APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County defendant was convicted of murder and upon the jury's recommendation the death penalty was imposed. (Ill. Rev. Stat. 1969, ch. 38, par. 1-7(c)(1).) He appeals directly to this court (Ill. Rev. Stat. 1971, ch. 110A, par. 603) raising specific issues of error hereinafter enumerated and concluding that the proceedings, when taken in their entirety, were conducted in such manner as to deprive him of a fair trial. He therefore seeks reversal of his conviction and remandment of the cause for a new trial.
On the evening of December 25, 1968, Officer George Sperekas arrived at 4160 Drexel Boulevard in Chicago in response to a "sick person call." He was informed by Donald Griffin that there was a body in Apartment 307. The policeman entered and discovered the body of the victim, James McCain, on the bedroom floor. Several .45 caliber "pellets" were recovered at the scene.
Medical testimony indicated that deceased had been shot five times with death resulting from two bullet wounds to the brain. Powder residue found on deceased's jacket indicated that several shots had been fired at close range.
Defendant's cousin, Frankie Ingram, testified that on December 11, 1968, she overheard a conversation between her mother and defendant wherein he stated, "I am going to get McCain." She later observed him in the building where deceased was shot and he had a gun. However, her mother disputed the fact that this witness was present during the only conversation she had with defendant in December, 1968.
William Jones testified that he had met defendant on the morning of the murder. During their conversation defendant displayed a gun and stated he was going to kill McCain.
Jones, Derrick Griffin, Donald Griffin and Eric Gardner were called as occurrence witnesses to the events which transpired in the apartment prior to the arrival of Officer Sperekas. They, as well as several others who were present at the time deceased was shot, were members of a street gang called the Blackstone Rangers. During a discussion McCain was accused of changing his allegiance to a rival gang and attempting to "take over the neighborhood." At this point defendant produced a gun and ordered McCain, who was unarmed, to stand near the wall and then to kneel on the floor. He complied and then began to beg another gang member to intercede in his behalf and the latter told defendant not to shoot. However, defendant fired several shots at McCain who collapsed on the floor. He then fired a final shot which struck deceased in the head. All fled the apartment, but Donald Griffin remained in the building until the police arrived.
The defense produced five alibi witnesses who testified that defendant was attending a party at the time of the murder. However, a review of the record demonstrates that various conflicting statements were elicited on cross-examination which cast substantial doubt upon the credibility of their testimony.
Defendant first assigns error to the trial court's limitation of defense counsel's cross-examination of William Jones. He now contends that his trial counsel was not permitted to inquire into the arrest of this witness (People v. Barr, 51 Ill.2d 50) or as to his residence (Alford v. United States, 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218) in order to establish motive or bias which may have resulted from promises or fear arising from his detention.
We do not agree. After direct examination, the State, outside the presence of the jury and after defense counsel's inquiry, told the court that this witness was under arrest for possession of marijuana. The trial court then informed defense counsel that he could inquire as to any pending charge and any agreement having been made with the witness for his testimony but could not inquire concerning his arrest. Thereafter, in the presence of the jury, defense counsel asked whether any promises had been made with regard to a pending charge against him and he said "No."
A witness may be cross-examined concerning those circumstances relating to a pending charge which bear upon his credibility. (People v. George, 49 Ill.2d 372, 380; People v. Mason, 28 Ill.2d 396, 400-401.) However, the latitude permitted on cross-examination is within the discretion of the trial court and a reviewing court will not interfere unless this discretion is clearly abused. People v. Barr, 51 Ill.2d 50, 51; People v. George, 49 Ill.2d 372, 381; People v. Halteman, 10 Ill.2d 74, 86.
In Barr, during cross-examination, defendant was denied the right to inquire if any charges, which may have been related to his alleged criminal acts, were pending against the witness. In the present case it was established that an unrelated charge against William Jones was pending. Moreover, defense counsel never asked what the substance of that charge was and defendant cannot now complain that the nature of the charge (possession of marijuana) was kept from the jury's knowledge. Hence, while the essence of the charge was not given to the jury, they were informed that a charge was currently pending against this witness and he denied any promises had been made in regard thereto.
Nor do we find his contention persuasive that he was not permitted to establish where William Jones was living, for the record refutes this argument. On cross-examination the witness reiterated the fact that he was presently staying in the prosecution's witness quarters. Defense counsel then asked the witness where he lived prior to his present stay. The State's objection to this question was sustained. As stated in Alford, "Even if the witness were charged with some other offense by the prosecuting authorities, petitioner was entitled to show by cross-examination that his testimony was affected by fear or favor growing out of his detention." (282 U.S. at 693.) The court there reversed defendant's conviction after concluding that the trial court had abused its discretion in curtailing cross-examination at the threshold of inquiry. In the present case the jury was presented with evidence of where the witness was presently living and, as heretofore discussed, the fact that no promises relating to a pending charge were ...