APPEAL from the Circuit Court of St. Clair County; the Hon.
JAMES W. GRAY, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a conviction of murder, armed robbery, and unlawful restraint, in the Circuit Court of St. Clair County. Although the jury recommended the death penalty, the court declined to impose it and sentenced defendant Jennings and co-defendant Hyde to terms of 99-100 years. Co-defendant Hyde's conviction was affirmed in People v. Hyde, 1 Ill. App.3d 831, 275 N.E.2d 239.
An extended discussion of the evidence appears in the Hyde opinion and will not be repeated herein. However, where facts are essential to the treatment of issues raised on this appeal, they will be summarized.
Defendant argues initially that the evidence was insufficient to convict him because of the confusion, uncertainty, and contradiction of the identification witnesses. He also argues that the testimony of his alibi witnesses was more believable than that of the State's witnesses.
All of the witnesses who identified the accused were in a good position to observe and did observe defendant under conditions that lend veracity to their observations. They identified defendant in a line-up and at trial. They asserted their positiveness and remained unshaken on cross-examination.
The defendant testified in his own behalf, denied the robbery and shooting, offered an alibi and produced witnesses in its corroboration. Isaiah Marchbanks, a long-time friend of defendant, testified he saw defendant at 1:30 A.M. on the morning of the alleged offense outside a tavern and drove him the three or four blocks to defendant's home. Defendant's father and mother testified that they saw their son come home at about 1:30 A.M., that he went to bed, that he did not get up until the next morning. Defendant's brother testified that the defendant owned a black Chevrolet convertible and that he himself owned a red Chevrolet convertible, which was inoperable on the morning of the alleged offense. James Stringfellow, another acquaintance of defendant, testified defendant owned a black convertible; but, on cross-examination, he admitted that he had tried to fix the defendant's brother's red Chevrolet on the day before the occurrence. Clifton Turner, a barber and also a long acquaintance of defendant, testified that, on the evening before the occurrence, he had given defendant a trim.
Defendant testified that he had spent the day before the alleged occurrence in a tavern and that, other than the period of time during which he received a haircut, he remained at the tavern. At about 1:30 A.M., he received a ride home from Marchbanks and remained at home until the following day. He denied having seen Hyde on that day and denied any participation in the offense.
• 1-4 Our review of the testimony leads us to the conclusion that the guilt of the defendant was firmly grounded on sufficient evidence and that defendant's guilt was proven beyond a reasonable doubt. The evidence against defendant is even stronger than that against co-defendant Hyde. The identification evidence was positive and, even though not entirely consistent, it was convincing. The testimony of defendant's barber was significantly impeached by the testimony of Detective Alonzo Perrin with regard to a prior inconsistent statement. Under these circumstances, that the jury chose to disbelieve defendant and his alibi witnesses is unavailing to defendant as error since it is within the province of the jury to choose whom to believe or disbelieve.
• 5 Defendant next argues that prejudicial error occurred when the prosecutor elicited evidence that the deceased victim was married and supporting a family and compounded the error by introducing photographs of the deceased showing some of his children on his lap and by commenting on deceased's family in final argument. The same argument was made in the Hyde case and we held that, since there was such strong evidence of guilt, the conviction did not result from passion or prejudice. This position is even more tenable with regard to defendant Jennings.
• 6 The defendant next argues that reversible error was committed when the State was permitted to impeach defendant's testimony by bringing to the jury's attention evidence of defendant's past convictions. This argument was also made and considered in the Hyde opinion. We reaffirm what we said therein. People v. Hyde, 1 Ill. App.3d 831, 275 N.E.2d 239, at 247-248.
• 7 The defendant next argues that prejudicial error occurred when the State knowingly suppressed a police report containing evidence favorable to him. This issue was also discussed at length in the Hyde opinion and dismissed. However, one aspect of the argument is new. The report contains a statement of Benny Walker, a witness whom the defendant notes had stated he "could not identify the gunmen of the armed robbery". Defendant argues his testimony could have given added weight to the defense. However, as we found significant in our discussion in the Hyde opinion, in response to a motion for a list of witnesses, the State included Walker's name as a witness.
• 8 Defendant next argues that the court erred in failing to instruct the jury as to the essential elements of the offense of murder. This issue was also considered in the Hyde opinion and we found that no prejudicial error had occurred. People v. Hyde, 1 Ill. App.3d 831, 275 N.E.2d 239 at 247.
• 9 The defendant next argues that the State failed to prove the corpus delicti for the offense of murder in that there was no evidence to show that the person who was pronounced dead at Firman Desloge Hospital was Paul Walker. However, there was circumstantial evidence to support the jury's verdict. A number of witnesses testified that they saw the decedent after the defendants had left the area where the offense had taken place, and they described the decedent and the nature of his wound. The decedent's employer and wife testified that the decedent departed on a trip to the National City stockyards on the afternoon before the alleged incident occurred, and his wife testified she next saw him at Firmin Desloge Hospital and that he was dead. A resident at the hospital testified that a patient was referred from another hospital at about 6:30 A.M. on July 23, with what appeared to be a gunshot wound. He testified about the patient's physical appearance and the condition of the wound. Finally, he testified that the patient was pronounced dead at 11:35 A.M. and that an autopsy revealed the cause of death to be gunshot wound of the head with laceration of the brain and cerebral edema. When shown photographs of the decedent, the resident was able to testify that the photographs represented a fair likeness of the man he had treated. He also testified that the patient was the only patient he treated with the type of wound he had described. Under the circumstances, there was sufficient evidence from which a jury could find that the individual who was shot at the scene of the occurrence was Paul Walker.
• 10 The defendant next argues that his trial attorney was incompetent and that he did not adequately represent the defendant. He points to his counsel's reminding the State's Attorney to introduce certain photographs, to the admission of which his counsel then objected; his failure to submit an instruction on the elements of murder; his failure to object to prejudicial remarks during the closing argument; and his failure to object to immaterial evidence. As we noted in People v. Hyde, 1 Ill. App.3d 381, 275 N.E.2d 239, at 249, "most of the alleged errors were not errors and as to the remainder it cannot be said that there was any failure or shortcoming upon the part of the ...