APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant, *fn1 Robert Stock, was tried before a jury for the offenses of armed robbery and murder. The jury returned a verdict of guilty as to the offense of murder, and judgment was entered on it. Defendant received a sentence of not less than 125 nor more than 150 years. He thereupon filed a notice of appeal from his conviction. While his direct appeal was pending, he filed a petition seeking post-conviction relief. This court stayed the cause of the direct appeal until the post-conviction proceeding could be concluded. At the post-conviction hearing defendant's plea for relief was denied. Appeal was taken from this order of the circuit court. Both defendant's direct appeal and his appeal from the order denying post-conviction relief have been consolidated for review.
We will first consider defendant's direct appeal. He here asserts that: (1) the evidence adduced at trial failed to prove him guilty beyond a reasonable doubt in that it consisted only of the testimony of a witness which was conclusively impeached and eyewitness identifications that were fatally tainted by improper police procedures; (2) defendant's alibi defense should not have been disregarded because the State's evidence failed to produce a reasonable moral certainty that defendant committed the offense; (3) defendant was deprived of a fair trial by the State's improper cross-examination of his witnesses; and (4) defendant was denied his right to instruct the jury on his theory of defense.
On the evening of March 21, 1968, Paul Truschke was shot and killed during a robbery. His body was found in a cooler at the rear of the A & P supermarket he managed at 3429 West Diversey in Chicago. At trial the State introduced evidence that, on the night in question, as was his custom, Truschke, after closing the store, stopped at a tavern located on the same block. That evening he left the tavern at 7:30 P.M. after having had a couple of drinks. When Truschke was late in returning home, his wife and son drove to the store to ascertain his whereabouts. At approximately 1:30 A.M. on March 22 they discovered that one of the rear doors was unlocked. Truschke's son entered the store, searched it and discovered his father's body.
The State's witness, Lorraine Neurater of 3424 West Parker, testified that at about 7:45 P.M. on March 21, accompanied by her son, Ronald, she entered her garage which is located behind her house. The garage and the A & P border on the same alley, the store being approximately 75 feet east of the garage. Ronald removed their car from the garage and with her beside him in the front seat they proceeded in a westerly direction down the alley. In so doing they passed the rear door of the A & P store. She there saw a man emerge, carrying a cloth sack which looked like a money bag. The man turned, closed the door and walked west down the alley. He was a white man, between five feet four and five feet six inches in height, 145 pounds in weight, with straight black hair. He was wearing a dark three-quarter length car coat, dark trousers and a white shirt. At the end of the alley Ronald turned to the south, the man proceeded north. While making the turn, their car passed within a foot of the man. He looked into the car. The alley was well illuminated with three mercury vapor lamps. The man was wearing neither a hat nor glasses. The man was in the alley for about 30 seconds. She viewed his face for a "split second" both when the man emerged from the A & P and when her car turned out of the alley. The following day, March 22, she and her son were taken by the police to the Belmont Hospital. There she was led to a room and shown a man lying on a bed. She recognized him as the man whom she had seen the previous evening in the alley. On March 23 she went to the Shakespeare Avenue Police Station in order to view a lineup. The "line" was comprised of eight men. Each man was asked to state his name and address. All of them complied with these instructions. Prior to the lineup she had learned defendant's name. She identified defendant at the lineup as the man she had seen at the hospital and in the alley behind the A & P.
Ronald Neurater testified that when he pulled out of the garage he turned his headlights on high beam in order to see whether there was any glass in the alley. He drove very slowly so as to avoid broken glass. He saw a man emerge from one of the rear doors of the A & P. His mother commented to him about the presence of the man who appeared to be carrying a money bag. As he was turning at the end of the alley his mother cautioned him to exercise care due to the proximity of this man walking down the alley. At this time he saw the man looking into the car. The man was wearing a dark jacket, dark pants and a light shirt. He was about five feet six inches in height, 145 pounds in weight and was slightly built. He observed the man's face for about four or five seconds. The following day he informed the police he had seen someone in the alley behind the A & P but "wasn't exactly sure who it was." He was taken to the Belmont Hospital where he was shown a man. He thought it was the man he had seen the night before but he wasn't positive. On March 23 he was taken to the Shakespeare Avenue Station to view a police lineup. The men in the lineup were asked to identify themselves. He had previously learned defendant's name. He pointed out defendant from the men in the lineup as the individual he had seen in the alley.
Joseph Fillippi testified for the State. On Tuesday, March 19, 1968, two days before the crime in question, he was at a filling station in the area when he was approached by the defendant. One James O'Donnell was also present. The time was between 6:30 and 7:00 P.M. Defendant asked whether he was interested in going on a "score" (i.e. an armed robbery) with him. Defendant said it would take place at an A & P on Diversey the following Thursday evening. It was defendant's plan to approach a "guy" as he was closing the store, walk him back into it and have him open the safe. If they were late, defendant said, they would wait for the "guy" at a tavern which it was his habit to frequent. They would then take him back to the store. Defendant said that it might be necessary to "off" (i.e. kill) the man since it was possible he could identify him. Fillippi discussed the proposition with O'Donnell. He then told defendant that he would not participate since there was the possibility they would have to kill someone. Fillippi was an inmate of Cook County Jail where he was awaiting trial on five separate armed robbery indictments. He expected a recommendation of leniency from the State's Attorney's office in return for his "truthful testimony" against defendant.
Detective John Motzny of the Chicago Police Department testified that he interviewed defendant in the hospital on March 22 concerning his activities of the night before. Defendant told him that he had eaten dinner at the Terminal Restaurant and "that was the last he rember [sic] of anything until he woke up in the hospital." On cross-examination it was brought out that Motzny had accompanied the Neuraters to the lineup conducted at the Shakespeare Avenue Station. Although the Neuraters identified defendant, he was not charged with murder at that time. It was not until March 25, two days after the lineup, that a complaint charging defendant with murder was executed.
Other prosecution testimony indicated that the distance between defendant's residence and that of the deceased was about two and one-half blocks.
Joseph Munoz testified on defendant's behalf. At 7:30 P.M. on the evening of March 21 defendant accompanied him to the corner of Wilson Avenue and Clark Street in Chicago. Defendant waited at a grocery store while the witness purchased a quantity of heroin. He then picked up defendant and they drove to his home, arriving there between 8:30 and 8:45 P.M. At Munoz's home defendant injected himself with some of the heroin and almost immediately passed out. Assisted by Vincent Tamburi, he attempted to revive defendant but was unsuccessful. At approximately 11:00 P.M. he and Tamburi took defendant to the Belmont Hospital.
When called as a defense witness, Vincent Tamburi corroborated a substantial portion of Munoz' testimony.
Both Munoz and Tamburi were extensively cross-examined about their narcotics addiction. Testimony was heard as to the length of time they had been addicted, their source of supply for illicit drugs and the daily cost of drugs required to sustain their dependence.
Defendant also introduced evidence attempting to discredit the testimony of Fillippi. Fillippi's former cellmate at the Cook County Jail, Richard Johnson, testified that Fillippi had told him he was going to devise a story to implicate defendant in the crime. Johnson said Fillippi gave three reasons for this court of action: (1) to gain revenge against defendant's brother who had informed on him, (2) to obtain leniency from the State when he pleaded guilty to the charges pending against him, and (3) to get part of the $5,000 reward money being offered by the A & P Company. Defendant's employment records were produced indicating that he had been working until 6:30 P.M. on March 19. His sister-in-law, who was employed by the same firm as defendant, testified that after work he drove her to her mother's house where he spent the remainder of the evening.
Defendant, testifying on his own behalf, denied any implication in this offense and denied, as well, having seen Fillippi on March 19. Defendant claimed that he fabricated the story he told Detective Motzny concerning his activities on the evening of the crime in order to shield Munoz from possible difficulties with the police.
A prosecution rebuttal witness, Detective Ralph Storck of the Chicago Police Department, testified that he had accompanied Lorraine and Ronald Neurater to the Belmont Hospital on March 22. On cross-examination he admitted having told them that they were being taken to see a man who the police thought might be the person they saw the night before.
On this evidence the jury returned a verdict of guilty on the indictment charging defendant with ...