APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 13, 1971.
The defendant, Grady Kimbrough, was indicted for murder. After a trial by jury, he was found guilty and was sentenced to the Illinois State Penitentiary for not less than twenty nor more than thirty years. On appeal, the defendant contends: (1) that the trial court erred by admitting into evidence hearsay testimony of a highly prejudicial nature; (2) that the motion to suppress physical evidence, i.e., a .38 caliber pistol, was erroneously denied; (3) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; and (4) that the trial court erred by permitting a gun to be introduced into evidence.
Prior to trial a hearing was held concerning defendant's motion to suppress the alleged murder weapon. At this hearing, Officer Wesley Broderson of the Chicago Police Department testified that he had been assigned to conduct a follow-up investigation in the murder of J.D. Davis. Davis had been shot to death on September 18, 1966, in the Smoot Village Tavern, 2658 W. Van Buren Street, Chicago. During the course of his investigation in the early morning hours of September 19th, Officer Broderson was informed by one Joyce Brown, an alleged eyewitness to the offense, that the perpetrator was a man named "Sweets." Miss Brown led Officer Broderson to "Sweets'" employer where the officer determined the identity of the defendant. Broderson then proceeded to 2732 West 26th Street, an address indicated on the defendant's employment records, and had a conversation with one Anita Roman, the defendant's sister. Miss Roman told Broderson that the defendant did not reside with her and she denied any knowledge of the defendant's whereabouts. Broderson then searched the apartment and encountered five or six children. From one of these children the officer obtained an address of 6831 South Stony Island Avenue, the address of defendant's mother. The officer proceeded with haste to the Stony Island address and knocked at the door of a third floor apartment. A woman answered and asked Broderson what he wanted. Broderson identified himself and explained his purpose. The woman asked him to wait a moment. The officer testified that he then heard the sound of running and other loud noises from within the apartment. He then pushed in the door and ran through the apartment to the back porch. He heard footsteps going down the back stairs and he ran down to the second floor porch. He indicated that he then observed a shape moving across the roofs which were adjacent to the porch. He saw this shape go over the edge of the third roof and heard "what sounded like feet landing in the alley," followed by the sound of running.
Officer Broderson stated that he returned to the third floor apartment and conversed with the woman who was there. He learned that she was Nora Evans, the defendant's common-law wife. According to Broderson, Miss Evans then told him that she didn't open the door right away because she feared that someone would get shot. The officer further testified that he was informed by Miss Evans that the defendant, Grady Kimbrough, had been in the apartment and had left a gun there. Broderson stated that he noticed a purse lying on a desk and asked Miss Evans if the gun was in the purse. She replied that it was and Broderson opened the purse and removed a ".38 caliber police special revolver with five live cartridges and one empty that had been fired." Miss Evans was then taken to the police station for additional questioning. Broderson stated that he had no search warrant for the premises at 6831 South Stony Island.
Anna M. Jones testified that she was the defendant's mother and was residing alone at 6831 South Stony Island during September 1966. Mrs. Jones was unable to recall specific dates, but stated that Nora Evans had stayed overnight with her on one occasion during September 1966. The next morning Mrs. Jones left for work about 6:00 A.M. and Nora Evans remained in the apartment. When she returned from work about 4:00 P.M., Mrs. Jones found that Miss Evans was gone, the doors were wide open and the apartment was "ramshackled." Miss Evans informed her the next day that the police had searched the apartment. Mrs. Jones was not present during the search and gave no consent for the search. She indicated that she was awakened by police about 3:00 A.M. on a morning subsequent to the search and was taken to the police station.
Upon the foregoing evidence, the court denied the defendant's motion to suppress the alleged murder weapon. The court found that Officer Broderson had reasonable grounds to believe that Grady Kimbrough had committed the crime, that Kimbrough was within the premises at 6831 South Stony Island Avenue, when he arrived there and that a weapon, which was an instrument involved in the crime, was within the premises. Thus, the court concluded that the search was reasonable under the circumstances of the case. The court also noted that the defendant did have standing to challenge the legality of the search.
At trial, the State's first witness was Henry Robinson. Mr. Robinson testified that he arrived at the Smoot Village Tavern about 4:00 P.M. on September 18th. He drank a beer and then played pool. About 5:30 P.M. he went to the bar and ordered another beer. The deceased was sitting at the bar and a young man with two women was standing nearby. Robinson noticed the young man put some money in the juke box and Robinson asked him "to punch a number for me." The young man gave Robinson a quarter and told him to play what he wanted. Then, according to Robinson, a woman came over to him and started cursing at him. Robinson told her to get back and she ran over to another man who was sitting on a radiator near the door. The woman put her hand in the man's shirt and Robinson "rushed to him and pushed both of them out of the door." Robinson stated that he started for the men's room and "[t]hen I heard someone scream and I looked back and when I looked back toward the door, I seen an arm go up and at that particular time I jumped over the bar." He then heard a shot. At the time he heard the shot, Robinson was laying on the floor behind the bar. When he got up several minutes later he saw the deceased lying on the floor. Robinson did not see who fired the shot which killed J.D. Davis and was unable to identify anyone in the courtroom as the man with whom he had altercated.
Nellie Diggs, a part-time waitress at the Smoot Village Tavern, testified that there were about twelve or thirteen people in the tavern at 6:45 P.M., September 18, 1966. A Puerto Rican man and two Negro women came into the tavern and, shortly thereafter, a fellow wearing a trench coat entered. The fellow wearing the trench coat ordered a beer and went over to sit on a radiator. The Puerto Rican man and the two women played the juke box and danced. The witness saw Henry Robinson go over to the juke box and overheard Robinson quarreling with one of the women. Miss Diggs stated that she heard Robinson call the woman a dirty name and then saw the woman go over to Kimbrough, the man in the trench coat. Robinson followed her and a brief scuffle ensued among the woman and two men. The three went out the door into the vestibule. Miss Diggs indicated that she then saw Robinson re-enter the tavern and run toward the men's room. She saw Kimbrough, who had a gun in his hand, run back into the tavern and fire across the bar at Robinson. After the shot was fired, Miss Diggs stated that she saw a man, who had been sitting at the bar drinking, fall off his stool onto his back. Most of the tavern patrons then ran from the premises.
The witness was shown a gun (People's Exhibit No. 1) by the prosecutor and was asked if she had ever seen it before. She responded: "The handle looks familiar, the handle was the same color. I don't know whether it is the same gun, but the handle was the same color." The witness was then asked to demonstrate how the defendant walked into the tavern with the gun and fired across the bar. After doing so, she testified that the deceased had been shot between the eyes.
After the testimony of Charles Davis, an uncle, who served as the life and death witness, the State requested that Nora Evans be called as a court's witness because the State could not vouch for her veracity. The prosecutor indicated that Miss Evans had significantly changed the story which she had told the police shortly after the offense. The court denied the State's request and suggested that she be called as a State witness "until showing is made that there is just cause for the calling of her as the court's witness."
Dr. Eugene Tapia, Assistant Director of Pathology at the Cook County Coroner's Morgue, testified that J.D. Davis died of a close range bullet wound in the brain. The pellet was removed from the deceased's brain and was given to the police.
Officer Wesley Broderson testified substantially the same as he had at the motion to suppress hearing. The prosecutor showed him People's Exhibit No. 1 and the officer indicated that it was the same gun which he had removed from Nora Evans' purse.
Detective Anton Bielski testified that Officer Broderson gave him a gun which he took to the Crime Detection Laboratory. He identified People's Exhibit No. 1 as being the same weapon. The officer also took the pellet which ...