APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Andrew Weathers, the defendant, was charged by indictments with murder, attempted robbery and three counts of armed robbery. Following a jury trial he was found guilty of murder, attempt and two counts of armed robbery. He was sentenced to serve not less than 40 nor more than 80 years in the penitentiary on the murder charge, and he instituted the present appeal.
On appeal he contends that (1) his arrest was improper, (2) his oral and written statements, made while in the custody of the police, should have been suppressed, (3) the statement of an alleged co-participant in the offense should not have been read to the jury, (4) the State concealed evidence favorable to his defense, (5) the court improperly refused to submit jury instructions concerning involuntary manslaughter and reckless conduct, (6) he was not proven guilty beyond a reasonable doubt, and (7) his sentence is excessive.
We summarize the evidence. On May 1, 1971, at about 2 o'clock in the morning, Willie Johnson drove his automobile into the rear of a gas station located at Lexington Street and California Avenue. He got out of the car to go to the rest room. P.L. Johnson and Ernest Douglas remained in the front seat, and Herman Milton was asleep in the rear. While Johnson was outside of the car he saw two negro men run up. One was skinny and the other "kind of heavy." The skinny one said, "I want your money." When Johnson said that he had no money, the skinny one searched him and took some money out of his inside pocket. After this he heard a shot and the robbers fled.
P.L. Johnson, also known as Frank Johnson, testified that he saw two men go through Willie Johnson's pockets. One of the men was very small and the other one was "pretty heavy." After the two had robbed Willie Johnson, the heavy man (the defendant) entered the front seat and took his money and a gold watch. The defendant then got out of the car and stood beside it along with the other man. He reached into the back seat and touched Milton on the knee. Milton said, "No man, don't do that to me" and went back to sleep. The defendant rolled down the rear window and said to Milton, "Man, if you don't give me that money out of there I will kill you. I will blow your head off." At this time the defendant was holding a sawed-off shotgun. Johnson heard two blasts, and the robbers fled. He looked into the back seat and saw Milton slumped over with a wound in his neck. He identified a gold watch in evidence as being the watch taken from him and also identified a shotgun as being similar to the one used to shoot Milton.
King Ward testified as a witness for the State. He stated that he was a friend of the defendant, who was also known as "Casino", and had known him all his life. He was reluctant to testify against the defendant, but did so because he was subpoenaed. He related that there was a small party in the defendant's apartment on the evening of April 30. Everyone there was drinking. The defendant showed him three pieces of a shotgun and asked him to put it together, which he did. The defendant asked him for some shotgun shells, but he told the defendant that he did not have any. However, someone else at the party stated that he had some.
At about 2 o'clock in the morning, the defendant left the apartment with Tyrone Hughes and a girl named Renee. The three of them returned at about 3 o'clock, and the defendant gave Ward the shotgun, which was again in three pieces. Ward asked the defendant about the shells, and the defendant said that he had thrown them away. The defendant had borrowed Ward's jacket, and he returned it along with the gun. Ward gave the gun to James Clemmons, also known as "Sug", and later the same day (May 1) went to Clemmons' apartment along with the police to recover the weapon. He was also present when the police recovered a gold watch from the pocket of the jacket that he had loaned to the defendant.
Renee Fox, who was 16 years old, testified for the prosecution. She stated that she and the defendant left the party along with Tyrone Hughes, and the three of them "drove around" in a red and black Dodge Charger driven by Tyrone. They stopped near Lexington and California, and the two men got out. She fell asleep, but was awakened by gun shots. Hughes and the defendant returned, and they went back to the defendant's apartment where the defendant gave a rifle to King Ward.
The police arrived at the scene of the shooting, and it was ascertained that Milton was dead. Doctor Jerry Kearns, a pathologist, testified that he conducted an autopsy on Milton's body, and that Milton died of a gunshot wound in the neck and skull. The police investigation led ultimately to the defendant and Tyrone Hughes, and they were arrested. At first the defendant denied any knowledge of the offense, but later he admitted participation in the robbery. He denied, however, that he and Hughes had intended to shoot anyone and stated that the gun went off accidentally as he was attempting to take it away from Hughes.
We begin by considering whether the defendant's arrest was improper. He argues that the officers had no warrant and had no reasonable grounds to believe that he had committed a crime and therefore that his arrest should have been quashed. It is undisputed that the officers did not have a warrant. However, the State contends that the prior police investigation established sufficient probable cause to arrest the defendant. After reviewing the record, we agree.
Officer Kenneth Spink testified that he arrived at the scene of the shooting prior to the removal of Milton's body. He interviewed Milton's companions and other persons on the scene. A witness, Miriam McGee, informed him that the car driven by the offenders was a red and black Dodge Charger, and he passed this information along to Officers Thomas Sherry and James Griffin, who were assigned to investigate the incident at 8:30 that morning.
Sherry and Griffin both testified that they spoke with Officer Niebalic and were informed that he had issued a traffic ticket to the driver of a red and black 1969 Dodge Charger at 2:45 A.M. at a location 1 or 2 miles from the gas station. The ticket identified the driver as Tyrone Hughes of 2212 West Flournoy Street and listed the license plate number of the car as PE4697. The officers returned to the area of the gas station and interviewed Miriam McGee, who stated that she had memorized the license number of the car that she had seen and that it was PE4697.
Sherry and Griffin went to 2212 West Flournoy, where they were joined by Officer Soil. They spoke to Mrs. Neeley, who stated that she was Tyrone's mother. She told them that her son was known as "Jap". She also told them that her stepson, John McChristian, had a red and black 1969 Dodge Charger. They spoke to Tyrone's brother, Edward Hughes, who told them that Tyrone and a person named "Casino" had been in possession of the car between 1 and 3 o'clock in the morning. He also told them that he did not know Casino's real name, but that Tyrone could probably be found either at a nearby pool room or at Casino's apartment, which was located at 1815 West Monroe Street.
The officers had been given a description of Hughes by his brother. They also had obtained a general description of the offenders from the victims and had learned that one of the offenders had probably been hit in the jaw by the shotgun when it went off. They went to the pool room, but did not find either Hughes or Casino. They then proceeded to 1815 West Monroe, where they ascertained the number of Casino's apartment by asking a boy who lived in the building. There is a conflict in the testimony as to the manner in which the officers gained entry to the apartment; however, it is immaterial to the question of probable cause. Once ...