APPEAL from the Circuit Court of Cook County; the Hon. MINOR
K. WILSON and the Hon. LOUIS B. GARIPPO, Judges, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
The three defendants, Herbert Stephens, Douglas Stephens, and Namor Smith, Jr., were convicted of murder by a jury in the Circuit Court of Cook County. Herbert Stephens was sentenced to a term of 100 to 200 years; Namor Smith was sentenced to a term of 50 to 100 years; and Douglas Stephens was sentenced to a term of 20 to 30 years. All defendants appeal.
The issues presented for review are (1) whether the court erred in making Elaine Goins a court's witness; (2) whether the State proved the defendants guilty beyond a reasonable doubt; (3) whether the State proved the legal accountability of Douglas Stephens and Namor Smith for the murder; (4) whether a police statement was properly allowed to impeach the credibility of a court's witness; (5) whether failing to notify the defendants before closing arguments that the State would seek the death penalty denied them a fair trial; (6) whether the prosecutor's closing remarks to the jury were prejudicially improper; and (7) whether the court erred in granting a discretionary extension of the Fourth Term.
In the early morning hours of September 13, 1969, Sterling Burnett, also known as "Little Man," was found shot to death in the alley behind 4617 South Langley Avenue in Chicago. One of the principal witnesses, Elaine Goins, testified on direct examination she saw Douglas Stephens, Namor Smith and several others carry Sterling Burnett through her house at 4611 South Langley in the City of Chicago in response to an order by Herbert Stephens, who followed a few feet behind. She heard Burnett say, "My mouth is bleeding, my mouth is kicked, my mouth is bleeding." After they carried him through the house she heard four shots. Herbert and Douglas Stephens and Namor Smith returned to the porch without Burnett, and Herbert, who had a gun in his hand, told her, "I don't want to hear no more about this." The three then ran off the porch toward 46th Street.
At approximately midnight, Elaine Goins went to 47th Street, where she saw Trammell Hunter, talked to him for five or ten minutes, and then returned to her house. At approximately 1:00 A.M., Trammell Hunter came back to the house with the police, and upon going back in the alley she observed Sterling Burnett lying on his back, dead.
On cross-examination she repudiated her testimony on direct and stated that on the night of September 12, 1968, she had sniffed cocaine and drunk alcohol. She stated she was drowsy and dizzy and testified to things someone had told her rather than what she had seen. Following completion of cross-examination, the State moved that the witness be declared hostile under Illinois Supreme Court Rule 238. The court denied the motion but stated it would allow the prosecutor some leeway on redirect. On redirect she eventually declared the facts she testified to on cross-examination were not true. She said she was afraid if she told a story different from that given to the grand jury she would be charged with perjury. The court granted her immunity for any past perjury, and declared her a court's witness. She then denied any knowledge of the statement she made to the police on the night of the murder, asserted she was high on drugs both on the night of the murder and when she went before the grand jury and denied seeing the deceased between 9:00 P.M. and midnight on the day in question.
She said the police put words in her mouth and threatened to take her three children away if she did not sign the statement. Miss Goins was the mother of three illegitimate children at the time of the murder and gave birth to a fourth child the following June, fathered by Herbert Stephens.
The second principal witness, Calvin White, testified that on the night in question he was at 4611 Langley with his cousin, Greg Armstrong. He stated he heard a conversation between Burnett and the defendants. Herbert Stephens asked him if he were a "Stone" (Blackstone Ranger gang member), and Burnett replied he was not. White then saw Herbert hit him and heard Herbert tell Greg Armstrong, Douglas Stephens, Namor Smith and another to pick him up and carry him out back. As they were going through the house, he saw someone hand Herbert Stephens a weapon. After they placed Burnett on the ground they told Calvin White to go home. He went back into the house and heard four shots. He ran to the fence between 4611 and 4613 Langley and heard another volley of shots, after which he walked to Greg Armstrong's house.
White said he made a statement to the police and testified before the grand jury to these same facts, but gave a contradictory version to defense counsel sometime in 1969, when he was picked up by some boys, taken downtown at gunpoint, and told to deny seeing Herbert Stephens and Namor Smith on the night of the murder, or he would be killed.
Mrs. Mary Armstrong, Calvin White's aunt, testified that Calvin and her son, Gregory Armstrong, were sleeping inside her house when she heard the shots. She stated the boys came into the house at 9:00 P.M. and went to bed at 10 o'clock.
Trammell Hunter testified he left work at midnight and arrived at 47th Street at 12:30 or 12:45. He saw Elaine Goins, "who seemed disturbed." After talking to her he went to get a couple of friends and then went to the alley where he found the body of Sterling Burnett.
At the close of all the evidence, the prosecution tendered an instruction to the judge allowing the jury to return a death verdict. The instruction was tendered to the jury, and a verdict of guilty with the recommendation of death was returned as to Herbert Stephens. The judge disregarded the recommendation and sentenced all three to the penitentiary.
• 1 The defendants first contend the court erred when it made Elaine Goins a court's witness because she was not an eyewitness to any criminal act, citing the cases of People v. Hundley (1954), 4 Ill.2d 244; People v. Banks (1955), 7 Ill.2d 119; People v. Boulahanis (1946), 394 Ill. 255; and People v. McKee (1968), 39 Ill.2d 265. This argument necessitates a narrow construction of the term "eyewitness." Miss Goins saw Sterling Burnett being carried through her house by two of the defendants shortly before she heard shots ring out, after which the three defendants emerged from the house with a weapon and ran off. In the words of the trial court, she was "an obvious eyewitness, certainly to very material facts" with regard to the murder. We think the calling of a court's witness is not to be so strictly limited where there might otherwise be a miscarriage of justice.
Second, the defendants argue they were not proved guilty beyond a reasonable doubt because the evidence against them was improbable and unsatisfactory, and they cite the case of People v. Coulson (1958), 13 Ill.2d 290, in support of their claim. In that case the court reversed an armed robbery conviction where the victim, who was the only witness to the alleged robbery, testified that five men took his wallet at gunpoint, accompanied him to his home on the promise of more money, and permitted him to go inside alone while they waited outside, trusting that he would not call the police. The court found this story to be unworthy of belief.
In the instant case the two principal witnesses gave contradictory accounts of the facts at different times rather than giving facts which were unbelievable. It then became the province of the jury to determine which accounts were true, and this court will not disturb their determination unless ...