APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Robert Jackson was found guilty of murder and sentenced to serve a term of 14 to 25 years in the penitentiary. Defendant appeals, contending that (1) the trial court erred in admitting into evidence a statement of the deceased that defendant shot him; (2) the trial court erred in allowing officers to testify that they advised him of his rights and had a conversation with him; (3) he was not proved guilty beyond a reasonable doubt; and (4) the instructions to the jury were not adequate.
The indictment charged defendant with three counts of murder in that he shot and killed James Owens with a gun (1) intentionally and knowingly; (2) knowing that such shooting created a strong probability of death or great bodily harm; and (3) while committing a forcible felony, to wit, armed robbery (Ill. Rev. Stat. 1969, ch. 38, pars. 9-1, 9-1(a-2), and 9-1(a-3)).
At trial, Michael Blake testified for the State that he and Owens, the deceased, were walking home in the early morning hours of August 3, 1970, after drinking earlier at a couple of bars. They approached the intersection of 51st Street and Cottage Grove Avenue, in Chicago, when the following took place. Two men came from the rear; one of them, the defendant, asked Blake and Owens where they were going. Receiving no reply, defendant asked if they could walk with them and Owens said, "No, you may not." Defendant then pulled out a gun and announced that it was a stickup. The other man was not armed. Complying with defendant's demand, Blake threw down his wallet. Owens told them they could have anything they wanted, but he pulled out a gun from the book bag he was carrying. Blake saw defendant fire. Owens told him to run and he ran across 51st Street, then west to the bar from which they had come. He told the bartender to call the police, then he immediately returned to the scene of the shooting where he found Owens lying face up in the street with a stomach wound. Owens said, "He shot me."
The witness further testified that he saw two men helping another around the corner of a building and that the third man appeared to be limping. When defendant was pointing the gun he was facing Blake and the lighting was good; he could see that defendant was wearing dark clothing and had some sort of deformity of his teeth. On cross-examination he again testified that the armed assailant was wearing dark clothing but that his attention at that time was focused on the gun and his face. Owens and the witness were approximately 4 feet from the assailant when the latter fired the first shot. Blake testified that he identified defendant at the coroner's inquest as the armed assailant, and stated that "there were no other black males sitting with Mr. Jackson at the inquest."
The State called two police officers who testified that they were present at the hospital where defendant was admitted for treatment of a bullet wound in the leg. Officer Bobko testified that he responded to a police broadcast and had seen defendant at Billings Hospital; that defendant was lying in the emergency room, and the clothing on the floor around him was "dark and almost matching."
Officer Jannotta, whose testimony is hereafter more fully detailed, stated that he also found the defendant at Billings Hospital.
Troy Harris testified for the defense that on the evening in question he heard some shooting as he was coming out of a bar. After the shooting stopped he heard defendant call his name, and defendant told him he had been shot. Harris carried defendant across the street and flagged down a friend who drove them to the hospital. He further testified that at the time defendant was wearing light-grey pants and a matching shirt.
Defendant's mother testified that her son was wearing light-grey pants on the evening of the shooting. The pants were marked for identification but were not introduced into evidence. On cross-examination she testified that the pants she picked up from the hospital had been worn by the defendant and his brothers.
Defendant testified on his own behalf that as he was returning home from listening to a group of friends sing he saw four men standing on the sidewalk. As he passed he heard them arguing, then heard gun shots. He ducked to the ground and was shot in the kneecap. He saw Blake running west on 51st Street after the shooting. Harris picked him up, rushed across the street and stopped a friend, Carol, who drove them to the hospital. Defendant further testified that he was wearing light-grey khaki pants, referring to the trousers which were marked for identification. He stated that he was given a shot at the hospital; he did not remember talking to a police officer nor seeing Officers Bobko or Jannotta at Billings Hospital; and he denied possession of a gun and participation in a robbery. He testified as did his mother that he was wearing a short natural haircut on the evening in question. On cross-examination defendant denied talking to Officer Jannotta at the hospital. The prosecutor then read from the transcript of a previous bond hearing in which defendant admitted talking to a policeman concerning the incident. The prosecutor asked defendant, "Do you remember telling Officer Jannotta that you weren't even at 51st Street and Cottage Grove?" Defendant denied the statement and defense counsel objected to the question and requested that it be stricken and the jury be instructed to disregard it.
At this point in the proceedings the court admonished the prosecutor that he could establish impeachment by having Officer Jannotta state that he talked to defendant but not the substance of the conversation. The trial court struck the question and answer and instructed the jury to disregard them. Defendant then stated a policeman asked him something at Cook County Hospital and that he did not remember testifying at the bond hearing; that he had talked to a lot of policemen.
On redirect examination defendant stated that he did not remember what the policemen said to him or what he said to them. Defense counsel then asked defendant if he remembered denying [apparently at the bond hearing, although the record is not clear as to this point] being at 51st Street and Cottage Grove, to which defendant answered "No". The instructions given to the jury included the following Illinois Pattern Instructions Criminal, which are relevant to defendant's argument on appeal:
"A person commits the crime of murder who kills an individual if, in performing the ...