APPEAL from the Circuit Court of Lake County; the Hon. LLOYD
A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE GUILD delivered the opinion of the court:
Following a jury trial, Willie Baltimore was found guilty of murder, convicted and sentenced to serve a term of 30-60 years in the penitentiary.
A number of issues are raised in this appeal which we will consider separately including the question of whether the conviction should be reversed because (1) defendant was denied discovery of two documents relating to other persons who were present at the scene of the shooting, (2) whether in-court identification of any eyewitness should have been excluded as being without origin independent of a suggestive procedure at the police station, and (3) a question of conflict of evidence including the admission and rejection of certain testimony. We also consider the question, sua sponte, of the jury's deliberations.
On the night of February 21, 1970, the deceased, Gean Saulmetellus (sometimes referred to as "Metellus" in the record), and his friend, Pedro M. Montalvo, drove about for three hours. Both men carried large amounts of cash, Montalvo having $200. They stopped at a number of places and arrived at the High Chapparal, a teen-age nightclub in Waukegan about 10:30 P.M. where Metellus offered money to a Jimmy Coleman to find them prostitutes.
When the High Chapparal closed at 2:00 A.M., a large group of people poured out onto the sidewalk and street. Saulmetellus and Montalvo, sitting in their car parked in front of the club, called several youths and girls over, again discussing prostitutes. Several persons including Jimmy Coleman, John Coleman, and defendant went over to the car, which Saulmetellus drove slowly down the street following several girls. The men in the car again called several people over, and while they were haggling about money, Saulmetellus was shot twice, and died several hours later.
Montalvo testified that he heard a shot, turned around and saw Baltimore. Saulmetellus tried to grab the man, and Baltimore was standing there when a second shot was fired. Montalvo testified he never saw a gun, but saw fire coming from Baltimore's hand. At the time he heard the two shots there were three or four people on the driver's side, two of them were girls, and Baltimore was allegedly wearing a leather jacket.
Jimmy Coleman, another eyewitness called by the State described Baltimore's clothing that night, including a black leather jacket, although he did not recall what he himself had been wearing, nor whether he'd been wearing a coat although the weather was cold. Shortly before the shooting, Coleman said Baltimore declared he was going to get money from Metellus, displayed a .25 caliber automatic pistol and laughingly said, "I'm going to shoot him." He said he saw Baltimore walk over to the driver's side of the car and stand there with two girls when a shot was fired. The deceased lunged at defendant and another shot sounded. Coleman then ran to the apartment of Arthur Barnes where he alleged Baltimore appeared shortly afterwards and announced he had shot Saulmetellus in the leg and head. On cross examination Coleman denied having a gun that night, and a defense investigator testified Coleman had previously stated Saulmetellus had a lot of money and had shown it to him.
Barbara Geater, a 15 year old girl, testified Baltimore wore a black leather jacket, that Jimmy Coleman was not at the driver's side of the car at the time of the shooting, and said she saw flashes coming from Baltimore's hand. After the deceased fell to the ground, she said Baltimore stood over him and reached down checking his pockets. She acknowledged being a good friend of Junella Wilkins, and knowing Johnny and Jimmy Coleman.
Oscar Wright, a 12 year old boy who was warming up his mother's car said the defendant ran past him after the shooting wearing a black leather jacket.
Junella Wilkins, an eighth grade student, testified defendant wore a black leather jacket and called her over to the driver's side of the car saying the man wanted to buy two girls. She heard a shot, saw deceased grasp his leg, get out of the car, and start wrestling with defendant who shot him again. She saw a gun in defendant's hand and saw him go through the deceased's pockets after he fell to the ground. All this happened while Jimmy Coleman was standing on the sidewalk. She knew Jimmy Coleman, but he was not a friend. She also knew his brother John Coleman, who was a friend, and she was related by marriage to another witness, Mary Simmons.
Mary Simmons (17) was called by the State in rebuttal over defendant's objection. She testified similarly about the shooting, said she had known defendant about a month, had never been "real close" to Jimmy Coleman, but had been real close to John Coleman whom she had known four years.
Jimmy Coleman's testimony on the witness stand was in conflict in several instances with his pre-trial testimony. On cross-examination at one time when he was asked if he had lied previously, he responded "I may have" and when asked if he were only honest with people he knew, he responded "Yes."
Junella Wilkins on the witness stand stated that Willie Baltimore was wearing a black leather coat but she had previously stated he was wearing a velvet jacket. Likewise, Mary Simmons had said he was wearing a velvet jacket but on the witness stand she too stated he was wearing a black leather coat.
Several of the witnesses could not recall what any of the others were wearing but six witnesses including Coleman testified Willie Baltimore was wearing a black leather coat.
Examination of the record as a whole discloses many discrepancies in the State's witnesses' testimony, including Darrell Ringgold who said Baltimore came to the house or apartment of Arthur Barnes after the shooting and stated that he had shot the victim in the head but at the trial Ringgold said he "really did not know whether he said it or not."
This court is somewhat astounded at the conflicting testimony found in the record. No useful purpose would be served by reiterating the conflicting testimony. Prevarication would seem to predominate in the case of a number of the occurrence witnesses.
• 1, 2 Additionally, the State contended that Willie went to the Barnes apartment after the shooting. This, Baltimore denied. The trial court after determining Ringgold was lying, either at the trial or before, properly, refused to call him as the court's witness. The court then held that further testimony as to Willie's presence at the apartment was cumulative in rebuttal, but Coleman had placed Willie at the apartment where Willie allegedly said "He put the gun up to his head (the victim) and pulled the trigger." It would appear that the testimony, if any, of the other occupants of the apartment was highly relevant after the defendant had denied going to or being in the apartment.
Another inconsistency appearing in the record which is not explained is with relation to the number of men on the driver's side of the car when the driver Saulmetellus was shot. Coleman in his statement taken by the defense before trial, stated that there were two men on the driver's side, but at the trial testified that only Baltimore was on the driver's side. Mary Simmons also testified that "another boy" was on the driver's side.
The witness Montalvo allegedly stated to the defense before trial that there were two or three men on the driver's side.
• 3 The defense filed a comprehensive pre-trial motion for discovery to which the State responded. During the presentation of the State's case in chief, after the testimony of Montalvo and Coleman, the prosecution turned over to defense counsel the police file of the incident except for two documents. Although the defense specifically requested production of these documents, it was not aware of their contents until the trial was concluded. Defense counsel first read the documents when they were attached to a probation report and thereafter incorporated them into a motion for a new trial. It stated that prior to trial defense counsel had no knowledge there could be any ...