APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 5, 1974.
Defendants Harvie Morrow and Rick Mackins were jointly indicted and tried for attempt rape (Ill. Rev. Stat. 1969, ch. 38, par. 8-4) and murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1.) After a jury trial, each was found guilty of both offenses. Consecutive penitentiary sentences were imposed upon Morrow of nine to 14 years for attempt rape and 50 to 150 years for murder; and upon Mackins of six to 12 years for attempt rape and 30 to 75 years for murder. Represented by separate counsel, both have appealed.
The contentions raised by both defendants are:
1. In each instance, the evidence was not sufficient to prove guilt beyond a reasonable doubt. In this particular, defendant Mackins urges that his guilt on the theory of accountability rests entirely on speculation.
2. The original arrest of defendants was unlawful and they did not give valid consent to seizure of their clothing by the police so that their fourth amendment rights were violated.
3. The trial court erred in receiving expert testimony on the significance of certain evidence.
4. The trial court erred in admonitions to the jury regarding the testimony of a defense witness.
5. The trial court erred in permitting the jury to hear evidence regarding results of a lie detector test upon another suspect.
6. The trial court erred in receiving hearsay evidence.
7. The trial court erred in permitting evidence linking the advice of a State's Attorney with the bringing of murder charges.
8. The trial court erred in instructing the jury on the theory of accountability.
9. Conviction of defendants was unfair because based upon prejudicial argument by the prosecution to the jury.
10. Defendants were improperly sentenced to consecutive sentences for two offenses arising out of the same conduct.
The deceased was a young girl some 17 years of age. On Sunday, August 22, 1971, she was visiting a young lady friend who lived on the south side of West 47th Street shortly east of Racine Avenue in Chicago. This friend testified that the deceased left her home at approximately 11:30 P.M. or a quarter to 12 that evening. The deceased lived some distance west of the friend's home. The friend advised her to take a bus and gave her 45¢ for her fare. The friend walked her to the front gate where they parted, with the deceased walking west on 47th Street and about to cross to the north side of the street.
The body of the deceased was found about 5:20 A.M. in the vicinity of the northeast corner of 47th Street and Racine Avenue. The lower part of the body was nude. The legs were completely spread apart. A sanitary napkin had been removed and was found a short distance away. She had been wearing an undergarment of panties and jeans with the leg portion removed. Both of these articles were found close to the body. Her bus fare of 45¢ was found near her hand. There are railroad tracks in this vicinity and the body was found adjacent to a small shack. The ground in that area might be described as dirt with particles of stone or rock intermingled. An automobile could enter this area if it were driven to the right of the body.
Pathological examination showed that the victim died from manual strangulation which had caused her death from asphyxiation. The examining physician found that the back portion of the body was covered with dirt. There were five scratch marks on the skin of her neck. In the opinion of the doctor, these marks had been caused by fingernails. There were an abrasion of the chin, a black and blue bruise inside the left thigh and a fracture of the larynx. A vaginal swab did not show sperm. In the opinion of the doctor, the deceased came to her death some time before midnight.
At approximately 12:45 on the morning of Monday, August 23, 1971, two police officers were driving an unmarked automobile in the area of 43rd and Laflin Streets for investigation of burglaries. They observed an automobile occupied by two men parked at the curb without lights. This was about one half mile from the scene of the murder. The officers turned their headlights on the car and it sped away, westbound. The car then halted for a traffic light at 43rd Street and Ashland Avenue about one block away. The officers stopped behind it and approached. They identified the occupants of the car as the defendants. Morrow was driving and Mackins was a passenger.
One of the officers testified that when he announced his office, defendant Morrow, "gave me a look of fear that I never seen before." The officers told these men to stay where they were. Instead, the car sped away westbound through the red light. The officers pursued again and overtook the automobile. Defendants were placed under arrest. Police observed fresh bleeding scratches on Morrow's face, dirt upon his face and clothes and the fact that he was not wearing shoes. They noted also that both men had been drinking. In their report, the officer characterized Morrow's condition as the lowest on a scale of various stages of intoxication. Defendants were charged with minor offenses not relevant here. Their automobile was removed to the police pound. Sometime during the course of the next day, they made bond and were released. At that time, the arresting officers were unaware of the homicide.
A woman named Betty Bilben lived next door to the east on the same side of 47th Street as the friend the deceased had visited. About 11:30 on the evening in question, she was looking out of the open window at 47th Street. She noticed a black Buick automobile with a dent in the door on the driver's side and also a patch of gray paint on the back of the car where some work on the body had been done. There were two men in the car whom she could neither identify nor describe. She saw the automobile driven along close to the curb, first in a westerly direction and then it returned and drove by in an easterly direction, also close to the sidewalk. She also noted a bus driving west on 47th Street. She did not know if it was one which followed a route directly west on 47th Street or whether it would turn left or to the south on Racine Avenue which would be the next street to the west.
At about a quarter to 12 or ten minutes to 12, after she had first seen this automobile, she saw the deceased at the gate of the neighbor's house talking to her friend. She saw the deceased walk several houses to the west then cross over to the north side of 47th Street, then walk west and take a position on the northeast corner of 47th Street and Racine Avenue. At that time, she again saw the car with the two men which was then going east. This witness testified that a member of her family had been shot about a month before and she had been watching for people involved in this who had passed back and forth in front of their home.
Shortly thereafter, when commission of the murder became public knowledge, this witness called the police and told them what she had seen. Two officers took her to the police pound and drove her up and down between lanes of parked automobiles. After looking at some 25 or perhaps 50 cars, she identified the automobile in which defendants had been arrested as the same car that she had seen twice on the night of the murder. After this, the police told her that she should look at some of the other cars. They drove about and she looked at 100 or 150 additional automobiles and persisted in her identification of the same car.
A police investigation then ensued. The two defendants were contacted by the police and they voluntarily came to the station. Morrow was wearing the same clothes that he did upon the night in question. Police went to his home and obtained a change of clothing for him upon their request. He gave them the shirt and trousers that he had been wearing. Mackins was wearing the same trousers but a different shirt. Upon a telephone call to his mother from the police, she brought a pair of trousers and the shirt he had previously worn. Thus, the shirt and trousers of each defendant were voluntarily given into police custody. Prior to this time defendants had both been given proper Miranda warnings. They also gave the police samples of their blood for analysis. In addition, samples of the dirt were taken from the area in the immediate vicinity of the body. Additional samples were taken of dirt and debris which had accumulated under the left front fender of the automobile.
A police microanalyst testified that the deceased had blood of type O, type M-N; Morrow's blood was type O-N; Mackins was type A-N. There is testimony that some 43% of the population have blood in various subdivisions of the "O" type. Human blood of type O was found on the panties of deceased but there was insufficient quantity to ascertain additional typing details. The palm of one hand of the deceased also bore traces of human blood classified as type O. There was no wound on this hand of the deceased.
The microanalyst described in detail how he had vacuumed all of the clothes concerned and then had made microscopic examinations of fibers adhering thereto. As a result, he testified that six nylon fibers were found on the cotton blouse of the deceased. In the opinion of the expert, these fibers and those comprising the trousers worn by Mackins were morphologically similar and identical with respect to their microscopic properties. In addition, seven cotton fibers of reddish cast were found on the trousers of Mackins, which were black, and upon his shirt. These red fibers were morphologically similar and identical in their microscopic properties to the fibers which comprised a cotton blouse of deceased. The expert described this as a cross-match between these two different types of fibers which he had never seen before in hundreds of similar examinations.
The expert also found that Morrow's blue denim trousers had eight cotton fibers which were morphologically similar and identical in microscopic properties to the cotton fibers comprising the blouse of deceased. The expert expressed the opinion that there was a strong probability of physical contact between these various articles of clothing although it was conceded that microscopic fibers of this type could possibly be airborne. The expert also found blood traces on the shirt and trousers of Mackins but could not type the blood as to whether it was human or not because of the limited quantity. The expert did find human blood on Morrow's shirt sleeve and also found human blood of type O on his trousers. There were traces of blood found under the fingernails of the deceased but limited quantity made further classification impossible.
An expert chemist called by the State testified that, in the dirt taken from the murder site and also in the material found adhering underneath the left fender of the automobile, layers of paint were found with gray, green and black layers in that order. These were very minute chips and the material of gray color could possibly be cement. The expert put these particles from both sources to a solubility test and found them all similar. He then subjected both types of samples to a sophisticated machine called an emission spectrograph. This apparatus vaporizes a microscopic portion of the material by use of a laser beam and then takes a photograph of the resulting spectrum or color chart. The witness testified that he tested only both samples of the green paint in this manner. Tests of the black and gray layers would have been of doubtful value because paints of these colors generally have the same chemical composition. The expert found and concluded that both types of green paint vaporized to produce an identical spectrum so that, in his opinion, the particles of the green paint found at the site were chemically identical with the particles found under the left fender of the car. Other microscopic and chemical examination showed that these two green samples were quite similar.
Defendants had previously petitioned the court for a chemical expert to be supplied to them at State expense. Their expert testified that there was a morphological similarity between the fibers which composed the victim's blouse and those found on the clothing of Mackins. However, he reasoned that this type of fiber was fairly common and that since only fibers of various red shades had been found on the trousers worn by Mackins, the fact that there were also white fibers on the girl's blouse tended to lessen the probabilities that her blouse was the source of the fibers in question. This expert made a test of the paint chips upon a different type of scientific machine. In his opinion, the green paint chips were similar in character but he expressed the opinion that common use of paint of this color qualified the point of similarity. Analysis by his machine, however, did show a similarity between the two samples of green paint but he could not say that the two samples were identical as to chemical composition. However, this witness had never used the emission spectrograph with the laser beam. He expressed the conclusion to the jury that he found similarities in the samples and also differences so that the samples could or could not be from the same source.
Each defendant testified in his own behalf. Mackins consumed various cans of beer at several taverns during the afternoon in question and returned to his home about 5:00 or 5:30 P.M. He and Morrow each drank a fifth of wine. They then went to a chili parlor together where they had some chili. They drove to this place in Morrow's car. At that time, it was dark but Mackins did not recall the time. He testified that after leaving the chili parlor they went to a liquor store where each of them bought another fifth of wine. They parked Morrow's car on the south side of 33rd Street, in front of an apartment building where they both lived. He testified that a police squad car passed by and that Morrow jumped out of the car from the driver's seat and ran toward the apartment building. He tripped and fell in the dirt at that point. He himself had stepped out of the car but both reentered.
Mackins also remembered that they then drove away in the car, some time during the night. At 22nd Street and Western Avenue they picked up a lady accompanied by three small children who was apparently waiting for a bus. They were holding newspapers over their heads to shield themselves from the rain. Mackins had a good recollection of this event, how he had first spoken to the lady; had invited her into the automobile and had pulled back his seat so that she and the children could enter. He knew that they had taken the lady and the children to their home in the area of 18th Street and Blue Island. He remembered that the lady had offered Morrow a dollar for his kindness which he had first refused and then accepted. He then stated that he fell sound asleep and had no recollection of anything until the police siren woke him up.
On cross-examination, Mackins conceded that he told the police he was sleeping from 11:00 P.M. until 1:00 A.M. the next morning. The arrest by these officers took place at approximately 12:45 A.M. He also told the police that he did not know how Morrow was scratched about the face and ear. Mackins' testimony was that he has bitten his ...