APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
A two-count indictment charged Cleo Hister and Joe Newson with the murder of Richard Wilson. They were tried by a jury, convicted and sentenced, each to a term of 16 to 30 years. Newson took an appeal and another division of this court reversed his conviction because "[u]nder all the circumstances it cannot be said that the People's evidence proved that [he] was a party to the killing of Richard Wilson." See People v. Newson, 133 Ill. App.2d 511, 518, 273 N.E.2d 478.
In this appeal by Hister, he presents five issues. I. Whether he was proven guilty beyond a reasonable doubt. II. Whether reversal of Newson's conviction by another division of this court is ground for collateral estoppel in this case. III. Whether the trial court erred in denying defendant's motion for a directed verdict at the close of the State's case. IV. Whether the trial court erred in refusing to instruct the jury regarding circumstantial evidence. V. Whether a conversation between a court bailiff and a juror, during the jury's deliberations, so prejudiced defendant as to necessitate reversal of his conviction. We begin with a summary of the material evidence.
On April 28, 1968, sometime near 10 P.M., Johnny Wilson was driving his automobile in the vicinity of West 65th Street and Harvard Avenue in the City of Chicago. He saw Joe Newson and Warren Parker pass in front of him and enter a nearby building. In his testimony, Wilson told the jury that Newson was carrying a package or bundle which appeared to contain a gun. Although he did not actually see one, Wilson said, "I know it was a weapon he had." Shortly thereafter, Wilson went into a nearby liquor store, made a purchase and then returned to his home. At about 10 P.M., he heard gunfire; and when he went to 305 West 65th Street, he saw his 15-year-old son, Richard Wilson, lying on the street with a gunshot wound on the left side of his face. This wound caused Richard's death two days later.
During the evening of April 28, between 8:30 and 9:00 P.M., 11-year-old Gregory Lee and Tony Lewis were tandem riding a bicycle when Lee saw defendant, Newson and four other persons in an alley on Normal Avenue between 65th Street and 65th Place. At that time, according to Lee, it was "real dark outdoors." Lee told the jury that he saw Newson with a shotgun. Then he said that Newson fired the shotgun at him and Lewis, causing him to take cover behind an automobile. Then Lee said that he saw "Feenanny" (that is, Eugene Adams, another State witness) walking a bicycle along a street and that "* * * one of them, they shot Feenanny." A short time later, Lee learned of the shooting in which Richard Wilson was wounded.
Between 10 and 10:30 the same evening, Jesse Parnell, a 14-year-old eighth grader, was sitting on the porch of his home. He testified that Richard Wilson and Eugene Adams came to him and asked to borrow his bicycle. He let them have it; they drove off together. Then, Parnell was asked whether, before he saw Wilson and Adams, he saw "* * * anybody who is in court today * * *." Parnell said he had not. Parnell was then asked to point out Newson. He did. After this, he was asked, "Do you see anybody in court today you know?" The record shows that the court reporter did not hear Parnell answer. However, the assistant State's Attorney who was asking the question stated, "Let the record reflect he said `Fat Boy'." Parnell then was asked if he had said that. He answered, "Yes." Shortly thereafter, he began to give unexpected answers to questions; he became confused and hesitant in his testimony. Therefore, on the State's motion, he was made a court witness and subjected to cross-examination.
Using leading questions, the assistant State's Attorney asked Parnell if after Wilson and Adams had left, Newson "* * * and Fat Boy came up to your porch?" His answer was, "I don't remember." He was next asked, "Did Fat Boy stick a shotgun into your face?" Parnell answered, "Yes." Then, in answer to questions for the State, Parnell told the jury that Newson and defendant left his porch and ran across 65th Street through a gangway between homes on Harvard Avenue. He said he ran behind them and saw Wilson and Adams on his bicycle riding on the sidewalk along 65th Street toward Yale Avenue. Parnell was next asked if when he saw Wilson and Adams, he saw defendant or Newson with anything in their hands. Parnell did not answer. Finally, the assistant State's Attorney said, "Jesse? Answer my question." Parnell then said, "I don't know." Immediately thereafter, he was asked, "Did you see a rifle or shotgun in Fat Boy's hand?" In answer, Parnell said he saw a shotgun in defendant's hands; that defendant shot the weapon at Wilson, discharging it and hitting him in the face. Soon afterward, Parnell said, defendant and Newson entered a yellowish automobile and drove off.
Parnell, still a court witness, was then questioned by defense counsel. He told the jury that when he ran from the porch to the corner of 65th Street and Harvard, he saw Hister behind a wall of a building and saw an arm sleeve extend out from behind the wall. He said he did not know where Newson was with relation to Hister, that he did not see Newson behind the wall and that he could see nothing behind the wall but the arm. He said he heard a gunshot and saw Adams run. He said that after the shot was fired, he ran back to his porch and saw no more; but when pressed, he said that after the shot was fired, he saw three persons run from the scene, enter and drive off in a yellow hard-top automobile. He testified that because of poor lighting conditions, he was unable to see the heads or faces of the three persons.
The next witness was 13-year-old Dale Lee who testified that on the night in question she was with a group of friends on a porch near 65th Street and Harvard Avenue. At about 9 P.M., Newson came there and asked if anyone had seen Eugene Adams. Newson, according to Dale, said that Adams had stolen his television, and that for this, he "was going to get" Adams.
Adams was the next State witness. He told the jury that Richard Wilson was his uncle and was with him most of the day, April 28. He said that at about 8 P.M., he talked with defendant and thereafter with Newson concerning a television set. Adams admitted that he and two others had stolen the set. A short time after the conversations, he and Wilson met some youths at 65th Street and Harvard and borrowed two bicycles, one from a Larry Whitmore and the other from a Steve Lannier, on which they rode away, separately. Adams told the jury that he did not know Jesse Parnell; and, on the evening in question, did not borrow a bicycle from him. However, the bicycle he was riding broke down, forcing him to "walk" it. As he was doing so, Adams said that defendant came out of a gangway, running past him and saying, "Burn that M.F." At that point, Adams heard a gunshot. He saw other persons in the shadows, but he did not see Newson. After the gunshot, Adams said he fled the scene on foot, observing Wilson turn the corner and approach him. Adams told the jury that he crossed through a vacant lot on Harvard; and as he did, heard another gunshot. Adams denied he was riding double on a bicycle with Wilson.
The last State witness in presentation of its case-in-chief, was Dwight Gayten, also known as Tony Lewis. He testified that about 9 or 10 P.M., on the evening in question, he and Gregory Lee were riding the same bicycle when Newson and defendant accosted them at the corner of 65th Street and Stewart Avenue. Defendant asked for Eugene Adams and, when an unfavorable response was given, Newson drew a pistol and held Gayten and Lee at gun point 15 to 20 minutes until a passing police car afforded them the chance to escape. Gayten said that someone then fired a shotgun at them. After that, he went to the porch of a neighboring house, from which he heard two more gunshots. A short time later, according to Gayten, he saw defendant and Newson drive off in a 1962 or 1963 Chevrolet.
With the testimony of these witnesses and that of a pathologist who gave the shotgun wound as the cause of Richard Wilson's death, the State rested its case. Defendant's defense was an alibi. In its support, he called his mother, his brother, his sister and a young woman with whom he was living at the time. He testified to his whereabouts on April 28, 1968, between 6 and 11:30 P.M. He denied killing or participating in the killing of Richard Wilson; he denied ever knowing his co-defendant, Joe Newson; he denied that he had a nickname "Fat Boy." His sister, the only witness asked the question, told the jury that her brother had never been known by that nickname.
Newson's defense was also an alibi. In its support he called ten witnesses. In addition, he testified, gave the details of his whereabouts during the evening in question and denied ever knowing defendant. He told the jury, categorically, that he did not kill or participate in the killing of Richard Wilson. After both defendants rested their respective cases, witnesses in rebuttal and surrebuttal were called and testified in support of the State's claim that Newson was present at the time of and near the scene of the shooting. Some gave testimony concerning the description of the assailants; others testified to what they said was the residence of Newson and his brothers. This is the evidence from which defendant presents the issue whether the State proved, beyond a reasonable doubt, that in the evening of April 28, 1968, he committed murder by shooting Richard Wilson with a shotgun. The issue is resolved by application of well known principles of our criminal law.
• 1 In the prosecution of a criminal case, it is the burden of the State to present evidence which proves beyond a reasonable doubt not only that a crime was committed, but that the accused was the party who committed or participated in the commission of that crime. (People v. Burgard, 377 Ill. 322, 36 N.E.2d 558; People v. Newson, 133 Ill. App.2d 511, 273 N.E.2d 478.) Where conviction for a crime depends on the identity of an accused, a reviewing court will examine the evidence of identification because a conviction that rests on identification which is doubtful, vague and uncertain, will be reversed. (See People v. Christocakos, 357 Ill. 599, 602, 192 N.E. 677; People v. Cook, 113 Ill. App.2d 231, 252 N.E.2d 29.) Our supreme court has said that a guilty verdict cannot rest on identification evidence which does not produce an abiding conviction of guilt. People v. Fiorita, 339 Ill. 78, 170 N.E. 690; People v. Kidd, 410 Ill. 271, 102 N.E.2d 141.
• 2 In the case before us, there was evidence of an alibi. This evidence, if believed, proved that, at the time and place in question, defendant was not Richard Wilson's assailant because he was too far from the scene of the crime to have committed it. (People v. Ritcheson, 396 Ill. 146, 71 N.E.2d 30; People v. Brown, 118 Ill. App.2d 41, 254 N.E.2d 654.) In contradiction of this alibi, all of the State's evidence against defendant concerned his identity as the person who shot and killed Richard Wilson. Proof of an alibi cannot be disregarded where the sole and only evidence contradicting it concerns defendant's identity as the person who committed the crime. People v. Peck, 358 Ill. 642, 193 N.E. 609; People v. McGee, 21 Ill.2d 440, 173 N.E.2d 434; People v. Martin, 95 Ill. App.2d 457, 238 N.E.2d 205.
The record shows that in its case-in-chief, the State called seven witnesses. One was Johnny Wilson, Richard Wilson's father. Another was Dr. William Quinton Sturner who performed an autopsy on Richard Wilson two days after he was shot and testified to the cause of his death. Therefore, these two witnesses did not give any evidence that connected defendant with the shooting of Richard Wilson.
The other five witnesses were neighborhood young people, ranging in age from 11 to 17 years, none of whom claimed that prior to the evening in question they had seen the person they said was the defendant. All who were asked, however, admitted that they had never seen that person before. Therefore, with these facts in mind, we have examined the testimony of these young people; and being mindful of their immaturity, their difficulty in responding to questions and the pressure of their appearance as witnesses in a criminal case, we think it is a fair summary to say that the evidence they gave was confusing and contradictory.
In People v. Newson, 133 Ill. App.2d 511, 273 N.E.2d 478, another division of this court reached the same conclusion when it reversed Newson's conviction. Speaking through Mr. Justice Burke, the most experienced appellate court judge in this State, and referring to the testimony of these young people, the court said that "[f]urther contradictions and inconsistencies exist between the testimony of many of the People's witnesses, most of whom were in their early teen-age years: some of them stated that Hister and defendant Newson were looking for the deceased prior to the shooting, whereas others stated that Hister and Newson were looking for Adams. Many of the People's witnesses were unable to tell the difference between north and south, east and west, yet they testified as to the locations where they said they saw Hister and Newson and other interested persons. There were also discrepancies between defendant Newson's clothing, the automobile he was allegedly driving, descriptions of defendant Newson himself, the type of weapon brandished, who brandished the weapon, and the like." Clearly, this appraisal was not limited to Newson's contention that he was not proven guilty beyond a reasonable doubt; it was a general appraisal of the evidence, without regard to the defendant involved.
The same appraisal applies particularly to the State's real witness against defendant, Jesse Parnell, the 14-year-old boy who said he saw Richard Wilson get shot. Despite this important fact, when the State went to the grand jury in this case, its witnesses were the police officer who investigated the shooting of Richard Wilson and a person named Roosevelt Allen. The officer was a witness in the trial, but Allen was not. In fact, his name was not on the State's list of witnesses. Nor was Jesse Parnell's. However, on the day of trial, with jury selection about to begin, the State moved for leave to amend its list of witnesses and add the name of Jesse Parnell. Over defendants' objections, the motion was granted with the understanding that defense counsel could interview Parnell before he testified. The interview took place; and later, counsel for defendants told the trial judge that, from their observation, Parnell was under the influence of an assistant State's Attorney prosecuting the case and was being bullied by an older brother. At the insistence of Newson's counsel, and with the cooperation of the assistant State's Attorney in charge, the brother was asked to leave the courtroom while Parnell testified.
When he did, Parnell immediately exhibited an inability to understand and answer the questions put to him. At the request of the assistant State's Attorney, there was a conference in chambers. In the colloquy between court and counsel that followed, Parnell was described as being "confused" and "nervous." Then, following another attempt to get answers from him, the State requested that he be made a court witness. *fn1 The request was granted; and thereafter, Parnell was asked leading questions most of which he answered by indicating affirmative agreement. During one phase of his testimony, he was asked to identify the defendants. He did not hesitate in pointing out Newson as one of the three persons he said he saw in the evening that Richard Wilson was killed. But when he came to the place where defendant was sitting, the record shows that Parnell gave no response to the request that he point him out. Yet, the examining assistant State's Attorney, after requesting an answer and getting none, asked that the record show Parnell as having said, "Fat Boy" and identifying defendant by that nickname. Defendant, however, testified and denied he had ever been known by that nickname. His sister, who was the only witness asked, corroborated defendant's denial and said she had never known her brother to use the nickname, "Fat Boy." The State did not rebut this testimony; and our examination of the State's case-in-chief discloses that no prosecution witness testified that, to his knowledge, the defendant, prior to April 28, 1968 had used or responded to the name "Fat Boy."
What is more important is the contradiction of Jesse Parnell by Eugene Adams, who the State was not required to call as a court witness. Parnell had testified that on the evening of April 28, 1968, Adams and Richard Wilson borrowed a bicycle from him and rode off on it together. Adams, in contradiction, testified that not only had he and Wilson not borrowed a bicycle from Parnell; he did not know Parnell at all. Adams told the jury that during the evening in question, he and Wilson had, in fact, borrowed two bicycles, naming the lenders. Adams then testified and crucially contravened Parnell when he said that just before he heard some shooting, he ...