Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ARCHIBALD J. CAREY, JR., Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 24, 1968.
In a jury trial, the defendant, Samuel Hill, Jr., was convicted of murder, and judgment was entered. Motions for judgment notwithstanding the verdict and for a new trial were denied and he was sentenced to not less than fifteen nor more than twenty years in the Illinois State Penitentiary. He appeals.
This case involves a homicide, which occurred soon after a disputed theft of money from the defendant's person. The theft was allegedly committed by the decedent, Willie Brown. The evidence for the prosecution showed that Brown's death by shooting occurred on June 11, 1966, between 10:30 and 11:30 p.m., near the Sportsman's Corner Tavern in Chicago. A coroner's physician testified that he performed an autopsy and found that one bullet had entered the left thigh area and the other bullet had entered Brown's left shoulder muscle in his back (i.e., medically, the posterior aspect of the left deltoid), traversing from left to right in a forward direction and passing through the left lung, the aorta and finally passing from the right lung. Only these two wounds were found in the deceased's body. The physician testified that in his opinion Brown's death was caused by a bullet wound of the aorta.
James Ivory testified for the State that on June 11, 1966, between 10:00 and 10:30 p.m., he went to Sportsman's Corner Tavern and saw the defendant and Brown, the deceased, arguing about money. Brown had a baby in his arms at the time. Defendant uttered profanities at Brown and demanded the return of his money. Brown denied having it. He went on to state that Robert Hill, the defendant's brother, was present during this argument, as were Phyllis Bryant and Dolores Brown. Ivory went into the tavern, but returned to the street when he heard three shots. He did not see who shot whom, but when he returned to the street, he found Robert Hill lying near the side door of the tavern and Brown lying across the street. Both men had been shot. The defendant was gone. Ivory was also called by the State later in the trial as a rebuttal witness. Defense counsel objected, as Ivory had sat in the courtroom and listened to all the testimony in violation of the court's exclusionary order, requested by the State. The objection was overruled, and Ivory was allowed to testify in rebuttal.
Dolores Brown testified for the People that at approximately 10:00 p.m. on June 11, 1966, she saw Robert Hill trying to wake the defendant, who was sleeping in his own car. His efforts were unsuccessful so he obtained some water from Sportsman's Corner Tavern and while Willie Brown lifted the defendant's head, Hill threw water in his brother's face. The defendant awoke, immediately patted his pockets, stated his money was gone and asked both his brother and Brown if they had it. Receiving a negative response, the defendant said, "Well, you ____; wait until I come back. I'll be back. One of you all is going to give me my money." Ten minutes later Miss Brown saw the defendant walk over to Willie Brown, who now was playing with a baby. The defendant asked Brown for his money. Brown said he did not have it and he continued to swing the baby up and down in his arms. Miss Brown then heard a shot and saw the baby falling from the deceased's arms. It was caught by a man standing nearby. Three shots were fired with the last one hitting Robert Hill, who was steadily walking toward the defendant at the time. Later, the police arrived and took Robert Hill to the Cook County Hospital. This witness and Miss Bryant accompanied them.
On cross-examination, Miss Brown testified that she had executed a signed, written statement at the police station, after leaving the hospital. This was done in the early morning hours following the homicide. This statement, earlier marked as People's Exhibit 6 for identification, had been delivered by the prosecution to the defense near the conclusion of Miss Brown's testimony on direct examination. The witness identified this Exhibit as her statement, but went on to state, repeatedly, that she had made other written, signed statements to the police. When defense counsel asked the prosecution to produce these other statements, the State denied their existence, tendered its entire file to defense counsel and affirmatively stated that it was not trying to hide anything before the court. Defense counsel examined the prosecutor's file, but could find no other signed, written statements therein taken from this witness. Miss Brown admitted on cross-examination that she did not tell the truth in her signed, written statement (i.e., People's Exhibit 6 for identification). She did not mention in her statement that she was standing near the deceased, who was playing with a baby at the time of the shooting, but rather only stated therein that she heard some shooting, saw Robert Hill fall, and the defendant then ran past her.
On redirect examination, Miss Brown testified that she talked to two police officers at the hospital before going to the police station. They took notes of her conversation, but these notes were never reduced to a written statement for her signature. Miss Brown again stated that she signed more than one statement at the police station. She explained that the reason for the discrepancies in her written statement, when compared with her testimony in open court, was due to the fact that at the time of making her earlier written statement, she was the girl friend of Robert Hill, the defendant's brother. She had talked with Robert Hill at the hospital, after speaking with the police officers there. He had told her not to say anything. At the conclusion of her testimony on redirect examination, Miss Brown stated that she saw the defendant shoot Willie Brown, the deceased.
At the conclusion of her testimony on recross-examination, in which Miss Brown again admitted that she had lied in her earlier written statement, but was now telling the truth in open court, defense counsel asked that the State deliver all the additional written statements signed by this witness which might be found in the Police Department file or any other file that the prosecution might have. In response to the court's query, Miss Brown stated that she had signed two statements, with the first one being signed in the police station. The court and counsel for both sides then retired to chambers where the prosecution stated that when Miss Brown spoke of signing two statements, she really meant carbon copies of only the one statement. The court had its doubts as to this attempted clarification and indicated its willingness to ask Miss Brown some questions in a judicial effort to clarify the ambiguity and to precisely define the place and circumstances of all her alleged written statements. Defense counsel objected to such a procedure on the grounds that such questioning by the court before the jury would prejudice the defendant. Defense counsel wanted the prosecution to ask such questions of its witness, or bring in the police officers, who could either corroborate Miss Brown's testimony concerning the number of statements she had signed, or rebut it. The trial court, in deference to defense counsel's objection, did not question Miss Brown further. Neither did the prosecution.
The State did call, as its next two witnesses, the police officers who had knowledge of the statement or statements which Miss Brown had signed. Officer Peterson testified that he investigated the shooting soon after it occurred and he interviewed Miss Brown, Miss Bryant and another woman at Cook County Hospital. No signed, written statements were taken from them at that time. He then took them to a police station, where he saw two detectives receive statements from Misses Brown and Bryant. Officer Peterson went on to testify that he personally saw their statements typed out. He identified People's Exhibit 6 for identification as the typed statement he saw Miss Brown sign in the police station. He saw her sign the original and carbon copies of this statement. On cross-examination, Officer Peterson testified that Miss Brown told him at the hospital that the defendant shot the deceased and Robert Hill following an argument concerning money. This officer was not cross-examined on the critical issue of how many written statements Miss Brown had signed in the police station.
Detective Brown testified that he saw Miss Brown and Miss Bryant in the Cook County Hospital, but no written statements were taken of them there. Miss Brown did sign a written statement in the police station. "She only signed one statement; the original plus copies. We have to maintain about eight copies for the office files downtown and for the State's Attorney's Office." This witness was not cross-examined concerning the number of statements Miss Brown had signed, but was asked if any physical evidence was recovered from the homicide scene. He stated that the Police Department found two spent cartridges and gave them to the Crime Laboratory. On redirect-examination, Detective Brown testified that he never found a gun, either at the scene nor subsequently. The police tried to obtain the weapon used but were unsuccessful.
Phyllis Bryant testified for the State that on June 11, 1966, at approximately 10:00 or 10:30 p.m., she saw the defendant, the deceased, and Robert Hill, her fiance, standing outside the Sportsman's Corner Tavern. The deceased was not holding anything in his hands and she heard no conversation between the parties at that time. When the prosecutor sought to awaken her conscience by reading her answers to the questions posed to her before the Grand Jury, defense counsel objected on the ground that the State was seeking to impeach its own witness. In chambers, the prosecutor indicated that Miss Bryant's answers before this jury and her prior answers before the Grand Jury were contradictory, and came as a surprise to the State. The trial court then indicated it was going to call Miss Bryant as the court's witness. The prosecutor asked the court if he could ask Miss Bryant some questions out of the presence of the jury and have her examine her statements given to the police at the hospital, in a final effort to aid the court in reaching its discretionary decision as to whether Miss Bryant should be called as the court's witness. Defense counsel objected to this procedure done out of the jury's presence but the trial court overruled the objection.
Replying to the prosecution's questioning, with the jury not being present, Miss Bryant testified that she saw nothing happen to Willie Brown on June 11, 1966. In response to further questioning by the State, Miss Bryant testified that she saw the defendant slap Brown and ask him about the defendant's money. When Brown started laughing and stated he did not have his money, the defendant shot him and also shot Robert Hill, defendant's brother. The State then asked that the jury be returned and the trial court indicated that it was not going to call Miss Bryant as the court's witness but rather, she would remain as the State's witness.
In the presence of the jury now, Miss Bryant testified that she saw the defendant shoot the deceased near Sportsman's Corner Tavern, after a conversation concerning the decedent's possession of the defendant's money. The deceased was holding a baby at the time of the shooting. She heard three shots fired. On cross-examination, she stated again that she saw the defendant shoot the deceased on the night in question. Earlier in the evening she had seen the deceased fighting with an unnamed man, knocking him down, and attempting to hit him in the head with some object. The fight was stopped but not before the deceased had pushed and argued ...