APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Clifford Jackson was charged with the offense of murder in an indictment which alleged that, on August 29, 1972, he beat and killed Nina Ozier with an iron pipe. Following a jury verdict of guilty, Jackson was sentenced to a term of not less than 30 nor more than 90 years in the penitentiary.
On appeal, the defendant raises several issues for review. Because the case must be reversed and remanded for a new trial, we deem it necessary to discuss only the following questions:
(1) Whether the admission into evidence of the hearsay statement of the deceased's 4-year-old granddaughter was error;
(2) Whether the court erred in its response to a request by the jury to review the transcript of the trial; and
(3) Whether the giving of a deadlock instruction to the jury by the court was reversible error.
The testimony adduced at trial may be summarized as follows: The first witness called by the State was Mrs. Wanda Haynes, the daughter of the deceased. Mrs. Haynes testified that Nina Ozier had lived with the defendant off and on for 6 or 7 years prior to August 29, 1972, but on that date was living with her. According to the witness, the deceased left the apartment early on the morning of August 29 to go to work, accompanied by her 4-year-old granddaughter, Alicia. Mrs. Haynes testified that the next time she saw her mother was the following morning at the County Morgue and that her mother was dead. Further, Mrs. Haynes stated that the next time she saw her daughter, Alicia, was about 1 A.M. on August 30, 1972, when three police officers brought the child home. The following exchange then took place between the prosecutor and the witness:
"Q. And when you saw your daughter what was the first thing that she said to you?
A. She said that grandmother was dead. That, `Granddaddy Clifford hit her with a big stick and she fell.'"
An objection to this testimony was overruled, and Mrs. Haynes stated that the person her daughter referred to as "Granddaddy Clifford" was the defendant, Clifford Jackson. On cross-examination, Mrs. Haynes stated that she had seen Clifford Jackson and her mother together quite often and that Mr. Jackson's treatment of the deceased was "very cruel." The witness further testified that her mother was about 5 feet 7 inches tall and weighed about 190 pounds.
The State's next witness was Chicago policeman Alex Kaider. The officer testified that, shortly after 9 P.M. on August 29, 1972, he and his partner were sitting in their squad car at the intersection of Warren and Sacramento Streets when they observed Clifford Jackson, Nina Ozier, and a female child standing on the corner. Kaider testified that he observed the defendant slap Mrs. Ozier on the face. When Kaider asked what the problem was, Jackson replied that his wife was intoxicated and he was trying to get her home. Kaider further testified that, in order to quell the disturbance, he and his partner drove the woman and the child to Jackson's car located at 3059 West Washington, where they met Jackson. The officer stated that Mrs. Ozier appeared to be intoxicated. According to Kaider, the woman fell onto the street as Jackson helped her get out of the car. Then, stated the officer, he helped Jackson pick her up and place her in a white automobile which Jackson stated was his. Thereafter, the officer and his partner left the area. Kaider further testified that he did not notice anything unusual about Jackson's appearance or clothing at that time.
Kaider then testified that, shortly after midnight on the same evening, he responded to a radio call regarding a disturbance and fight in an alley near 3059 West Washington. According to Kaider, Jackson was standing in a garage and upon seeing him said, "Hi officer, remember me?" Upon entering the garage, Kaider stated that he saw Mrs. Ozier lying on the floor alongside an abandoned automobile. Kaider testified that Mrs. Ozier's clothing was disheveled and bloodstained, her lips were swollen, and her face was bruised. The officer stated that there were also bloodstains on Jackson's shirt and some scratches about his face.
The State called Charlie Jones as its next witness. Jones testified that he lived in an apartment at 3035 West Washington Street and had known Clifford Jackson and Nina Ozier prior to the date of the incident. Jones testified that, between 9:30 and 10:30 P.M. on August 29, 1972, he went downstairs to a garage in the alley behind his apartment, where he saw Jackson standing by a car with Mrs. Ozier nearby. According to Jones, Jackson dragged Mrs. Ozier into the garage by her legs and asked her about some keys. Jones stated that Jackson then looked around the garage, found a piece of iron, and began to beat Mrs. Ozier with it. Jones identified People's Exhibit No. 5 as the iron pipe used by Jackson to inflict the beating. Jones stated further that Jackson stopped beating the woman from time to time and that he told Jackson two or three times to stop beating her. Jones testified that he did not see a child in the vicinity at that time.
According to Jones, he then left the garage and went upstairs to his apartment, where he remained for about 15 or 30 minutes. The witness stated that Jackson then called upstairs for him to hurry down to the garage, stating that he believed Nina Ozier was dead. Jones stated that he rushed down with a bucket of water, which Jackson used to wipe Mrs. Ozier's face. At this time, according to Jones, he saw a child, who was approximately 4 years old, sitting in Jackson's car. The witness stated that the car was parked in front of the garage and the door was open. Jones further testified that he had seen Jackson beat Nina Ozier 5 or 6 times prior to the incident which led to her death.
On cross-examination, Jones testified that, when he first went downstairs, he saw Mrs. Ozier lying on the right-hand side of Jackson's car and that the defendant then dragged her into the garage by her legs. Jones' testimony before the grand jury on December 20, 1972, was then read into evidence, and he acknowledged that his earlier statement to the grand jury was that Jackson began beating the woman with the iron pipe immediately and did not drag her into the garage by the legs. Jones testified that he did not recall which hand Jackson used to strike Mrs. Ozier, but then demonstrated the manner in which the blows were delivered and concluded that Jackson used both of his hands. Jones further stated that he did not actually see the blows strike Mrs. Ozier's body because he was on the opposite side of the car, but later stated that they were delivered to the lower portion of her body in the rib area. The cross-examination of Jones further revealed that he did not remain in the garage throughout the beating but drove Jackson's car to a nearby liquor store where he purchased a half-pint of whiskey at Jackson's request. He then brought the liquor back to the garage and drank it along with Jackson. Jones stated that he subsequently drove to the liquor store a second time to buy more liquor. Jones' testimony on cross-examination was that the child accompanied him to the liquor store. Further, the witness stated that he did not tell anyone at the liquor store about the beating, that he thought about calling the police but did not, and that it was Jackson who asked that the police be called. On redirect examination, Jones testified that he did not attempt to stop the beating because Jackson and Mrs. Ozier had told him during fights on previous occasions not to interfere.
Chicago policeman William McCorkle, called as a witness for the State, testified that he and his partner arrived on the scene at approximately 11:55 P.M. in response to a call regarding a fight in the alley. He stated that they were flagged down by Clifford Jackson, who told them that he thought a woman was dead in the garage. The officer testified that he went into the garage, saw the decedent, and felt for a pulse. According to McCorkle, he noticed that she was stiff. McCorkle testified that Jackson replied "No" when asked if he knew her or if he knew anything about what had happened. The witness further stated that he recovered a wad of money near the head of the deceased and a large metal object, identified as People's Exhibit No. 5, at the rear of the garage resting against a window. According to McCorkle, Jackson's clothing was in disarray, bloodstains were on his shirt, and some scratches were about his neck.
The State's next witness was Martha Wilson who stated that she was living with Charles Jones on August 29, 1972, and had known Clifford Jackson and Nina Ozier for about 3 months prior to the date of the incident. Ms. Wilson testified that she saw Jackson slap Mrs. Ozier about 2 weeks prior to the date of her death. Regarding the events of August 29, 1972, Ms. Wilson stated that Charles Jones left their apartment and went downstairs between 9:30 and 10:30 P.M. About 30 minutes later, Jones returned to the apartment but did not say anything about what had happened while he was away. The witness testified further that, about 15 or 30 minutes thereafter, Jackson called for Jones, who took some water from the apartment and went downstairs again.
Dr. Eugene Constantinou, a forensic pathologist, testified that he performed a pathological examination on Nina Ozier's body. The doctor stated that his external examination revealed bruises on the neck, face, chest and abdomen. His internal examination revealed blood in the tissues of the forehead, several broken ribs, and a punctured lung. The physician testified that in his opinion, the cause of death was extreme injuries to the head, neck and chest with the effect of fracture of the ribs and laceration of the lung. The witness testified that the injuries to the neck and face were caused by violence and could have resulted from blows by a fist, and that the rib fractures could have ...