APPEAL from the Circuit Court of Cook County; the Hon. MINOR
K. WILSON, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a conviction, after a jury trial, for involuntary manslaughter *fn1 for which he was sentenced to a term of six to ten years.
On appeal he contends: (1) that the court erred in denying his pre-trial motion to suppress certain identification testimony; (2) that defendant was denied a fair trial by the prejudicial conduct of the prosecutor; and (3) that he was not proven guilty beyond a reasonable doubt.
The indictment charged defendant, together with Lawrence Davenport and Oliver Betts, with the murder of 13 year old Shirlene Jones. Davenport pleaded guilty to voluntary manslaughter and was sentenced to five to 12 years. Betts testified for the State at defendant's trial and subsequently pleaded guilty to involuntary manslaughter. He was sentenced to one year 11 months and 27 days which he had already served prior to the entry of his guilty plea.
The following relevant testimony was elicited at the pre-trial hearing to suppress the identification testimony of Edward Jones, brother of the deceased, who identified the defendant (as the person holding the gun just prior to the shooting) at a line-up held about one and one-half hours after the shooting and subsequently at the trial.
Burleigh Lester, a Chicago police officer, was called as a witness by the defendant. On the night in question, August 28, 1968, he was on patrol in the district where the shooting occurred. He received a flash message from the Communications Center that an individual had been shot at 6632 South Peoria (the deceased's home). He also received a flash message from a squad car at the scene, giving a physical description of the offenders. He believed three men were described: the first was described as 18 to 19 years old, Negro, about six feet, 170 pounds, wearing blue jeans and a black shirt; the second, 18 years old, five feet seven inches, 150 pounds wearing blue jeans and a long sleeved green jersey shirt; the third, a Negro, wearing a white shirt, and the same height as the second offender. The instant hearing was being held two years after the alleged incident but Lester still had an independent recollection of the aforesaid descriptions. He did not make out a police report. He and his partner cruised around the area looking for the offenders. He saw three male Negroes matching the given description at 65th and Sangamon. The three youths were walking on the sidewalk; they were the only three around. Before Lester stopped them, he and his partner had "talked to several people [teenagers] on the street, in the area." The three youths arrested were the defendant, Lawrence Davenport and another youth whose name Lester couldn't recall. After making the arrest, Lester searched the youths but found no weapons. The defendant was wearing blue jeans and a long sleeved green jersey shirt. The "only reason I [Lester] arrested them was from the description that I had received * * *." Lester then placed the three youths in the squadrol and drove to St. Bernard's Hospital. There he saw Officer Eddie King and told King that he had just picked up three suspects who fitted the descriptions given. Lester then took the youths to the police station and later turned them over to Officer King. Lester made no other arrests regarding the subject incident.
On cross-examination Lester stated that the place of the arrest was two and one-half blocks from the scene of the shooting. The arrest was at 10:30 P.M., ten minutes after he received the radio message and approximately 15 minutes after the shooting.
On redirect, Lester stated that it was common to receive a message from another police car rather than the Communications Center. He had reviewed an arrest report in the State's Attorney's file prior to coming to court.
Officer Eddie King was called by the defendant. He was on patrol on the night of the shooting. He first heard about the shooting at 10:15 P.M. from a message sent by the police Communications Center. He proceeded to 6632 South Peoria, picked up the body of a young girl (the deceased, Shirlene Jones) and drove to St. Bernard's Hospital. He did not recall seeing Officer Lester at the hospital but did recall conversing with him at the police station.
Edward Jones was called by the defendant. He identified the defendant at an eight man line-up held late that night. He stated that the defendant had "blue coveralls" at the time of the shooting and had nothing "on top."
Leo Wilkosz was called by the defendant. He is a Chicago police officer and conducted the line-up at which Edward Jones identified the defendant. He believed the defendant was dressed in blue jeans and a long sleeved turquoise jersey-type sweater.
The motion to suppress the pre-trial identification and any subsequent in court identification of the defendant by Edward Jones was denied.
The following testimony was elicited at the trial.
Edward Jones testified for the State. He was the brother of the deceased, Shirlene Jones. He and his family live at 6632 South Peoria. On August 28, 1968, at about 10:15 P.M., he saw, through the front window of his house, a group of 10 or 12 boys crowded around his brother's (Levi Jones) motorcycle. He and his mother went onto the front porch and then walked down the stairs and stood near the sidewalk. One of the youths turned toward him and said, "[W]hat do you have to do with this?" The witness answered, "[W]ell, that is my brother." A few of the boys turned and walked toward the witness and his mother. The other members followed and the witness noticed a gun. "I saw a gun, one gun." Jones then identified the defendant as the person holding the gun. When Jones saw the weapon, he told his mother, "[C]ome on, let's go in the house." They walked up the stairs and he opened the door for her. They went in and as the door closed he heard a series of shots. He saw his sister, Shirlene Jones, who had been standing behind the door, lying on the floor bleeding. He didn't see who fired the shots. He immediately went back outside and saw the same group of boys running away from the house. He gave chase after them. On cross-examination Jones stated that before the shooting the group was standing 50 to 60 feet from his front porch. He saw no one else with a gun but the defendant. He observed the group for about seven seconds. He was positive that he saw the defendant even though he only saw him for a few seconds. He was about 15 to 18 feet from the group when he walked down the porch to the sidewalk. The defendant did not have a shirt on. Jones did not give a description of the defendant to anyone on the night in question. On redirect Jones stated that about an hour and one-half after the shooting he identified defendant at an eight man line-up at the police station.
Mrs. Cora Jones, mother of the deceased, was called by the State. Her testimony concerning the events which took place at her home on August 28, 1968, essentially corroborated the testimony of her son, Edward Jones, set forth above, including an in court identification of defendant as one she had seen in the group ...