APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 14, 1972.
In a bench trial the defendant, Allen Clark, was convicted of murder and sentenced to 25 to 40 years. *fn1
On appeal the defendant contends that (1) three in-court identifications should have been suppressed as the fruit of an illegal arrest; (2) these in-court identifications should have been suppressed because they were tainted by pre-trial identification procedures which were unnecessarily suggestive and conducive to irreparable mistaken identification; (3) it was error to permit a State witness to testify as to a statement made by the defendant in the witness' presence because the State failed to give adequate notice of the statement as required by Section 114-10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 114-10); and (4) the evidence failed to establish guilt beyond a reasonable doubt.
The murder took place on the East 300 block of 51st Street, between Calumet Avenue and King Drive. On November 2, 1969, at about 3:50 A.M., the victim, James Allen Brown, was walking to his car. It was parked on the south side of the street, facing east. As he neared his car and entered it, a man with a gun approached him from behind. The man with the gun was later identified as the defendant. The gunman stood in the street near the driver's window. He was accompanied by one or two men who remained on the other side of the car, and slightly to the rear. After the victim entered his car, the gunman put his gun in the driver's window and said: "Don't move." At this moment the victim's car quickly pulled away. The gunman fired a shot, but the car continued east on 51st Street. The gunman fired again. This time the victim's car swerved across the westbound lane, jumped the curb and smashed into the wall of a building on the north side of 51st Street, almost at the intersection of 51st Street and King Drive. In all, the car had travelled about 150 feet. After the car came to rest, the assailants ran down the street, searched the interior of the car and removed the victim's wallet. They then retreated in the direction from which they had come along 51st Street. The cause of death was a bullet wound in the back of the head.
A hearing on a motion to suppress identification testimony was heard concurrently with the trial. Three occurrence witnesses made in-court identifications of the defendant. The first, Bernard Payne, testified that on November 2, 1969, at about 3:45 A.M. he and a friend were walking east on the north side of 51st Street. As he was walking, he heard footsteps behind him. As he turned around, the defendant, holding a gun, bumped into him and then stepped into 51st Street, headed for the victim. Payne testified that he was only able to see the defendant for "a second" when they bumped into each other. Payne remained on the sidewalk and watched the defendant follow the victim to his car. He saw the defendant put his gun in the victim's window after the victim had entered his car. Payne watched the defendant as he fired at the victim's fleeing car. After the victim's car crashed, the defendant turned and faced Payne, still holding the gun. They stared at one another for "about fifteen seconds." At this time they were separated by one-half the width of 51st Street. The street lights were on. Payne turned around and entered a nearby restaurant, and the defendant turned and headed towards the victim's smashed car. A moment later Payne stepped out of the restaurant and saw two men kneeling by the victim's auto, looking at what appeared to be a wallet.
About two and one-half weeks later Payne identified the defendant from a group of about 17 photographs. (All of the photographs were of male Negroes; the defendant is a Negro.)
On cross-examination Payne testified that prior to the shooting he and his friend had been at a tavern and then a restaurant. He stated that he did not drink because he was on medication but that his friend had been drinking. He further testified that he had met his friend in a tavern that night. He then changed his testimony and stated that his friend had picked him up at work that night at midnight and that then they had proceeded to the tavern. On redirect he stated that one or two of the photographs he was shown may have been of a white male, and possibly a female.
Walter Hoskins, who made the second in-court identification of the defendant, testified that as he was sitting in a restaurant on 51st Street that night, he heard three shots. He looked out the window and saw three men running down 51st Street towards King Drive. The men ran down the middle of the street and crossed over to the victim's car which had come to rest on the north side of the street. When the men reached the car, they "squatted down," but he could not tell what they were doing. He saw the men leave the car and walk past him as he stood in the window.
The next day, Monday morning, Hoskins encountered two of the three men on 51st Street; defendant was one of the two men. He (the defendant) turned to his companion and stated: "That's the same fellow [referring to Hoskins] that was standing in that window that night." After his encounter with the defendant on the day after the shooting, Hoskins went to the police. He was taken to a police artist. He gave the artist a description of the defendant. He was shown the sketch after the police artist completed it. He identified the sketch in court.
Hoskins testified that about a week later Officer Ferguson drove him to a police station. While he was waiting in the police station, he saw the defendant walk past a doorway. He testified that Officer Ferguson was walking with the defendant but that no one had pointed out the defendant for him.
On cross-examination Hoskins testified that when Officer Ferguson drove him to the police station, Ferguson asked him if he (Hoskins) could identify the man he had seen. Hoskins answered that he could. Ferguson did not tell Hoskins that the defendant would be at the police station. Upon further cross-examination Hoskins testified that during World War II, while in the Armed Forces, he wore glasses for "weak eyes." He had stopped wearing the glasses, however, because they broke, and he never obtained replacements. His Illinois driver's license did not require him to wear glasses.
Hoskins also testified that prior to testifying, while waiting in the witness room, he had looked at two photographs that had been lying on a table in the room. He testified that one of the photographs was of the defendant.
The third occurrence witness who made an in-court identification of the defendant was Jerry Wilson. Wilson had disembarked from a C.T.A. bus just after the victim's car crashed. He saw the defendant going through the interior of the victim's car. Two other men were standing next to the car. The witness was on the opposite side of 51st Street as he passed the victim's car and observed the defendant. The witness kept walking until he reached the elevated station. He testified that he also saw the defendant about 45 minutes later. The witness had known the defendant for about a year and has seen the defendant on several occasions. The witness stated ...