certain pertinent distance measurements involved in the case was unduly cross-examined, and that the prosecution made or elicited prejudicial statements from various witnesses, viz.: an admonishment to a police officer inferring that there were certain things to which he could not testify, a statement by another witness, a police officer, that he "lodged" an arrest warrant against defendant in the county jail, and testimony by the decedent's mother that the victim had a wife and child. The alleged prejudicial errors in the closing statement were a comment that defendant was inventing a defense, an inference that defendant had to present a defense against the State's case, the mention that decedent was loved by his family just as famous men are loved by their families (made three months after the assassination of President Kennedy), an inference that the prosecutor expressed his personal belief in the truth of the testimony of the State's witnesses, and mention that a particular occurrence witness was uncalled by defendant, creating an inference that he did not call every witness who knew about the transaction and should have done so.
While it would be improper for the State's Attorney or police to intentionally delay the production of evidence subpoenaed by the defense, the record does not disclose any such deliberate delay here. Furthermore, it was available but counsel failed to ask for it in time and, when the plat was ultimately produced, it served no useful purpose since it did not describe the streets, statue or building in question. We find no prejudice to defendant resulting from the delay, if any, occasioned in producing the plat. We also find the cross-examination of the defense witness who made some measurements of distances at the scene was proper since the reference points of the measurements, the place near the statue where the boys were standing, and the spot where the victim was shot, had not been established and, moreover, since the witness's method of measurement was imprecise. In our judgment, the admonishment to the police officer inferring that there were certain things to which he could not testify, and the statement that defendant's arrest warrant was "lodged" in the county jail, did not prejudice defendant's cause. The former remark was proper and did preclude error since it was directed at preventing the witness from volunteering any information regarding a joint statement taken from defendant and House which was inadmissible and could have prejudiced defendant. The latter statement was ...