APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was found guilty of murder, armed robbery, and unlawful possession of weapons in violation of sections 9-1, 9-1(a)(2), 9-1(a)(3), 18-2, and 24-1(a)(7) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, pars. 9-1, 9-1(a)(2), 9-1(a)(3), 18-2, and 24-1(a) (7)) and was sentenced to a term of 25 to 80 years. He appeals contending: (1) that the evidence did not prove him guilty beyond a reasonable doubt, (2) that the court's findings were inconsistent, and (3) that he was denied a fair trial when the court improperly shifted the burden of proof to him.
The following evidence was adduced at trial:
Willis Bulliner testified for the State:
On June 19, 1970, at about 1:25 or 1:30 A.M., he was watching television at his home on the northwest corner of 74th Street and Union in Chicago when he heard two shots. The first shot was "a real loud blast, like a shotgun, and the other was a sharp report like a small hand pistol." He heard a car door slam and someone running. He went to the window and saw a police squad car facing west on 74th Street parked near the curb next to the house. The light was on in the police car and he saw the officer lying in it. He told his wife to call the police and he went down to the car. There was a large hole in the window on the passenger side of the car. The officer (who had been identified as Officer Kenneth Kaner) lay dead on the seat.
Chicago Police Officer Edward Brown testified for the State:
On June 19, 1970, he and his partner, Carl Malek, were heading east on 72nd Street at Halsted in their unmarked car on routine patrol. Malek was driving. At about 1:28 or 1:29 A.M., they saw a two-door 1963 Corvair without license plates and taillight reflectors facing east on 72d Street. They followed the Corvair east on 72d and turned on their oscillating light just as the Corvair turned left onto Union Avenue. The three passengers in the back seat of the Corvair looked back at their car. The Corvair stopped on Union in the middle of the street, midway between 71st and 72d Streets. Malek stopped about three feet behind the Corvair. The driver of the Corvair, Bradley Green, and the passenger in the front seat, William Redwine, exited the car. Redwine immediately put his arms in the air as if someone had said, "Stick them up."
Brown walked toward the front of the stopped car. He observed a "License Applied For" sticker in the name of William Redwine on the windshield. While walking back, he noticed an open bottle of Miller High Life Beer on the front floor. As he opened the car door to retrieve the beer, one of the three passengers in the back seat moved. Bruce Sharp was seated directly behind the driver's seat with Dwight Cavin in the middle and Jerome Amos next to Cavin. Brown saw the butt of a gun (a .38 caliber Colt) on the floor between Cavin's feet. He quickly grabbed the gun and warned Malek that the other two passengers might be armed. He ordered the three passengers out of the car and searched the car while Malek watched the offenders. He found some shotgun shells on the floor of the back seat and noticed the stock of a shotgun extending onto the floor from under the front passenger's seat. He unloaded the shotgun, removing one live and one spent cartridge. He smelled the odor of fresh powder on the expended cartridge. He also unloaded the .38 Colt and put both guns on the hood of the car. He told Malek to call for assistance. When Malek went back to the police car, they heard for the first time that a police officer had been shot at 74th and Union.
At about that time, a police car driven by Chicago Police Officer Frederick Cowan came down Union. The officers asked Cowan what their location was so they could call for assistance. Cowan backed his car up to look at a street sign and then stayed to render assistance. Cowan searched the offenders and Malek completed searching the car. Malek discovered another revolver (a .38-caliber Smith and Wesson), some .38 cartridges and some shotgun shells. The offenders were then transported to the 7th District. At the station, the officers inventoried the evidence which included one spent .38 cartridge and a spent shotgun shell, and made their reports.
Chicago Police Officer Carl Malek testified for the State:
His testimony substantially corroborated Officer Brown's testimony. In addition, he testified that while he was driving down 72nd Street he observed a Corvair stopped in the middle of the street between Union and Emerald and that Bradley Green left the front passenger's seat, walked around the car, and began driving. The car had neither license plates nor taillight reflectors. When the Corvair stopped, Redwine raised his hands immediately after leaving the car. Malek stated that he found a gun (the .38 Smith and Wesson) underneath the driver's seat and some shotgun shells in the glove compartment.
Chicago Police Officer Frederick Cowan testified for the State:
At about 1:25 or 1:30 A.M. on June 19, 1970, he received a radio call that an officer had been shot at 74th and Union. He proceeded in his marked patrol car down 71st Street and turned right on Union where he saw a Corvair in the middle of the street. He got out of his car intending to ask that the stopped car be moved when he recognized Officers Brown and Malek. At their request, he backed his car up to the corner to determine the exact location and then searched the offenders. He recovered some shotgun shells from Sharp.
The other evidence at trial indicates that Officer Kaner died as a result of being shot in the head by a shotgun and by a .38-caliber revolver. Although it appears that the cartridges from the two .38-caliber revolvers recovered at the time of the arrest were commingled prior to being inventoried, ballistics evidence indicated that the .38-caliber weapon which fired one of the fatal shots was the Smith and Wesson revolver found under the driver's seat of the Corvair. The .38-caliber Colt revolver, which was found between Cavin's feet on the floor of the back seat, was identified as Officer Kaner's service revolver. A partial fingerprint found on Officer Kaner's gun was proved to be the fingerprint of Jerome Amos' right ring finger. The shotgun found under the passenger's seat in the Corvair could not be ballistically identified ...