APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT: A jury in the circuit court of Cook County found the three 17-year-old defendants, Theodore Collins, Jessie Davis and LaMarr Masse, guilty of the murder of Roy Gutmann, and each was sentenced to imprisonment for not less than 100 nor more than 150 years. Nathaniel Plenty had been indicted with the defendants but was granted a severance. Direct appeals to this court upon constitutional grounds were taken by each defendant, and the cases were consolidated in this court.
About 9:00 P.M. on April 22, 1968, Roy Gutmann, 21, a student at the University of Chicago, was killed at 1309 East 56th Street, Chicago, by a shotgun shell fired into his head from a distance of a few feet. Three witnesses for the prosecution, James Richardson, 17, Gerald Wells, 16, and Gene Rogers, 15, were in the immediate vicinity when the shot was fired. Richardson testified that the three, together with Ronald Gentry, were at the intersection of 56th Street and Kimbark Avenue (1300 east) at about 9:00 P.M. They were walking west on the north side of 56th Street, which runs east and west. They passed three young Negro boys, whom they were not able to identify, walking east on the opposite side of the street. They also saw, about a half block behind the others, a lone Negro boy approaching the three. Richardson identified this individual as the defendant Davis and testified that "he had something, it was a barrel of a rifle or shotgun * * * hanging by his leg." The Richardson group continued walking west, heard a shot, turned and looked behind them, saw nothing, and began to run. The testimony of Wells and Rogers was generally the same, but Wells was unable to identify the lone boy, while Rogers identified him as Davis but was unable to identify what he was carrying.
The State then called Joe Robinson, Jr., age 17, who testified that he had known each of the defendants for several years, but that he had not seen any of them on April 22, 1968. On the ground that it was surprised by Robinson's testimony, the State moved that he be called as a court's witness and supported its motion by reference to a statement he had allegedly made to the police on May 1, 1968. The motion was allowed. Robinson then testified on cross-examination by the State that the three defendants were his friends, and that he had seen each of them eight or ten times during April of 1968. He denied that he had had a conversation with a police officer in a police station concerning the Gutmann shooting. He was shown his alleged May 1 statement, and he then admitted that he had been in a police station. He testified that he remembered the preliminary questions that he had been asked and the answers that he had made to those questions, which concerned his name, address, age and the school he attended. The cross-examination continued, with the State's Attorney reading each question and answer from the statement. The attorneys for the defendants objected upon the ground that the statement was incompetent and inadmissible. The prosecutor replied that he was reading the questions and answers only "for the limited purpose of impeachment," and on that ground the court overruled the objection.
The witness Robinson denied making the following answers contained in his alleged statement:
"A. On the day this man was killed in Hyde Park they [Jessie, Theodore, Nate and my cousin "Lamont"] were all up there at my house about five oclock and Jessie had this package wrapped in a brown paper bag. Theodore asked my mother if I could go out to 63rd street to his grandmother's, and my mother said I couldn't go. My mother asked Theodore what he had in the package, and he said just some whiskey and my mother told him not to let the police catch him. About fifteen (15) minutes after five, they left and went out and Jessie and Nate went on down stairs and I saw Theodore look into the bag and I saw the shotgun and he was looking to see if any bullets and asked me if I had any bullets and I told him I didn't have any and Lamont said he had some at home and Jessie told him to go and get them and they all left.
Q. When did you see them again?
A. When they all came back, Theodore and his little brother came back to my house about midnight and told me to keep quiet, and the next day Lamont told me what happened and that he had acted as look-out and Theodore shot a white man in Hyde Park, but he didn't tell me where the man was shot.
Q. Where did the shotgun that was used come from?
A. Lamont stole from his grandmother about two (2) weeks before this happened and his mother found it under the bed in his home and brought I mean Theodore's mother found it under, the gun, under his bed after Lamont had brought the gun to Theodore's house and put it in the garbage can and Theodore took it out of can and brought it in the house. This is what Lamont told me. And Theodore told me he sawed the barrel off, and I saw it real smooth.
Q. Did Lamont tell you which way they went after the man was shot?
A. No he didn't tell me that.
Q. What kind of clothing were they wearing when they left your house?
A. They were all dressed in blacck (black) pants, black shoes and black jackets and Theodore had a 3/4 length leather coat and he was carrying the gun.
Q. When they asked you to go with them did they tell you what they were going to do?
A. No, they didn't tell me what they were going to do.
Q. What did they tell you when they came back around midnight?
A. Theodore told me they had shot a white man and the next day Lamont told me they had shot that man in Hyde Park.
Q. Have you seen Theodore, Lamont or any of the other two since the next day?
A. Lamont told me that the police picked him up and took him to question him about the man getting killed and that he didn't say anything. Theodore told me he was picked up about five o'clock and taken him to the police station and talked to him about the man who got killed and beat him up and told me that if the police picked me up for me not to say anything even if they beat me up.
Q. Did either Lamont or Theodore tell you anything about not knowing each other?
A. Theodore told me that the police asked Lamont if he knew him and Lamont said that he had never seen Theodore and asked me why Lamont would lie like that.
Q. Is there anything more you can tell us about this?
A. Right now this is all I know.
Q. Are you and Lamont in fact cousins?
A. Yes, my mother is related to ...