APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The defendant was indicted for the murder of Alice Thomas, was found guilty by a jury which recommended the death penalty and was sentenced to a term of 100 to 200 years in the State Penitentiary. He contends (1) that he was denied a fair trial and due process of law by the reception of inflammatory and irrelevant evidence and by improper and prejudicial arguments of the prosecutor; (2) that Lee Burnett, the victim's son and the only eye witness, lacked sufficient intelligence and maturity to testify competently and the court erred in allowing him to testify; and (3) that the sentence of 100 to 200 years is excessive and should be reduced.
We conclude that none of these contentions is well founded and affirm the judgment.
Prior to trial, defense counsel moved to exclude the testimony of Lee Burnett, the 8-year-old paraplegic son of the victim, on the ground that he was incompetent to testify because he lacked intelligence and maturity. At the pretrial hearing, Lee testified accurately as to his age and birthday but not as to colors or time he could not tell time and could not distinguish between brown and black. He testified that he had attended school but he could not recall for how long or where. He demonstrated an ability to count accurately. He remembered his grandmother's first name but not her last name. When asked as to whether he could distinguish between truth and a lie, he responded that if you do not tell the truth you get whipped and both the judge and God would be mad at you. He remembered that when he took the stand he swore to tell the truth and nothing but the truth. On redirect by the People with respect to whether he had been coached, he stated:
"I knew the answer to the question when you asked me if I knew Michel. I told you who he was. And when you asked me to tell you what Michel did that day, I told you. You didn't tell me what to say."
Lee's former school teacher testified that he was a slow learner, corroborated by a tested I.Q. of 79, and that he was a spastic child due to cerebral palsy. She stated that he was able to differentiate between people and that his reports about other children's activities to her had been accurate. On the basis of all this testimony, the court denied the defendant's motion.
At the trial, Lee Burnett testified that on the morning of March 14, 1970, he awoke and, while crawling and dragging himself toward the bathroom, saw the defendant, whom he had known for some time as a boyfriend of his regular baby-sitter, stabbing his mother, who was lying on the floor of the bathroom, with a butcher knife several times in the face. He further testified that he tried to grab the defendant's foot but the defendant kicked him in the stomach and ran out of the house.
Ms. Carrie Griffin, the deceased's next door neighbor in the apartment, testified that at about 7:00 A.M. she heard the deceased's doorbell ring and that she heard her admit the caller to the building. About 15 minutes later, she and another tenant, Ms. Elizabeth Cook, approached the deceased's apartment where they found blood on the stairs and walls outside it and Lee Burnett sitting near the rear door of his mother's apartment with bloodstains all over his underwear. Ms. Cook ran into Ms. Griffin's apartment and called the police.
The police testified that upon arriving they found Ms. Thomas' body partially clothed and lying in a pool of blood. Near her body they found two butcher knives. She had been stabbed more than 30 times in her upper torso and face. They also found blood all over the inside doorknob of the rear door of the apartment and a trail of blood outside the apartment leading to the porch of a nearby house. The Logans who lived there testified that the defendant, whom they had known for several years and who was a personal friend of James Logan, had come to their porch sometime between 7:00 A.M. and 8:00 A.M. that morning with badly bleeding hands wrapped in a coat dripping with blood. James Logan testified that he had previously seen the defendant on the street outside Ms. Thomas' apartment around 7:00 A.M. and that at that time his hands appeared to be uncut. The Logans testified that the defendant told them he had just been cut by some boys who had jumped him. A friend of the Logans took him to the hospital. On the basis of this information, police proceeded to the hospital where they placed him under arrest. They returned him to the deceased's apartment where Lee Burnett identified him as the man he had seen stabbing his mother.
Evidence obtained by the police crime lab showed that there were two types of blood in the apartment: type B belonging to the victim was all over the apartment (principally the kitchen and bathroom) and on the defendant's clothing; type A which matched the defendant's blood was fund inside the apartment on the doorknob and on the ground outside the apartment leading to the Logan's porch.
The defendant took the stand and denied that he stabbed Alice Thomas. He testified that he had gone to a party the night before and that afterwards he went with a friend, Ricky Perkins, to Perkins' house located across the street from Ms. Thomas' apartment and that he and Ricky sat around talking and listening to records until early in the morning. He left at that time so that Ricky's mother would not awaken and find that he had been there that late. Perkins corroborated this testimony but indicated that he thought Parker had left around 6:15 or 6:20 A.M. Instead of going home to his aunt and uncle's with whom he was then having difficulties, Parker testified that he went over to Alice Thomas', whom he claimed he knew quite well and considered a good friend. He admitted that on the way over he saw James Logan. He rang the doorbell and Alice Thomas let him in. He testified that he asked Alice to allow him to grab some sleep in the back room and that she awaken him at 6:30 or 7:00 A.M. in time for him to go to work. He claimed that he fell asleep and was later awakened by her struggles with an unknown intruder. The intruder then attacked him inflicting the wounds on his hands and after a 15 minute struggle the intruder fled. Parker testified that he left the deceased's apartment in a panic, tripping over Lee Burnett in so doing, and fled over to the Logan's seeking help. When asked why he did not tell them what had allegedly happened instead of the story about being cut up by some boys who jumped him, he responded that he was afraid he would be charged with murder. He further claimed that Lee Burnett was mistaken about identifying him as the attacker.
Let us first consider the defendant's contention that Lee Burnett was incompetent due to lack of intelligence and maturity and that the court erred in finding him competent and in permitting him to testify at the trial.
The defendant correctly states the criteria for determining the competency of a child witness when he says:
"Every person over the age of 14 years is presumed competent. (Shannon v. Swanson, [1904, 208 Ill. 52, 54-55].) When a child under that age is called as a witness, it is the duty of the trial judge to conduct a preliminary inquiry to determine whether the child is competent to testify. (People v. Crews, 38 Ill.2d 331, 338.) As stated by the court in People v. Sims, 113 Ill. App.2d 58, 251 N.E.2d 795, 797: `If (a child's) testimony is to be permitted, the court's inquiry must, with reason, satisfy the judge that the witness is sufficiently mature (1) to receive correct impressions by his senses, (2) to recollect these impressions, (3) to understand questions and narrate answers intelligently, and (4) to appreciate the moral duty to tell the truth (and comprehend the meaning of the oath). [Citations omitted.]'"
• 1 Although the defendant has pointed out some minor inaccuracies in Lee Burnett's testimony, our inspection of the record has led us to conclude that his testimony was accurate in all material respects and that he demonstrated both an understanding of truth and an ability to recall, notwithstanding his particular ...