APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 30, 1971.
Defendant, Mohammed Skikada Mostafa and three other men not involved in this appeal, were jointly charged with murder. For reasons which will appear, defendant alone went to trial before a jury and was found guilty. The court sentenced him to serve twenty-five to thirty-five years.
Four points argued by the defendant require consideration. (1) The trial judge committed error when he allowed the jury to hear incompetent testimony; (2) it was an abuse of discretion when, at defendant's request, the trial judge refused to call Aaron Myers as a court witness; (3) the trial judge committed error when he refused to give an instruction which was necessary to inform the jury of the rule it was to apply in judging the testimony of accomplices; and (4) the evidence failed to prove defendant guilty beyond a reasonable doubt.
On Saturday, June 8, 1968, at about 11:00 A.M., a two-door Buick automobile, driven southerly on South Calumet Avenue by a man named Aaron Myers, stopped a few doors south of East 51st Street in Chicago. Michael Walton, a passenger who was next to the driver, and Robert Walton, who was seated in the back seat with a young woman, Sallie Miller, left the automobile and walked across the street to the Supreme Grocery, on the southeast corner of East 51st Street and South Calumet Avenue. They entered the premises and fatally shot Abder Rayyan, a Jordanian, co-owner of the store. The two killers left the store, ran to the car driven by Myers and drove away. That evening, Myers was arrested. On Monday, June 10, Robert Walton, Michael Walton and Sallie Miller left Chicago and, after intermediate stops, went to Alabama.
A federal warrant charging them with unlawful flight to avoid prosecution for murder was issued. On July 21, 1968, Sallie Miller returned to Chicago. Her mother called agents of the Federal Bureau of Investigation who came to her home and took her into custody. She was questioned and then turned over to state prosecuting authorities. The next day, defendant was arrested. On July 30, 1968, Robert Walton, Michael Walton, Aaron Myers and defendant were indicted for the murder of Abder Rayyan.
The State's theory was that defendant solicited the Waltons to assassinate Abder Rayyan; hence he was accountable for their conduct. *fn1 Defendant's theory was that the Waltons killed Rayyan in the course of a robbery. In support of this theory, defendant's counsel, prior to trial, interviewed co-defendant Aaron Myers in the presence of his lawyer and an assistant state's attorney. In a transcribed statement, Myers said that on the morning of the killing the Waltons asked him to get them a car for a robbery.
As its last witness in defendant's trial, the prosecution called William J. Martin. At the beginning of his direct examination, defendant objected on the ground that his testimony was not relevant. The objection was overruled. At the end, defendant moved to strike; the motion was denied. Mr. Martin testified that he was then an assistant professor of law at Northwestern University Law School and taught constitutional law at Rosary College. Before his resignation on December 1, 1968, he was the assistant state's attorney "[i]n charge of special prosecutions, the special prosecutions unit in this office." When the case arose, he was assigned to investigate the killing of Abder Rayyan. In doing so, he spoke with Sallie Miller on July 21, 1968 and the same evening instructed Chicago police officers to withdraw the murder warrant against her. After a conference with the commanding officer of the homicide unit, Chicago Police Department, "[a]rrangements were made to have Miss Miller placed in protective custody."
Under cross-examination, Mr. Martin was asked whether in the course of his investigation he talked with Aaron Myers. He said he had and that a statement was taken from Myers on the day of his arrest. He was asked if Myers' statement mentioned his being hired by the Waltons as the driver of a robbery get-away car. He answered: "My recollection is the word `robbery' was not used * * *. It was unclear as to his reason for driving the car." In answer to one question, Martin said that the murder "[c]harge against Mr. Myers was nolle prossed (sic)." He went on to say that an agreement was reached with Myers concerning disposition of the charge against him in return for his testimony because "[w]e believed that his truthful testimony would indicate he did not know that the Walton brothers were entering the store to commit a murder."
On re-direct examination, Mr. Martin was asked, "[d]uring the course of your investigation I believe you stated that there had been no robbery committed over at this store at 51st and Calumet, is that correct?" He answered, "That's correct, * * *." Defendant objected to this answer on the ground that it was a conclusion. A motion was made to strike it. The court ruled, "To the best of his knowledge. It may stand." When questioned further, Martin told the jury that "[t]he murder charge would not be proceeded against Mr. Myers because there was no evidence that he was involved in the murder." Concerning his experience in criminal cases, the former assistant state's attorney said he had investigated or prosecuted "[s]ay hundreds." He went on to say that "[b]ased upon my experience I believed the charges against Aaron Myers should be dismissed because he did not know a crime was being committed * * * therefore we did dismiss the charges." The record before us, however, shows that it was not until June 26, 1969, after defendant was sentenced, that the murder indictment against Myers was dismissed.
This testimony is the subject of the contention that the trial judge committed error in allowing the jury to hear incompetent testimony. It is argued that when Mr. Martin told the jury he placed Sallie Miller "in protective custody," he prejudiced the jury against the defendant. Moreover, it is argued, Martin gave the jury authoritative conclusions concerning a fact which had to be determined before the ultimate issue in the case could be decided: whether the Waltons went to the Supreme Grocery the morning of June 8, 1968, to commit a robbery. Defendant argues that the testimony, admitted over his objections, first, was prejudicially irrelevant and second, usurped the function of the jury. Further, it put into evidence on a disputed issue the conclusionary opinion of a former assistant state's attorney, a professor of law and a college teacher of constitutional law.
Relevant to the first part of this contention is the testimony of Robert and Michael Walton. Testifying for the State, they told the jury that on two occasions defendant threatened the life of Sallie Miller. Sallie Miller corroborated the Waltons as to one of these occasions. The State's evidence showed the jury that, at the time in question, Sallie Miller was a sixteen year old girl, pregnant eight months with the child of Robert Walton. There was enough to suggest to the jury that prior to trial defendant was at liberty on bail. Thus, implicit in Mr. Martin's testimony that he placed Sallie Miller in protective custody was the prejudicial insinuation that defendant not only would solicit a murder: he would also threaten the life of a pregnant young woman.
• 1, 2 Obviously, the fact that Sallie Miller was placed "in protective custody" did not prove any issue in the case. It was irrelevant. It is the rule that a defendant's guilt must be established by legal and competent proof, uninfluenced by bias or prejudice arising from irrelevant evidence. (People v. Bernette, 30 Ill.2d 359, 371, 197 N.E.2d 436; People v. Battle, 24 Ill.2d 592, 182 N.E.2d 713, and see People v. Novak, 63 Ill. App.2d 433, 211 N.E.2d 554.) Mr. Martin's testimony that he ordered Sallie Miller placed in protective custody prejudiced defendant before the jury. Compare People v. Glickman, 27 Ill. App.2d 379, 169 N.E.2d 815.
Relevant to the second part of defendant's contention is his theory that Rayyan was killed in a robbery. Defendant complains that in derogation of his right to have the jury determine the issue, Mr. Martin was allowed to give the jury his conclusion that there was no robbery when Abder Rayyan was killed. The point is made that, over defendant's objections, Martin was allowed to tell the jury that Aaron Myers was not involved in the murder of Abder Rayyan. Defendant argues that Mr. Martin, a lawyer, professor and law teacher, was allowed to put before the jury his conclusions concerning the nature of the events which accompanied Abder Rayyan's killing and the part Myers played in it.
• 3, 4 It is an elementary rule of evidence that where a jury can make its own deductions, those deductions should not be made by witnesses who testify before it. In every case, therefore, where a jury has the facts which will enable it to dispense with the opinion or conclusion of witnesses from things they have noticed or described, the opinion or conclusion usually should not be received in evidence. (7 Wigmore on Evidence, par. 1918 (3rd ed. 1940).) In the matter about which complaint is made, Mr. Martin gave the jury his conclusion that on the morning of June 8, 1968, in the Supreme Grocery, there was no robbery. It was error to allow this testimony. (People v. Rongetti, 338 Ill. 56, 170 N.E. 14; People v. Reiter, 377 Ill. 27, 35 N.E.2d 364 and see People v. Gleitsmann, 361 Ill. 165, 197 N.E. 557.) It usurped the province of the jury on a fact question: was there a robbery when Rayyan was killed. See People v. Schultz, 260 Ill. 35, 102 N.E. 1045, and People v. Anderson, 406 Ill. 585, 94 N.E.2d 429.
The second contention concerns denial of defendant's request that Aaron Myers be called as a court witness. Myers was, in part at least, an eyewitness to the killing of Abder Rayyan, he was a co-defendant, he had given the police a statement, he had been held in the state's attorney's witnesses' quarters and he had given defendant a statement that on June 8, 1968 the Waltons asked him to get them a car for a robbery. After hearing argument on the State's objections, defendant's request that Myers be made a court witness was denied. Thus, defendant was compelled to call Myers as his witness. Defendant contends that denial of his request was an abuse of discretion, and hence, error. He argues that its effect was to deny him the right to examine a witness in a way he needed for his defense. The State challenges this contention with the argument that defendant did not show the trial judge why he could not vouch for Myers' veracity or integrity; and further, defendant did not show how examination of Myers as a court witness would have revealed any testimony directly bearing on the issues of the case.
• 5-7 The principles governing the calling of a court witness are now well established in our criminal law. A witness may be made a court witness, and subjected to cross-examination by either side, where, for sufficient reasons shown, his integrity or veracity is doubtful and neither side desires to vouch for his testimony. (People v. McKee, 39 Ill.2d 265, 270, 235 N.E.2d 625.) Calling a person as a court witness rests in the sound discretion of the trial judge. (People v. Stoudt, 90 Ill. App.2d 140, 232 N.E.2d 800.) The party requesting that a witness be called by the court must make a showing that manifest injustice would result if the request were refused. People v. Johnson, 333 Ill. 469, 165 N.E. 235; People v. Routt, 100 Ill. App.2d 388, 241 N.E.2d 206.
• 8 The record before us reveals that prior to trial Aaron Myers was listed among those the State could call to testify. He was the only witness to support defendant's theory that Rayyan was killed in a robbery. From colloquy between court and counsel, it appears it was learned that either Myers' lawyer or someone else had intimidated him into retracting the statement he had given defendant. Therefore, defendant's counsel wanted to examine Myers in a way which would allow impeachment, if necessary. A witness called by the court is neither a prosecution nor a defense witness. Both sides may cross-examine him and they are not prevented from impeaching him. People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65.
• 9, 10 The State argues that in any event defendant was able to impeach Aaron Myers by the questions he was asked. This argument overlooks the difference between the right to impeach an ordinary witness and the right to examine a court witness. Generally, the right to impeach an ordinary witness depends on whose witness he is. It is basic that a party may not impeach his own witness. But the right to examine a court witness includes the right to impeach. In the case at bar, had Myers been called as a court witness, he could have been asked about the statement he gave defendant and if he denied making it, the copy which defendant's counsel had in his possession (insofar as portions of it were inconsistent with the denial) would have been admissible for the purpose of impeachment. (Rodenkirk v. State Farm Mut. Automobile Ins. Co., 325 Ill. App. 421, 60 N.E.2d 269; see People v. Williams, 22 Ill.2d 498, 177 N.E.2d 100, and People v. Jarrett, 57 Ill. App.2d 169, 206 N.E.2d 835.) If Myers, as a court witness, denied having made the statement, it would have been prejudicial error to refuse admission of those portions inconsistent with his testimony. (Hapke v. Brandon, 343 Ill. App. 524, 99 N.E.2d 636; Dorf v. Egyptian Freightways, Inc., 39 Ill. App.2d 2, 188 N.E.2d 103; compare Esderts v. Chicago, Rock Island and Pacific R. Co., 76 Ill. App.2d 210, 222 N.E.2d 117.) As a result of the trial judge's refusal, defendant was deprived of the only witness through whom, in an orderly way, he could have established his defense. Plainly, this was a manifest injustice. The record, and the representations of defendant's counsel, disclosed valid reasons for defendant's unwillingness to vouch for Myers' integrity and veracity. Therefore, it was an abuse of discretion for the trial judge to refuse defendant's request that Aaron Myers be called as a court witness.
The third contention concerns refusal of the trial judge to give defendant's Instruction No. 8, which told the jury that in determing credibility of accomplice witnesses they had "[a] right to take into consideration whether [the accomplice witnesses] have been promised consideration in relation to their punishment for their testimony." The State defends this refusal, arguing that the subject of the tendered instruction was adequately covered in People's Instruction No. 3, which the trial judge modified to include the words "or favorable promises" as a concession to the defendant. Moreover, the State argues, the jury was given People's Instruction No. 13.
"People's Instruction No. 3
You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, or favorable promises, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.
You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.
People's Instruction No. 13
An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be ...