APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
The defendant Ronald Doss was convicted of murder in 1967 and was sentenced to death. An appeal from that conviction to the Illinois Supreme Court resulted in an affirmance of the conviction with orders to remand the cause for resentencing. (People v. Doss, 44 Ill.2d 541.) On remand, the defendant was resentenced to a period of 75 to 100 years.
Defendant subsequently sought a writ of habeas corpus in the United States District Court. The petition was dismissed and defendant appealed to the United States Court of Appeals, Seventh Circuit. That court reversed defendant's conviction, ordering the district court to issue the writ. United States ex rel. Doss v. Bensinger (7th cir. 1972), 463 F.2d 576.
Defendant was subsequently retried in Winnebago County. After a jury finding of guilty, defendant was again sentenced to 75 to 100 years' imprisonment.
1. That the trial court committed reversible error, in allowing the prosecution to confront defendant with physical evidence which had been previously ordered suppressed.
2. That the trial court committed reversible error in failing to instruct the jury on its own motion as to the limited purpose for which the above evidence offered for impeachment could be considered.
3. That he was not proved guilty beyond a reasonable doubt.
4. That his sentence is excessive.
An extensive statement of facts appears to be required:
Two unmasked black males entered Marshall's Superette Grocery Store in South Beloit, Illinois, on April 3, 1967, at about 11:45 P.M. They remained in the store about 10 minutes. The men were identified by the owner's wife, Jean Marshall, and a store clerk, Gloria Donath, as Ophem Falconer and Ronald Doss. While in the store, Falconer and Doss robbed the establishment of approximately $700, and during the course of the robbery Falconer shot and killed the owner, Linford Marshall.
Jean Marshall, the widow of the decedent, Linford Marshall, testified that she and her husband owned a grocery store in South Beloit, Illinois. On April 3, 1967, the store was open until 12 midnight. Mr. Marshall, Mrs. Marshall and Miss Gloria Donath were working that night. As they were preparing to close the store at about 11:45 P.M., two men entered. Mr. and Mrs. Marshall were behind the counter. Miss Donath was in the basement. Mrs. Marshall identified Ronald Doss as one of the two men. She identified the defendant four times previous to her testimony. She testified that she was positive that the defendant was one of the perpetrators of the crime. Mrs. Marshall identified the other man as Ophem Falconer.
When the men first entered, they went to the rear of the store. Mrs. Marshall was looking at them at that time, and they were no more than 30 feet away from her. The lighting in the store was very good and she was able to see the faces of both men.
Falconer came up and put some fruit on the counter. He then walked back and spoke to the other man. When Falconer returned to the counter Mrs. Marshall heard her husband say "Just a minute." When she looked over, Falconer had a pistol pointed at Mr. Marshall's chest. Mrs. Marshall then heard a shot and Mr. Marshall fell to the floor. As Falconer prepared to fire again Mrs. Marshall grabbed his arm and began to struggle with him. Doss came behind the counter. Mrs. Marshall then heard another shot, and the next thing that she could recall was waking up at the bottom of the basement stairs. Mrs. Marshall had a head wound that required eight stitches.
Approximately $500 was taken from the cash register; $200 was taken from Mr. Marshall's wallet. People's Exhibit 5 was identified by Mrs. Marshall as the pistol that her husband owned and had had in his pocket on April 3, 1967.
On cross-examination, Mrs. Marshall maintained (1) that she could not recall if defendant was wearing a hat the night of April 3, 1967, (2) that she got a good look at Doss when she was struggling with Falconer, (3) that she did not recall telling an officer that Doss weighed about 130-140 pounds, (4) that on April 4, 1967, she identified both Falconer and Doss in a lineup. Mrs. Marshall did recall telling the officer that the man who did not do the shooting was between 6' and 6'2" tall.
Gloria Donath testified that she had been employed by the Marshalls as a clerk, for about 2 years. On April 3, 1967, just before closing, she was in the basement straightening up the office. At approximately 11:30 P.M., Mr. Marshall came down to the basement to check out some receipts. She testified that when Mr. Marshall went back upstairs, he took his pistol with him.
Upon hearing some scuffling upstairs, she ascended the stairs. When she got to the top of the stairs, Miss Donath observed Mr. Marshall falling. She saw two men. One of the men pointed a gun at her and told her to come out. Miss Donath shut the door. Realizing there was no place to go she opened the door. Mrs. Marshall walked by her and fell down the basement stairs. The man with the pistol then grabbed her, and at his request she opened the cash register. She identified one of the two men as the defendant, Doss. Miss Donath stated that she got a good look at the faces of both men. She said she was as close as 6 feet to Doss. She testified that she identified Doss the next day in a lineup, that she recognized him in another proceeding in this case 5 years previous. "I remember him because he was standing there and when you look at a person and its something like that, it just sticks in your mind."
On cross-examination Miss Donath testified that she observed Doss behind the counter at one point in time and then he moved to the door. She stated that she did not recall receiving a sedative at the hospital and did not recall telling a police officer that Doss was about 6 feet tall and weighed about 130-140 pounds.
John Patton was an acquaintance of both Doss and Falconer. He first saw them on April 3, 1967, around 3:30 P.M., at his home. Besides Doss and Falconer, Speedy Cartwright, Bob Mayfield and Mary Moore were also there.
That afternoon they all went to a gun store in South Beloit. Mayfield purchased shotgun shells. Patton believed that Doss purchased .32-caliber shells. They all went out to a dump in South Beloit and did some target shooting. They were using two guns, a shotgun and either a .32 or .22-caliber pistol. Subsequently they returned to the Patton residence. At approximately 5:30 P.M. Patton heard Doss and Falconer talking about holding up Marshall's Grocery Store. Falconer asked Patton to drive the getaway car, which he refused to do because Mr. Marshall had given him credit. Doss and Falconer said they would forget it. Patton then drove both of them to the home of Alton Ray.
Patton next saw Falconer and Doss at approximately 12:30 A.M., on April 4, 1967. They knocked on the door, seemed out of breath and asked to be driven to Chicago. Patton refused but consented to drive them to the home of Money DuPree. Patton, Patton's wife, Doss and Falconer then drove to that residence. From there they drove to Alton Ray's and then to Rockford.
Patton testified that as they drove to Rockford he and his wife sat up front, Doss and Falconer sat in the rear. On the way to Rockford they talked about the robbery. Falconer said he had shot Mr. Marshall. Patton did not hear Doss say too much in the car, but did testify that Doss looked "shook up." Along the way Doss and Falconer threw their hats out the window. Falconer said he would take the full responsibility.
After dropping off Doss and Falconer in Rockford near the Tuxedo Club, Patton and his wife were stopped by the police as they proceeded home. Patton gave the police a written statement of what occurred.
On cross-examination Patton was questioned with respect to prior testimony given by him concerning (1) whether Doss and Falconer asked Patton to drive them to Rockford, (2) the type of target practice and who participated and (3) whether Doss or Falconer threw a hat or hats out of the window on the way to Rockford.
Mary Jane Patton is the wife of John Patton. Sometime after midnight on April 4, 1967, Doss and Falconer came to their home which was situated about two blocks from Marshall's Grocery Store. Both men were out of breath; they awakened Mr. Patton and asked him to drive them to Chicago. Together they went to Money DePree's home, then to Falconer's sister's home and then to Rockford.
On the way to Rockford, Falconer said he shot a man and Mrs. Patton believed that Doss stated that he had hit a lady. Mrs. Patton testified that when she made her statement to the police she told them that Doss said that he had hit one of the women over the head.
On cross-examination she was questioned as to who threw the hat out of the car. She stated that she heard no conversation between the men at her house on the afternoon of April 3, 1967.
Robert Keith, a police officer for the city of South Beloit, went to the Marshall Grocery Store with Officer Gerald Hanson shortly before midnight on April 3, 1967. The officer observed that Mr. Marshall had been shot twice. He found no pulse or heartbeat.
On cross-examination the officer described Miss Donath as rather hysterical and badly shaken. The officer's report reflected that at the hospital Miss Donath was given a sedative and Mrs. Marshall was treated for a laceration.
Everett Vaugh, a police officer for the village of Rockton, stopped the Patton car at approximately 1:15 A.M. on April 4, 1967, as it was proceeding in the direction of South Beloit. At 4 A.M. that same morning he found a hat on the side of the road, later identified as that worn by Falconer.
On cross-examination the officer stated that when he spoke to Mr. Patton, his stories varied a little bit as to how he met ...