APPEAL from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a judgment of the Circuit Court of St. Clair County sentencing him to the Illinois State Penitentiary for a minimum of 199 years and a maximum of 200 years after a jury had found him guilty of the crime of murder.
On November 27, 1968, Bruce Reinheimer was employed at a gasoline station in East St. Louis, Illinois. At approximately 10:00 P.M. that evening, he left the station to service a car and never returned. His body was found later that night in Centreville, Illinois. The cause of death was a gunshot wound to the head. There were no witnesses to the crime.
The defendant, Eutues White, was arrested on the morning of May 24, 1969 and incarcerated in the East St. Louis jail by two officers of the East St. Louis Police Department. He was interrogated for several hours on that day, the morning and afternoon of the following day and in the morning of the next day. In the afternoon of May 26, 1969, the defendant signed a formal statement which contained his written waiver of the rights afforded him under the decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and a confession to the murder of Bruce Reinheimer. Later that day the defendant allegedly reenacted the crime in the presence of police officers and the State's Attorney. Prior to the trial a hearing was held on defendant's motion to suppress the confession. This motion was denied. At the trial the defendant testified that he did not kill Bruce Reinheimer, that he did not remember giving the confession in question, and that he did not remember re-enacting the crime.
The first issue is whether the trial court committed reversible error in allowing the introduction of irrelevant and immaterial testimony which inflamed the passions and prejudices of the jury against the defendant.
The State's first witness was the father of the deceased. The defense objected to his testimony on the grounds that the only relevant testimony that he could offer, that his son was dead, would be outweighed by the prejudicial effect his testimony would have on the jury. The defense also offered to stipulate that the witness's son was dead. The court overruled the objection, provided the State's Attorney could advise the witness not to make any sort of emotional outburst. During the questioning of the deceased's father, the witness in response to a question of whether he had any children, stated that he had one boy left and that one was killed. When asked how old the deceased was when he was killed, he responded "seventeen years, five months and six days". Later, in questioning, the State's Attorney again asked the witness how old the son was at the time of his death. The response was the same, "seventeen years, five months, six days". During closing argument the State's Attorney made a reference to the youth of the deceased. He said, "This is a seventeen year old boy. He was just a part-time man who had just started on his career in life."
The appellant argues that such testimony by the father, especially the detailed account of the age of his deceased son was evidence introduced to inflame the passions of the jury against the defendant. In support of his argument the appellant draws an analogy to a line of cases which hold that testimony concerning the family left behind by the deceased is so inflammatory that its introduction was reversible error. (State v. Bernette, 30 Ill.2d 359.) The rule set down in Bernette was that when testimony elicited in a murder case concerning a family left behind by the deceased was not elicited incidentally, but presented in such a manner as to cause the jury to believe it as material, its admission is highly prejudicial and constitutes reversible error. (See also People v. Washington, 54 Ill. App.2d 467, and People v. Tajra, 58 Ill. App.2d 479.) Although there is an obvious difference between testimony concerning the family left behind by the deceased and testimony which stresses the youth of deceased at the time of his death, certainly a valid analogy can be drawn between the two. For the purpose of both types of testimony when not elicited incidentally is to prejudice the defendant in the eyes and minds of the jury.
However, there is another line of cases since the holding in Bernette which tend to moderate Bernett's impact. For instance, in People v. Jordan, 38 Ill.2d 83, the court held that every mention of the deceased's family does not ipso facto entitle the defendant to a new trial, since in certain instances such a statement can be harmless. (See also People v. Lee, 44 Ill.2d 161 and People v. Tillman, 116 Ill. App.2d 24, for similar holdings.) The court in People v. Vasquez, 118 Ill. App.2d 66, explained that not all references to family require reversal. Rather, the court must determine if it is more than incidental. Likewise, all references to a deceased's youth would not require reversal, but once again the court must determine if it was incidental.
• 1, 2 There is also a line of cases which state that the State is entitled to present "life and death witnesses" to show that deceased's identity and to prove that he has died. Thus, in People v. Speck, 41 Ill.2d 177, the court said:
"A further contention is that the court erred in admitting certain alleged prejudicial evidence. It is argued that the defendant was prejudiced by reason of the fact that close relatives of the slain girls were called by the prosecution as `life and death' witnesses to establish the identity of the girls and to the fact that they were deceased. Counsel for the defendant says that he was willing to stipulate to the identity of the girls and to the fact that they had met their death by criminal means. However, the defendant pleaded not guilty and the State had the right to prove every element of the crime charged and was not obligated to rely on the defendant's stipulation." 41 Ill.2d at 201.
The court went on to hold that there was no undue emphasis in the proof or in argument of the fact that the victims left a family surviving and cases such as People v. Bernette are not applicable. See also People v. Cannon, 49 Ill.2d 162, for a similar holding that life and death witnesses could be put on. Thus, the appellant's argument that he wished to stipulate that the deceased was in fact dead and to his identity was not something which he could assert by right, for, as said in Speck, the State had the right to prove every element in the crime charged and was not obligated to reply on the defendant's stipulation. Also, the State is allowed to put on "life and death" witnesses to establish the identity of the deceased.
• 3 This issue would have to be regarded as very close. However, in our opinion, the testimony was not so material as to have a significant effect upon the conviction of the defendant. Therefore, we do not find reversible error on this issue.
The next issue is whether improper conduct on the part of the State's Attorney deprived the defendant of a fair trial.
• 4 The appellant argues that since the State's Attorney participated in the alleged reenactment of the crime, it was improper for him to examine the witnesses concerning the reenactment. We have found no authority which holds that it is reversible error for a State's Attorney to participate in a trial after he was a participant in the reenactment of the crime for which the defendant is being tried. In the absence of any authority on this question, we cannot say that the State's Attorney committed error in so doing. ...