APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, John Francis Potcher, was charged by indictment with two counts of murder, one count of attempt murder and two counts of aggravated battery. Following a jury trial, defendant was found guilty on all counts. On August 14, 1973, the trial court judge, concluding that all the offenses arose from the same conduct, imposed judgment only on the verdict finding defendant guilty of murder and sentenced defendant to a term of imprisonment of not less than 20 nor more than 60 years. Defendant now appeals this conviction.
Defendant makes the following contentions on appeal: (1) that the State failed to prove the identity of the perpetrator of the crimes in question beyond all reasonable doubt; and (2) that the sentence which the defendant received was excessive under the circumstances and should be reduced. Defendant also asks this court to clarify the judgment of the trial court by vacating the judgment on all the counts except murder.
We vacate in part and affirm as modified.
Defendant, John Francis Potcher, was charged with and convicted for the killing of L.C. Malcom and the wounding of Henry Evans in a shooting which occurred on October 2, 1971, in front of the Salt and Pepper Lounge located at 1107 West Leland Street in Chicago, Illinois. The evidence indicated that one shot from a shotgun was fired from an auto double parked in front of the Salt and Pepper Lounge.
The only witnesses who testified at trial were presented by the State. The defendant did not elect to present any witnesses and did not himself testify.
The first witness to testify at trial, Lucille Malcom, wife of the deceased L.C. Malcom, testified that on the night of the shooting, she and her husband had gone to Eddie Quall's Lounge, located at Winthrop and Leland Streets, directly across the street from the Salt and Pepper Lounge. While at Eddie Quall's Lounge at a time when her husband was not with her, the defendant offered to buy her a drink and she refused. The defendant then left Eddie Quall's Lounge and shortly thereafter L.C. Malcom returned. After a brief discussion about the price of drinks, L.C. Malcom left to go across the street to the Salt and Pepper Lounge. Mrs. Malcom, being detained at the front door of the Quall's Lounge, remained. While Mrs. Malcom was detained at the front door of the Quall's Lounge a man ran up to her and she then ran across the street to the Salt and Pepper Lounge. Upon her arrival at the Salt and Pepper Lounge, she found that her husband had been shot and was on his knees bleeding. Mrs. Malcom further testified that when she observed the defendant at the Quall's tavern he was wearing a dirty white t-shirt and blue jeans. She did not remember if the defendant had a beard or a moustache.
The next witness to testify for the State, Henry Evans, testified that he was inside the Salt and Pepper Lounge from approximately 8 P.M. to 10:35 P.M. and that he then went outside to talk to a friend in front of the Lounge. While in front of the Lounge, he saw a car pull up and double park across the street in front of the Salt and Pepper Lounge, approximately 30 or 40 feet from where Evans was standing. Evans testified that he saw one person, a male, in this car, that after observing this person, he turned to talk to his friend and then felt "some shots in [his] arm." The force of the shots turned him around and knocked him to the ground. He then looked up and saw smoke coming from the front window of the driver's side of the car that was double parked. Evans further testified that his car looked blue to him and was a 1963 or 1964 Pontiac. Evans identified this car as the one shown in People's exhibits one and two, photographs of defendant's car. Evans further testified that the man in the car had no beard or moustache and was wearing a white t-shirt with a round neck and short sleeves. In the courtroom, Evans identified the defendant, John Potcher, as the man in the car.
Another witness, John Norton, testified that on the night of the shooting, as he was walking home on Leland Street, he saw a 1963 silver-gray Pontiac pull up on the opposite side of the street from the Salt and Pepper Lounge with a shotgun protruding from the window on the driver's side. Norton stated that he saw one male in the car holding the shotgun. As Norton approached the rear of this Pontiac he heard a shot and ducked behind a parked car. He then went across the street where he had seen a person stagger and fall. As he crossed the street he was parallel with the driver's door of the Pontiac and at this point observed the face of the person in the Pontiac. Norton observed that this person was wearing a white t-shirt with a round neckline, had black hair and had neither a moustache nor a beard. In the courtroom Norton identified this person in the Pontiac as defendant, John Potcher.
The next witness, Arthur Griggs, testified that on the night of the shooting he was seated on the hood of his car parked in front of the Salt and Pepper Lounge; that he saw defendant's automobile depicted in People's exhibits one and two in the Foster-Sheridan parking area sometime prior to the night of October 2, 1971; and that at approximately 11:30 P.M. the night of the shooting he observed that vehicle pull up directly across from the Salt and Pepper Lounge. Griggs stated that the car was occupied by one man, and a shotgun was pointed out the car window towards the tavern. The witness then heard a shot and watched the car proceed toward the parking area at Foster and Sheridan where Griggs had seen the car previously.
Another witness, Miss Linda Berger, stated that she went to retrieve her car parked in a vacant lot in the area of Foster and Sheridan at approximately 11:30-11:45 P.M. She found her car blocked in and returned 5 minutes later. At this point she observed policemen looking at and feeling the engine and hood of a Pontiac. She identified the Pontiac in People's exhibits one and two as being an accurate portrayal of this car. When the police left, a man came over to her and asked what the police were doing with the Pontiac. She identified the defendant as being the man that talked to her. Later that same man came over to Miss Berger again and asked her if the police had found any guns. Miss Berger told him they had not and at this point, according to Miss Berger's testimony, the defendant then told her "I think I just shot two Negroes." Miss Berger further stated that defendant told her that he had just been robbed of $15, said that he "doesn't take that * * * from People," and then asked her if she would aid him in disposing of some guns, pointing toward a truck. When Miss Berger refused to help, the defendant left for his car. At this point the police arrested the defendant, whereupon Miss Berger told them of the admission that the defendant had made. Miss Berger also stated that the defendant was wearing a dirty, white t-shirt and dark slacks and that, while not clean shaven, he did not have a beard or moustache.
Officer David Sandlund of the Chicago Police Department testified that he went to the parking lot area of Foster and Sheridan looking for the Pontiac car identified by the witnesses at the Salt and Pepper Lounge and that upon arrival at the parking lot he found the defendant under the hood of the car and placed him under arrest. Officer Sandlund also stated that he recovered a shotgun and Winchester rifle in the lot about 100 feet from defendant's car and that defendant admitted that the weapons were his. Contrary to Linda Berger's testimony, Officer Sandlund stated that at the time of his arrest, the defendant had a moustache.
Officer Schwind who also participated in defendant's arrest and recovery of the weapons testified that the defendant wore a dirty, white t-shirt at the time of his arrest and that the defendant appeared substantially the same in court as at the time of his arrest.
The defendant was questioned at the Foster Avenue Police Station by Chicago Police Investigator Richard Kent Morask. Morask testified that the defendant had a one day's growth of whiskers, but that he was not wearing a moustache. Morask further testified that after being advised of his rights, the defendant told him he owned the guns recovered in the Foster-Sheridan Park area. The defendant further admitted to Officer Morask that he saw a girl in the Foster-Sheridan parking area and that he had asked her why the police were in the area. The defendant also stated to Morask that he had been robbed earlier in the evening by three male Negroes and when Morask asked where this robbery occurred the defendant answered that it took place across the street from the ...