APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:
The defendant was indicted for murder, armed robbery and attempted robbery. He was tried by a jury, found guilty of murder and armed robbery, and sentenced by the court to serve a term of not less than 60 nor more than 100 years in the State penitentiary. On appeal he contends (1) the prosecutor's closing argument to the jury deprived him of his constitutional right to due process of law; (2) he was not proved guilty beyond a reasonable doubt; and (3) the sentence imposed upon him was excessive. The facts follow.
On November 22, 1968, a C.T.A. bus going north on Damen Avenue in Chicago was held up by a group of young men averaging 22 years of age. During the incident a woman passenger, Mrs. Walter Zielinski, was shot and killed by one of the robbers. Defendant Lockett, Grover Thomas, Andrew Prim and James Williams were indicted for the robbery and murder. Both the defendant and Thomas gave written statements to the police, with each naming the other as the one who fired the shot.
At the trial the bus driver, Mitchell Bateast, testified that on November 22, 1968, he picked up four male Negroes at Roosevelt Road; that on North Damen the men pulled guns; that one of them James Williams had a rifle which he held on the driver. Bateast heard a shot fired, but did not turn around or see the men in the back of the bus because of the rifle pointed at him.
William Reed, a passenger, testified that he was talking to the driver when Williams pulled the rifle and announced a holdup. Reed then sat down and heard a shot, but did not turn around to see the back of the bus.
Guernsey Romaine testified that he was in the rear of the bus when the holdup was announced. He stated that he had been drinking, and because his vision was impaired he could not identify anyone. However, he did testify that the killer was about six feet tall and weighed about 170 pounds. [Defendant is six feet one inch tall and weighs 150 pounds. Grover Thomas is five feet eight inches tall.]
Dorothy Harris, another passenger on the bus, testified that she saw a man with a rifle and heard him announce a holdup, and also saw a man in the back of the bus with a pearl-handled revolver. She stated that she saw Mrs. Zielinski shot, but since she was turned away from the killer she could not see his face.
William Giersz testified that he sat in the middle of the bus, facing forward, during the robbery and did not see the man shoot Mrs. Zielinski. Giersz's wallet was taken by the robbers.
Emelindo Maldonado testified that he boarded the bus with Mrs. Zielinski and sat in the rear, directly behind her. He testified that the defendant was one of four men who boarded the bus at Roosevelt Road; that two of the men took the bus driver's money; that defendant Lockett robbed him, then went over to Mrs. Zielinski, attempted to take her purse, then shot her. He stated that he identified the four robbers from police photographs and identified defendant in court as the one who shot Mrs. Zielinski.
Grover Thomas testified that he boarded the bus with defendant Lockett, Prim and Williams, assuming that they were all going to visit a girl. He stated that the defendant and Williams perpetrated the holdup, the defendant with a pistol and Williams with a rifle; that defendant took a wallet from a Mexican, handed it to the witness, then tried to take a purse from a woman passenger, and shot her. The witness left the bus by the rear exit, threw the wallet into the street and ran to a friend's house. After his arrest the next day he went to the State's Attorney's Office on the advice of his attorney, and had been in the witness quarters since April 22, 1969.
The defendant testified that he boarded the bus a block after Prim, Williams and Thomas boarded it, and took a seat behind Thomas near the rear exit door. He stated that Williams pulled a rifle, went to the front of the bus and held the rifle on the driver; that Grover Thomas had a pistol, and the defendant saw him tussling with Mrs. Zielinski, then heard a shot. The defendant left the bus and ran home. He was arrested later and gave the police a statement. We proceed to a consideration of his first contention that the prosecutor engaged in prejudicial misconduct in his closing argument, depriving defendant of his constitutional right to due process of law.
In his final argument to the jury the prosecutor said:
"Counsel has raised inferences that Grover Thomas has been made promises. I guarantee you that as the lawyer for the State no promises have ever been made to Grover Thomas. He is yet to be prosecuted. He says, well, if no promises were ever made to you, Mr. Thomas, how about your lawyer? Do you remember who Grover Thomas' lawyer was? Lee Lebeck, an attorney who practices in the loop. There is no evidence for you to consider that any promises have ever been made to Lee Lebeck. Grover Thomas said there wasn't and counsel, if he so chose, could have subpoenaed Lee Lebeck into court and ask him himself, but he didn't do that."
Defendant argues that by this comment the jury was left to conclude that the remarks were true; that the failure of defense to call Lebeck as a witness proved the State's denial that any promises were made to the alleged accomplice, Grover Thomas, to induce his testimony. Defendant further argues that the prosecutor was giving evidence without being ...