APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 15, 1975.
On the morning of 19 June 1970 at about 1:25 A.M., Chicago Police Officer Kenneth Kaner was shot to death while sitting in his police car at the corner of 74th Street (7400 south) and Union Avenue (700 west). A few minutes later, a car in which Bradley Greene, Bruce Sharp, Dwight Cavin, William Redwine, and Jerome Amos were riding, was stopped by police officers, patrolling in an unmarked car, between 71st and 72nd Streets on Union Avenue headed north. The reason for the stop was that the car had neither license plates nor a tail reflector. A routine inspection of the car, prompted by the fact that one of the officers saw an open quart of beer on the floor of the auto, disclosed three weapons, including one which turned out to be Officer Kaner's service revolver.
Following the arrests of the five individuals, both Sharp and Cavin gave statements in which they admitted their parts in the shooting. Neither the statement by Sharp nor the three statements given by Cavin specifically implicated Greene.
The defendant Greene and the other four persons were indicted in three counts for the offense of murder: *fn1 one count charging "* * * in that they, intentionally and knowingly shot and killed Officer Kenneth Kaner with a shotgun without lawful justification"; the second count charging that "* * * they, shot and killed Officer Kenneth Kaner with a shotgun, knowing that such shooting with a shotgun created a strong probability of death or great bodily harm to said Officer Kenneth Kaner without lawful justification"; the third count charging that "* * * they, while committing a forcible felony, to wit: armed robbery shot and killed Officer Kenneth Kaner." They were also indicted on one count for armed robbery *fn2 and on one count for the unlawful use of weapons. *fn3
The trials of Sharp and Cavin were severed from the trials of Greene, Redwine, *fn4 and Amos. The latter three co-defendants waived a jury trial.
At the bench trial, the first witness called by the State was Willis Bulliner who resided at 7358 S. Union (the northwest corner of Union and 74th Street). He testified that at about 1:25 or 1:30 A.M. on 19 June 1970, he heard two shots, one a loud blast, the other a sharp report. Right after the shots the witness heard a car door slam shut and then heard someone running. Looking out his window, the witness saw a police car, and then told his wife to call the police. The car had its interior lights on, and the witness saw the officer lying in the car. The witness went to the car and saw a large hole in the door window and the officer lying on the front seat, driver's side, on the side of his face, dead.
Photographic evidence revealed the police car to be located along the curb relatively close to and directly below the apartment of witness Bulliner. The parties stipulated a telephone message "Police Officer shot, 74th and Union" was received at 1:29 A.M. on 19 June 1970 at the communication center of the Chicago Police Department.
The next witness to testify was Chicago Police Officer Edward Brown. At the time of the incident, the witness was with his partner, Carl Malek, on patrol proceeding in an unmarked squad car eastbound on 72nd Street in the vicinity of South Halsted Street (800 west). At approximately 1:28 A.M., they saw a Chevy Corvair with no license plates or tail reflectors. The Corvair was proceeding east on 72nd Street, just east of Halsted Street, *fn5 and then turned left on Union heading north. The officer's partner turned on the oscillating headlights. Three occupants in the rear of the Corvair turned around and looked back at the squad car. The car stopped, moved forward for a short distance, and then came to a complete stop in the middle of the block.
Brown testified that there were five individuals in the car. After stopping, the front-seat passenger and the driver of the car got out of the car simultaneously, each on his respective side of the car. The front-seat passenger, Redwine, put his hands up in the air. The driver, Bradley Greene, did nothing out of the ordinary. Greene just got out of the car and looked back at the squad car. Neither the witness nor his partner had their guns drawn at this time. Greene was instructed to go to the rear of the car. A license-applied-for sticker indicated that the car was registered to William Redwine. As the witness was walking to the rear of the car, he looked in the window and saw an open quart of beer lying on the floor. The bottle was three-quarters full and was on the front passenger's side of the car.
As the witness opened the door to get the bottle of beer, his attention was drawn to the back seat where he saw the butt of a gun sticking up between the feet of one of the defendants, Dwight Cavin. The witness grabbed the gun out of the back of the car. The gun was a .38-caliber Colt (later determined to be Officer Kaner's service revolver). The witness took it for granted that the gun was loaded and held it on the three people in the back seat of the car and told them to step out of the car. Bruce Sharp was sitting behind the driver's seat, Dwight Cavin was in the middle, and Jerome Amos was sitting on the passenger side in the rear.
After all of the individuals were out of the car, the witness pulled the back of the driver's seat forward and looked down in the bottom of the car where he saw a couple of shotgun shells on the floor. There were shotgun shells on the back seat also. In addition, the witness observed the stock of a sawed-off shotgun sticking out 2 or 3 inches from under the front passenger's seat. The witness proceeded to unload the weapon. There was one spent cartridge in it and one live round. The officer smelled the spent cartridge; it had a fresh burnt-powder smell.
Shortly thereafter, another police car, manned by Officer Frederick Cowan, arrived on the scene from the north. Prior to this, the witness had not been aware of the shooting of Officer Kaner. The witness further testified that Officer Cowan searched the five individuals, and that Officer Malek searched the car further and found a .38-caliber Smith and Wesson revolver underneath the rear of the driver's seat. Brown described the car as a two-door, '63 Corvair with engine in the rear.
The testimony of Officer Brown's partner, Officer Carl Malek, was substantially similar to that of Officer Brown except that Malek testified to having observed Greene, when the officers first observed the Corvair eastbound on 72nd Street, get out of the passenger side of the vehicle, walk around the back of the vehicle, and get into the driver's side. In addition, Malek testified that he found shotgun shells in the glove compartment of the Corvair.
The testimony of Officer Cowan was consistent with that of Officers Brown and Malek as to the search of the vehicle and his search of the five individuals following his arrival on the scene. The witness found shotgun shells on defendant Sharp.
Thereafter, various lab technicians testified, or their testimony was stipulated to, that Officer Kaner was shot once by lead pellets fired from a shotgun, and once by a bullet from a .38-caliber Smith and Wesson; that the cause of death was a shotgun blast to the head; and that a fingerprint of defendant Amos appeared on the trigger of Officer Kaner's service revolver.
At this point the State rested its case. Defendants Greene and Redwine rested. Amos, however, indicated he was going to proceed with his defense. Greene's attorney repeatedly disclaimed anything that followed the resting of Greene's case, contending that as far as Greene was concerned, the trial was over. The trial court agreed that the evidence was closed as to Greene. Redwine, however, later withdrew his motion to rest.
On 15 September 1970, Greene and Redwine were found guilty as charged, while Amos was found not guilty. On 20 November 1970, Greene filed a motion for a new trial and, in the alternative, a motion that the court reconsider the evidence. Both alternative motions were denied. Greene then called seven mitigation witnesses who detailed his academic career and his success as a teacher, and who expressed their support for him.
On 16 February 1971, Greene filed a renewed motion for reconsideration of the evidence, and, in the alternative, a motion for a new trial based on newly discovered evidence. The court treated these alternative motions as a motion to vacate the finding of guilty and to reopen the evidence and allowed the motion. The additional evidence was the testimony of Sharp and that of Greene in his own behalf.
Bruce Sharp testified on behalf of Green that on 18 June 1970 he had played basketball from about 6 P.M. until dark with Greene, Redwine, Cavin, and Amos. While they were playing, the witness was drinking alcohol. After the game, the witness, Greene, Redwine, Cavin, and Amos went to 95th Street in Redwine's car. Redwine was driving; Greene was in the front passenger seat; and the witness was in the back seat behind Greene. The witness did not remember where Amos and Cavin were. The witness was drinking an alcoholic beverage and smoking marijuana.
When they arrived at a housing project on 95th Street, the witness and Cavin left the car. The witness walked a short distance with Cavin and then Cavin continued on. When Cavin returned, he had a sawed-off shotgun with him. The witness took the shotgun and put it under his jacket. When Sharp and Cavin got back to the car, Redwine and Greene were still in the front seat. Redwine was still in the driver's seat. The witness had no conversation in the presence of Greene about the sawed-off shotgun. Furthermore, prior to getting out of the car, he had not had a conversation in the presence of Greene about the gun.
From 95th Street they were going to take Amos home at 64th and Lowe (632 west). Bradley Greene left the car around 73rd Street for a short time to relieve himself. While Greene was out of the car, a policeman came up to the car. Greene came back after the policeman had left. They continued on with Redwine still driving. The witness (Sharp) then saw a police car, told Redwine to stop, and got out of the car. Redwine and Cavin also got out of the car. They went to the squad car and shot the policeman. When the witness and Redwine returned to the Corvair, Greene was driving.
When the witness told Redwine to stop the car, the witness said nothing to Redwine, Greene, Amos or Cavin about going to kill a police officer. Neither did he say anything in the presence of Greene about going to take the policeman's gun away from him. When he returned to the car, he said nothing to Amos, Greene, Cavin, or Redwine about shooting a police officer. He said nothing about having stolen a policeman's gun. To his knowledge, Greene did not hear a single word about shooting a police officer or taking a police officer's gun.
On cross-examination, the witness admitted having given a statement to an assistant State's attorney. One of the ...