APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Glenn Burr, a black youth, was shot and killed as he, his sister Theresa, his cousin Nathaniel Burr, and two friends, Verlinda Hamilton and Phyllis Taylor, were walking on a Chicago street. The young people had left the Burr home on north Leavitt Street on June 27, 1971, about 9:55 P.M. At the corner of Leavitt and Potomac, the defendant, Gustavo Colon, who was armed with a gun, and his friend Florentine Menendez, approached the group. Menendez pointed at Glenn Burr and said, "Shoot that black mother fucker." Glenn attempted to flee, but Colon shot him and discharged three more bullets into him after he fell to the ground. Colon then went up to Verlinda Hamilton, put the gun to her head, smiled, and pulled the trigger, but the gun did not fire.
Glenn was pronounced dead on arrival at St. Mary's Hospital. His companions gathered at the hospital, but only one of them described the murderer. The others provided descriptions within a few days and all four positively identified Colon as the killer.
A jury found Colon guilty of murder and he was sentenced to serve a term of 30 to 60 years in prison. He seeks reversal and remandment of his conviction based upon these asserted deprivations of his right to a fair trial: (1) admission into evidence of prejudicial hearsay testimony; (2) foreclosure of defense attempts to impeach a key State witness; (3) consideration of incomptent evidence in aggravation, which resulted in the imposition of an excessively harsh sentence, and (4) ineffective representation by his counsel.
At the trial three of the eyewitnesses explained why they did not identify the slayer or give his description to the police at the hospital. Theresa Burr stated that she was hysterical on the night of the murder and could talk to no one. Verlinda Hamilton had seen Colon 11 or 12 times before the slaying and recognized him, but she said she had assumed that Nathaniel Burr would provide the information to the police. Nathaniel Burr said he spoke to police at the hospital, but was not asked for a description at that time and gave none. He returned home and told his mother that he knew who had done the shooting but feared reprisals if he talked. The police came to his home within a few hours and, persuaded that he had nothing to fear, he told them who had done the shooting and then selected pictures of Colon and Menendez from among at least 50 photographs. Phyllis Taylor, who had given a description to the police at the hospital, said that a few days later they brought a number of pictures for her to view; she selected one of Colon and identified him as the gunman.
Investigator James Acosta of the Chicago Police Department corroborated the testimony of the four occurrence witnesses relating to the time and circumstances of their identifications. He said that Nathaniel Burr, when reached at his home, had named Colon and Menendez, known to him by their nicknames "Hercules" and "Brillo," members of the Latin Kings gang, as the persons who had accosted his cousin; he described them and pointed out their photographs. Officer Robert Kaiser testified that he knew Colon and Menendez, and that on the day of the murder he had seen both men in the area of the shooting. He participated in the arrest of Colon, which took place on August 20, 1971. It was stipulated that Menendez had died before the trial.
Colon testified that he spent June 27 at his mother's home, working on a neighbor's automobile and then joined in a celebration in honor of his brother, Jose, who had just returned from the Army. Several persons testified in support of his alibi. The neighbor, Angel Jimenez, said Colon worked on his auto's transmission unitl 9:45 P.M. Jimenez said he went to the party and that he saw Jose Colon and 20 other persons there. Barbara McLemore, a friend of the defendant, said that he was not out of her sight on June 27 from 5 P.M. until she left the party at 11 P.M. She believed he stopped working on the car at 8:30. Daniel McLemore did not attend the party but drove to the Colon home to pick up Barbara, his wife. He believed that the party was held on Saturday, June 26, not on Sunday the 27th. Carmen Falcon, Colon's sister-in-law, testified that she attended the party on June 27. She recalled that only five or six persons were present.
Jose Colon testified for the State in rebuttal. His testimony indicated that he was not at his mother's home in Chicago on June 27, 1971, or on any other day in the month of June. He stated that during the summer of 1971 he was absent without leave from his assigned Army post at Fort Dix, New Jersey. He did not remember the specific day he left the fort, but he said that on the day he departed he went to his father's house in Brooklyn, New York, where he stayed for 2 or 2 1/2 months. Although he said that he worked on an automobile with his brother the day of his return to Chicago, he further stated that he arrived at his mother's home only one day before his brother's arrest.
Sergeant Lawrence Struck, a military policeman stationed at Fort Sheridan, Illinois, substantiated Jose's testimony. Struck's testimony, unobjected to by the defense, was that a personal check of the records of the Absentee and Deserter Information Center of Fort Benjamin Harrison, Indiana, revealed that Jose Colon was reported absent without leave from Fort Dix on May 28, 1971, and was classified as a deserter 1 month after that date. The defendant contends that it was plain error, of which this court should take notice, for the trial court to admit into evidence Struck's testimony. He asserts that the testimony was hearsay, that it violated the best evidence rule and that it "completely destroyed" his alibi.
• 1-3 The testimony complained of was hearsay and we do not doubt that it would have been ruled inadmissible if a timely objection had been made to it. If, as the defendant argues, this testimony utterly eviscerated his defense, then the doctrine of plain error might dictate a reversal and retrial, notwithstanding the failure of his counsel to object when the testimony was submitted. (Ill. Rev. Stat. 1971, ch. 110A, par. 615; see People v. Wright (1965), 65 Ill. App.2d 23, 212 N.E.2d 126.) If, on the other hand, in light of the entire record it is apparent that the testimony was not prejudicial, any error committed by its reception would not warrant reversal. (People v. Pelkola (1960), 19 Ill.2d 156, 166 N.E.2d 54.) Prejudicial error is most likely when the record shows a close factual situation. People v. O'Connell (1964), 30 Ill.2d 603, 198 N.E.2d 834.
• 4 We cannot accept the defendant's estimate of the importance of this testimony. First, despite the number of witnesses who supported it, the story about the celebration to honor the return of a fugitive seemed contrived. The testimony contained contradictions concerning the date of the party, the number of persons present and the hour at which the defendant ceased working on Jimenez' car. More important, the alibi was destroyed by the testimony of the defendant's own brother. The statements made by Struck were only cumulative and corroborative of Jose Colon's earlier testimony to the effect that he had not been in Chicago on the date of the gathering supposedly held to honor him. While he did not definitely state the date he came to Chicago, he did say that he went from Fort Dix to Brooklyn and stayed there for at least 2 months, and that he was there on July 4, 7 days after the defendant and his witnesses testified they celebrated his return home. He also stated that he did not see his mother and brother until the day before Gustavo's arrest, which was fixed by other witnesses at a date late in August 1971. Thus, the purported guest of honor at the party intended to establish the defendant's alibi had impeached the alibi witnesses before Struck uttered a word of testimony. Hearsay testimony has been held to be harmless where it merely repeats that which has already been proven by competent testimony. (People v. Thompson (1970), 128 Ill. App.2d 420, 263 N.E.2d 124; People v. Smith (1969), 105 Ill. App.2d 8, 245 N.E.2d 23.) Additionally, the prosecution's affirmative proof of guilt must be considered. Four witnesses, at least two of whom knew the defendant, by sight or nickname, viewed the shooting at close range, and were positive in their identification of him as the murderer.
• 5 Notwithstanding this overpowering evidence of guilt, the argument is made that an appellate court should not second guess the jury and declare an error's effect to be harmless. This argument receives some support in the following statement from People v. Rogers (1932), 348 Ill. 322, 326, 180 N.E. 856:
"* * * The court cannot speculate with the rights of a defendant, and say that the jury probably acted upon the competent evidence, only."
But the rule is qualified; it only obtains "Where the evidence is in conflict and there is incompetent and prejudicial testimony in the record * * *." The record contains sufficient competent evidence to establish Colon's guilt beyond a reasonable doubt. Struck's testimony, although damaging ...