APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This is a direct appeal from the circuit court of Cook County which, after a jury trial, adjudged defendant Charles Clark guilty of the murder of John Collins, a Chicago police officer, and, pursuant to the jury's recommendation, sentenced him to death.
During the trial, Roger Van Schaik testified on behalf of the prosecution that on December 13, 1967, he was a garage employee of Sears Roebuck at that company's store at 79th and Kenwood in Chicago. At about 8:00 P.M. on that date, while in the process of assisting a woman in starting her car in the Sears parking lot, he observed a white man chasing a Negro man, the former shouting "halt" and discharging a gun into the air. The two men ran across Kenwood Avenue and into a gangway, whereupon Van Schaik heard a scuffling sound and another shot. When he got to the gangway he observed the Negro man running out a back gate on the premises and the white man leaning alongside a house and slumping to the ground. The witness directed the people in the house to call the police. Van Schaik identified a morgue picture of the deceased, John Collins, a Chicago police officer, as a photograph of the white man he saw chasing the Negro in the parking lot and later found shot in the gangway. On cross-examination, Van Schaik stated that when he saw the Negro running he observed that his head was covered, but he couldn't tell whether the Negro was wearing a head covering when he saw him in the gangway. The witness had once identified someone who resembled the offender, but it was not the defendant.
Chicago police officer Napoleon Hunter stated that on December 13, 1967, he received a radio call to the effect that a man had been shot in the gangway at 7808 S. Kenwood. When he arrived, he found the man and helped place him in a squad car to be taken to Jackson Park Hospital. Officer Hunter found a man's green hunting cap in the gangway which, he testified, was subsequently sent to the crime lab. He then went over to the Sears parking lot and after talking with some people there, proceeded to a 1967 Pontiac Catalina in the lot. Upon inspection, it was determined that the left vent window of the Pontiac was damaged and open.
Mrs. Ruth Kent stated for the State that she was present in the Sears parking lot at the time in question, where she heard some shouting and an argument but could not make out the words employed. As she approached closer to the scene, she saw a Negro man with his left arm around a white woman. The Negro had a small gun in his right hand. The witness saw him fire a shot thereafter, whereupon she dropped to the ground. Subsequently, she arose and saw a white man chasing a Negro man. On direct examination, she stated that the running men came within a car length of her as they passed by. She identified the defendant in court as the Negro man in question, and identified the cap found by Officer Hunter as the kind of head covering defendant was wearing in the parking lot when she saw him. On cross-examination it was shown that defendant was the only Negro man at the counsel tables. When she was interviewed at the police station on December 15, 1967, she gave a description of the Negro man as 5 feet 8 inches to 5 feet 10 inches tall, about 35 years of age, of a husky build, and wearing a green colored cap and a three- quarter length army type jacket. She estimated that she was about 40 or 50 feet from the scene of the argument at the time she dropped to the ground after seeing the shot fired. She nonetheless stated that she was able to determine from that distance that the weapon the Negro man possessed seemed small and greyish silver in color. Mrs. Kent did not pay much attention to the type and color of clothes worn by the white man and indeed observed very little about him. On redirect examination she testified that the Negro man and the two white people had stood about a car length away from a light in the parking lot.
Robert Pulizzi testified that he and a friend, Edward Buchsbaum, went to the Sears store on the evening of December 13, 1967. As they walked from their car toward the store entrance, Pulizzi heard the sounds of an argument to his left. He turned and observed a white man leaning over a car with his back to the witness and also saw a Negro man holding a white woman in front of him. At this time Pulizzi was 30 to 40 feet away from the scene. He heard the Negro say "Put that away, I'm a policeman too." As he was walking away, thinking perhaps the situation was a joke, he heard a shot. He turned and saw the white woman pull away from the Negro, and observed the white man fire a shot at the Negro. A chase ensued, with the white man chasing the Negro, and the two exchanging shots. The men ran past the witness at a distance of 7 or 8 feet. Pulizzi identified the defendant as the Negro man he had seen in the parking lot, and described the color of the assailant's gun as dark.
On cross-examination Pulizzi testified that he had told two detectives on the night of the occurrence that the two men were 30 to 45 feet from him as they ran past, but that he had then been wrong. He further admitted that he had estimated the assailant's age at about 40, but at the trial estimated the defendant to be perhaps 35 years old. It was brought out that he had been told by another witness, the decedent's wife, that the defendant was younger than 40.
Edward Buchsbaum testified that he was with Robert Pulizzi in the Sears parking lot at the time in question. As they were walking to the store entrance, he heard someone say "I've got one too. I am a policeman too." He observed a Negro man holding a white woman in front of him on one side of a car. On the other side with his back to the witness was another man. He heard a shot fired by the Negro, who had a gun in his right hand. He noticed that the other man had a gun also. After he heard the first shot, he ducked between two cars, and when he looked up he noticed that the two men had started running in a westerly direction through the parking lot. They ran past Buchsbaum while he was ducked down between two cars. The Negro was wearing an army type field jacket and a hunting cap. He stated that the cap found by Officer Hunter appeared to be the one in question. Buchsbaum identified, on a photograph of the Sears parking lot introduced in evidence, the relative locations of the people involved in the occurrence at various intervals as the events in the parking lot transpired. On January 3, 1968, Buchsbaum selected the defendant as the assailant out of a lineup of five Negro men. He identified the defendant at the trial as the same man he had identified as the assailant in the lineup and also as the man he saw holding the white woman on the night of the offense. Buschsbaum testified at the trial, during cross-examination, that defendant was 8 to 9 feet away from him as the men ran past. On further cross-examination he admitted that he had earlier told the police that he was 10 or 15 yards away from the two men. However, on redirect it was brought out that he was 10 or 15 yards away from the people when he first observed them.
The decedent's widow, Mrs. Barbara Collins, testified for the People that she and the decedent had gone to the Sears store on the evening of December 13, 1967. Upon leaving the store, they walked to their 1967 Pontiac Catalina which was parked in the Sears parking lot at the east end thereof. They observed a man bending over the vent window on the driver's side of their car. Prior to December 13, 1967, the left front vent window of their car had been in perfect operating condition. When this man noticed their approach he started to walk away from the car, whereupon the decedent intercepted him and inquired as to what he had been doing by the Collins car. The decedent had taken out his gun before reaching the man and was holding it behind his back. When the man, who was Negro, noticed the gun, he said "Oh, you have a gun. Well, I have one too," stepped back, reached into his coat, and pulled out a small, black, snubnosed gun. He pointed it at the decedent, who told him to drop the gun, that decedent was a police officer. The Negro man yelled that he too was a police officer and admonished the decedent to drop his gun. The Negro then grabbed Mrs. Collins around the neck with his left arm and held her in front of him. The decedent backed away and repeated his demand that the assailant drop his weapon, whereupon the Negro fired a shot at the decedent. Mrs. Collins screamed, dropped to the ground, and heard the decedent return the Negro's shot. The Negro then bent forward and pointed the gun at Mrs. Collins' head and face. Thereupon, he started to run across the parking lot with the decedent in pursuit. The assailant wore a hunter's hat with a peaked front and a fingertip length army jacket. Mrs. Collins identified the hat found by Officer Hunter in the gangway as the same type of hat worn by the offender. He was of stocky build, but not fat, wore a mustache, and had a chubby face. Mrs. Collins next saw the Negro man in question on January 3, 1968, standing in a lineup at the Area 2 Homicide Headquarters of the Chicago Police Department. He was with three other husky male Negroes, all of approximately the same height, 5 feet nine inches to 5 feet 11 inches. Mrs. Collins identified the defendant at the trial as the man she had seen at the Sears parking lot and the one she picked out of the lineup as the offender.
On cross-examination Mrs. Collins admitted that she originally told the police that the offender was about 6 feet tall and 40 years old, but that she had subsequently revised that estimate. She further stated that the defendant, standing up, did not appear to be 6 feet tall. Prior to her testimony she had talked with the other witnesses in the State's Attorney's office concerning the general impressions of the defendant. She discussed defendant's age with witness Pulizzi.
One of the instructions tendered by the defendant and given by the court instructed the jury that the credibility of a witness could be impeached by showing a prior statement at variance with his testimony and the jury could consider this fact in determining what weight to accord to that testimony.
The defendant's age was stipulated at 25 years. It was further stipulated that if the pathologist who performed the post-mortem on the decedent would testify he would state his opinion that decedent died from a gunshot wound in the brain.
Sgt. Louis Vitullo testified on behalf of the defense that he was a microanalyst at the Chicago Police Department crime lab, that he made a scientific examination of the cap found by Officer Hunter, and found no trace materials present thereon which could be identified as referable to ...