APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of murder and attempt (robbery) in violation of sections 9-1 and 8-4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1 and 8-4) and was sentenced to concurrent terms of 20 to 60 years for murder and 1 to 5 years for attempt. On appeal, he contends: (1) that he was not proved guilty beyond a reasonable doubt; (2) that he was denied a fair trial because the trial court erred in admitting certain rebuttal evidence; and (3) that the court erred by basing its denial of defendant's post-trial motion on matters outside the record.
The following pertinent evidence was adduced at trial.
She is the mother of Michael Kulis, who was a student at Loyola University. On May 12, 1972, Michael was alive, but on May 13, 1972, he was dead.
She was a student at Loyola University and a friend of Michael Kulis. She had a date with Michael on the night of May 12, 1972. He left her at her dormitory on the north side of Chicago at 12 or 12:30 in the early morning of May 13, 1972.
He is a Chicago Police Officer. At about 2:20 A.M. on May 13, 1972, he proceeded to the "el" station at 43rd and Calumet in response to a radio call regarding a shooting on a northbound train. In the southern-most car of the two-car northbound train, he found Michael Kulis in a seat between the doors on the east side of the car slumped next to the window with blood on his sleeve and called for an ambulance.
He was a laborer at U.S. Steel. After leaving work at 4 P.M. on May 12, 1972, he went to a friend's house where he stayed until 1:45 A.M. on May 13, 1972. During the 9 or 10 hours he was there, he ate dinner and consumed between a quart and a gallon of wine; but did not become drunk. When he left, he boarded a northbound "el" train at 63rd and Halsted Streets and sat on the east side of the car in the rear facing south. There were 15 or 20 people in the car which was well lighted. A male caucasian wearing a multicolored jacket (Michael Kulis) was sitting in front of him.
When the train stopped at 59th and State, three black teenaged males wearing dark clothing boarded. They were laughing and making noise and they seemed to be "high." Although sleepy because he had been awake since 5:30 A.M. on May 12, he kept his eyes open for the 7 to 10 minutes the three youths were on the train. He saw them take seats in the rear of the train around Kulis one in front of him, one next to him, and the third behind him. Fletcher glanced at the third person, the defendant George Green, as he sat down next to him. After the youths surrounded Kulis, they started going through his pockets as if they were trying to rob him. Fletcher saw Green reach around the seat, but did not actually see whether Green's hand entered Kulis' pocket. Kulis started to get up; but then let them go through his pockets.
As the train approached the 51st Street station, Fletcher left his seat to get off the train. The three black males also got up and stood behind him at the door. Kulis then ran past them toward the front of the car. One of the black men asked: "Shall I pop him?" and another answered: "Yeah." Fletcher did not know which of the people standing behind him made those statements. Although Fletcher did not see a gun, after leaving the car, he heard a gun shot, which, because of his army training, he was able to identify as a .22-caliber weapon. As he walked to the south on the station platform, one man ran past him and the other two ran the other way. All three reunited on the street across from the station and left together.
On the following Monday, Fletcher's wife called the police. They showed Fletcher three photographs, but he was unable to identify anyone. On the following day they showed him nine photographs and he identified a photograph of Green as the person who was sitting next to him. Later that day police asked him to attend a line-up and to ...