APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant was convicted after a jury trial of the offense of murder. Judgment was entered and he was sentenced to a term of twenty-five to fifty years. *fn1 On appeal defendant contends: (1) that he was not proven guilty beyond a reasonable doubt since (a) the State's evidence as to identification is vague, uncertain, conflicting and contradictory and (b) the State's evidence is insufficient to prove him accountable for the offense charged; (2) that the trial court erred when it failed to grant his motion for a mistrial based on an improper polling of the jury; (3) that the trial court erred in refusing to grant his motion for a new trial based on the prosecutor's prejudicial comments; (4) that the trial court erred in denying his motion for discharge for lack of a speedy trial; (5) that the trial court erred by refusing to give an identification jury instruction; and (6) that he was denied a fair and impartial trial.
The testimony of the witnesses, particularly those which concerned the identification of defendant, may be summarized.
Testimony of James Shead, for the State:
He is eighteen years old and is a member of the Falcons, a branch of the East Side Disciples. On September 8, 1968, he was on the northeast corner of 65th and University at about 10:00 or 10:30 P.M. with ten or twelve other people. While he was standing on the corner, facing west, he saw a red Chevrolet coming east on 65th, but he could not recognize anybody in the car. However, as the car turned north on University he recognized Hairston. There were four or five other boys in the car but he could not recognize any of them. As the car began to make the turn he told everybody to look out and they started running. He saw Hairston, wearing a lime green short sleeve sweater, sitting in the front seat on the passenger side, start shooting. Five or six shots were fired. He did not see Booker Ransom, the decedent, get up.
The red Chevrolet proceeded north on University, and when the shooting stopped he ran towards Erin Evans' parked car. He got in the front seat passenger side, Raymond Thomas got in the back seat and Evans got in behind the driver's wheel. Arlene Mancil was already in the back seat when he got into the car. Evans' car had been in a wreck and the front left headlight was bent and shone on an angle. Evans had to drive with his brights on.
Evans' car proceeded north on University to 63rd Street and when Evans' car reached 63rd Street he saw the red Chevrolet stopped at a red light one block east at 63rd and Woodlawn. As Evans' car turned right on Woodlawn behind the red Chevrolet, he saw Hairston sitting in the front seat by the door, the same position as when he saw Hairston when the red Chevrolet was turning left at 65th Street. The red Chevrolet turned left on 64th at Woodlawn and Evans' car followed. At this time he saw defendant sitting in the back seat behind the driver. The red Chevrolet speeded up and traveled about five blocks east on 64th until it made a right turn at Blackstone. Evans' car could not make the turn and returned to 65th and University where he saw Booker Ransom lying in the street. The police arrived about a minute later and the witness spoke with the officers. Later that night he went to Billings Hospital and then to the police station where he gave and signed a written statement.
He knew defendant for about two years and had seen defendant more than two hundred times. He did not identify a red Chevrolet after September 8th. He saw one but he could not identify it.
On cross-examination he admitted making and signing a two page statement to the police on the night of the shooting of Booker Ransom. He also made a statement to the police upon returning to the scene of the shooting. He discussed with the policeman what happened and what he observed. He later gave the written statement answering the questions put to him "freely and willingly." He said, "I told them everything I knew about the occasion." When he spoke to the police the night of the shooting and in his written statement, he told them that he could recognize only one occupant of the red Chevrolet, Hairston. He only described Hairston. He added defendant's name as an occupant of the car when he testified before the Grand Jury.
On re-direct he stated that he knew that defendant had two brothers, one who uses a different name, Elton Wicks, and that he knew defendant was Wicks' brother.
On re-cross he testified that in his signed statement he said Evans' car followed the red Chevrolet to 64th and Blackstone and that he got a good look at Hairston but he could not make out who the other passengers were. He added defendant's name when he saw defendant and recognized him the next night at the police station.
Testimony of Erin Evans, for the State:
He was on the northeast corner of 65th and University at about 10:30 P.M. on September 8, 1968, when a red Chevrolet turned the corner and James Shead told everybody to look out, and about five or six shots were fired from this red car. He did not see who fired the shots. He jumped into his car along with Shead and Raymond Thomas; a girl named Arlene was already in the car.
His testimony as to the route followed in pursuing the red Chevrolet was essentially the same as Shead's. He could not see how many people were in the red Chevrolet. He saw Hairston twice during the pursuit, once at 63rd and Woodlawn, where the lighting was good, and again when the red car turned off 64th at Blackstone.
He knew defendant for about nine years but he did not see defendant on the night of September 8th. His car had been in a wreck and his right front light was "all jiggled up." He had to use his brights which were on when he made the turn at Woodlawn.
Testimony of Raymond Thomas, for the State:
On September 8, 1968, he was a member of the Falcons, a branch of the East Side Disciples. About 10:15 P.M. on September 8th he was on the corner of 65th and University with about ten or twelve other people. He heard James Shead say, "Get low' and then he saw a red 1964 Chevrolet which was traveling east on 65th. As the red Chevrolet was about to turn he saw Hairston in the front seat passenger side, and defendant, somewhere in the back. He heard defendant say, "Blackstone, kill them all." He then saw someone's hand come out of the front seat passenger's side with a gun and begin to shoot. After the shooting stopped he ran to Evans' car. Arlene, Larry, Shead and Evans were in the car with him. He got in the back seat with Arlene.
The next time he saw the red car was at 63rd and Woodlawn but, "I could not see any of the people in the red car at that time." After the red Chevrolet turned east on 64th and Evans followed, he saw Hairston turn around. He did not see defendant at this time. He saw defendant as defendant turned around when the red Chevrolet reached Kenwood. After Evans' car returned to 65th and University he went home. He did not go to Billings Hospital or to the police station.
During the evening of September 9th he was with Ford Ransom, the decedent's brother, at 65th and University when he saw defendant and he told the police. The police stopped the car that defendant was in. Later he went to the police station and gave and signed a written statement.
On cross-examination he testied that when he was in Evans' car he sat in the back seat on the right hand passenger side. When he first saw the red Chevrolet from Evans' car he stuck his head out of the window and saw one person turn around. He then put his head back inside the car and saw the other person (defendant). He could see through Evans' windshield and through the red Chevrolet's back window. Both cars were going "kind of fast." Evans never used the spotlight on his car but he did use his brights which shone straight ahead. Evans turned on his brights at 63rd and Woodlawn. Evans' car was in good condition.
When the red Chevrolet approached 65th and University someone said "get low" and he hit the ground and held his head down. ...