APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, the defendants were found guilty of the murder of Gregory Greene and the attempt murder and aggravated battery of Edward Payne. They were sentenced as follows: on the murder charge, Ricardo Griffin 15 to 22 years, Richard McKinney 14 to 17 years and Montell Jackson 14 to 20 years; on the attempt murder charge, Ricardo Griffin 8 to 15 years, Richard McKinney 5 to 10 years and Montell Jackson 7 to 14 years; on the aggravated battery charge, Ricardo Griffin 7 to 10 years, Richard McKinney 2 to 7 years and Montell Jackson 3 to 10 years. All sentences to run concurrently. A fourth defendant, Walter Jackson, was discharged on a finding of not guilty at the close of State's evidence. On appeal each of the defendants contends:
1. He was not proven guilty beyond a reasonable doubt.
2. His conviction and sentence for aggravated battery was improper.
In addition, the defendant Montell Jackson contends he was denied a fair trial because:
1. The trial court improperly denied suppression of identification testimony, in that:
(a) legal counsel was not present at the pre-trial identifications,
(b) the identification testimony of witness Clyde Watson resulted from a suggestive identification procedure.
2. The court questioned witnesses and brought out matters prejudicial to him.
It appears that about 10:00 P.M. on the evening of May 28, 1969, about 15 assailants jumped out from behind posts under an `El' structure and started shooting at Gregory Greene, Edward Payne, Clyde Watson and a person named Orrie. Greene was killed and Payne was wounded. Payne testified on trial that he had been drinking and didn't know what happened. The person named Orrie did not testify.
Watson stated that he saw Montell Jackson (hereinafter called Montell) fire a pistol at him and his friends and when Greene fell, he saw Ricardo Griffin shoot him while he was on the ground. He also observed Richard McKinney holding a shotgun and standing near Montell but he did not see McKinney fire the gun.
When the shooting began Watson took cover about 65 feet away behind a post about two feet wide and viewed the attack with one eye as he looked around the post. He could see the assailants, particularly the three defendants, who were under a light and about three or four feet in front of the others. The entire episode lasted about three minutes during which time he was viewing all of the assailants. The first assailant he saw (later identified as Montell Jackson) had shiny hair and he observed his face under the light for "about one minute. Long enough for me to remember."
He did not know any of the assailants but stated he later gave the police a description of them and told the police he had seen their faces and would be able to identify some of them if he saw them again. About 20 minutes after the occurrence he saw three young men in a police squadrol and identified two of them as assailants but could not identify the third. He did not know their names but later learned them to be Richard McKinney and Walter Jackson. During trial he identified Montell, Griffin and McKinney as assailants but he was not sure that Walter Jackson was among them and Walter Jackson was thereupon discharged at the close of the State's evidence.
Ardell Chambers, a witness for the State, identified Griffin and Montell in court and testified that he, Benny Stewart and Clyde Jones were in an alley about 1 1/2 blocks from the place of the shooting when Griffin and Montell ran into the alley towards them. Montell told them "get out of the alley because somebody just got shot." He then said "somebody just got blown away" and at the same time Griffin was moving his right index finger forward and back. Montell said that Griffin had fired the shots and Griffin said nothing. Chambers had known both for a number of years. He and his twin brother were taken into custody because of the shooting and he was also charged with a robbery. He was held in the Audy Home where, after about one month, he told the police what had occurred in the alley. He had been visited at the Audy Home by the police for about 1/2 hour every day for one week before his statement was given and he had been told he might get 20-25 years for the murder of Greene. He was released about one week after ...