APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
J. KAPLAN, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
At about 10:45 P.M. on the evening of 27 May, 1969, Charles Strong was found shot to death in alley behind 6243 S. Bishop Street in Chicago. Indictment No. 69-2028 charged Michael Anderson, Allen Spicer, Simpson Bo Clair, Douglas Streeter, Benjamin Smothers, Bruce Upton, and Leon Rushing with his murder. The trial of Smothers was severed from that of the other defendants. At the close of the State's case, Upton and Rushing were discharged upon a motion for directed finding. The defense presented no testimony. Anderson and Spicer were found guilty by a jury and sentenced from 25 to 50 years in the penitentiary. Bo Clair and Streeter were found guilty by the trial judge after having moved to have their cases decided as though their trials had been bench trials. Bo Clair and Streeter received sentences of 14 to 20 years in the penitentiary.
Eloise Young, on behalf of the State, testified that on the evening of 27 May, 1969, she, Charles Strong, Denise Anderson, and others were sitting on her back porch at 6350 S. Bishop. At about 10:30 P.M. Charles Strong fired a gun in his possession once into the ground. Shortly thereafter, two boys came to the porch. The two boys were identified by the witness in court as Allen Spicer and Michael Anderson. Spicer, who was armed, ordered Strong off the porch. When Strong complied, Spicer put his gun to Strong's head, while Anderson, who was also armed, put his gun in Strong's back. The group, consisting of the victim and his two assailants, started to walk north up the alley in the rear of the witness's home. As they were walking, Anderson pushed Strong and fired two or three shots at his feet. Further along the way, three or four other boys came out of a gangway four or five doors to the north up the alley and joined the initial group of three. The witness identified one of those boys as Smothers. The witness did not know what happened after the group got to the north end of the alley.
The testimony of Denise Anderson, who also testified on behalf of the State, was substantially identical to that of Eloise Young. She identified Spicer and Anderson, noted that both were armed, and observed Anderson fire several times at Strong's feet. The witness also identified Smothers as a member of the group of boys who later came out of the gangway. The witness did not know where Strong was taken.
The next witness for the State was Michael McInnis. The witness was seventeen years old at the time of the occurrence and had known Michael Anderson for about eight years. On the evening of 27 May, 1969, at about 10:30 P.M., the witness was at 63rd and Bishop, at which time and place he heard two shots. He ran north on Bishop to the nearest intersecting east-west alley, turned west, and ran about halfway up the alley. The witness stated that, at this point in the alley, he did not see either Anderson or Strong.
Upon hearing this testimony, the State, claiming that it was taken by surprise, moved for leave to treat McInnis as a hostile witness. The motion was granted. The witness than admitted having answered questions during an interview by the police on 29 May, 1969. The interview had been reproduced in the form of a written statement, which statement the witness had read and signed and which he thereupon identified in court.
The assistant State's Attorney questioned McInnis whether he had been asked the following question and whether he had given the following answer:
"Q. Will you tell me where you were and what you were doing on the 27th of May at about 10:45 P.M.
A. I was on the corner of 63rd and Bishop and I heard two shots and I started to run towards my house. I was running north on Bishop and when I got to the alley on the west side of the street, I saw Shine (Anderson) standing over Chuck. I saw Shine had a gun in his hand and Chuckie say `Don't kill me' and Shine pointed the gun at him and fired several times. After Shine fired, Chuckie didn't move again. I then ran away and went home."
The witness denied that he had given that answer to the question. The assistant State's Attorney then asked the court whether he could ask one or two more questions. The attorney for Anderson and the attorney for Bo Clair and Streeter both stated that they had no objection. The prosecutor then proceeded by way of question and answer through McInnis's entire statement of the 29th of May.
The fact that McInnis had given the statement on the 29th of May, and that he had read, verified, and signed the statement was corroborated by officer Raymond Luth, the officer to whom the statement had been given.
Benjamin Smothers, testifying on behalf of the State, stated that he was currently under indictment for the murder of Charles Strong, but had agreed to testify on advice of counsel because the State's Attorney had agreed to give him consideration in his case for testifying in this case. Smothers testified that he was in the company of Anderson, Spicer, Bo Clair, and Streeter at 63rd and Bishop at about 10:00 P.M. on the night in question. Someone stated that the "dude" that was doing the shooting was at 64th and Bishop, whereupon Spicer pulled a gun and crossed 63rd Street to go south on Bishop. Smothers followed him at a distance of about 15 feet as they proceeded south on Bishop.
Smothers testified that he did not follow Spicer all the way to 64th and Bishop, but instead turned into a gangway leading to the alley running north-south behind the west side of Bishop. When he reached the alley, he walked south in the alley to where Spicer then was. Spicer, who had his gun at Strong's head, was pulling Strong off the porch. The witness did not see Michael Anderson at the porth. The witness could not, however, see the entire backyard or the entire porch from his position.
Smothers followed Spicer and Strong at a distance of about 10 or 15 feet as they proceeded north up the alley. Smothers was not armed and said nothing. Nobody fired any shots at this time. They walked north to the intersecting east-west alley behind the south side of 63rd Street; and then east to Bishop, north across 63rd Street, and into the east-west alley in back of the garage behind Gene's Corner, a tavern on the northwest corner of 63rd and Bishop. Spicer then told Streeter that he was giving him the opportunity to kill Strong. Bo Clair, Spicer, Streeter, and Anderson (as well as some other boys Smothers could not identify) were present when ...