Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. Kenneth E. Wilson, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Earl Hawkins was found guilty of murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1) and aggravated battery (Ill. Rev. Stat. 1969, ch. 38, par. 12-4) after a jury trial in the circuit court of Cook County and was sentenced to serve not less than 14 nor more than 15 years on the murder conviction and not less than 1 nor more than 3 years on the conviction for aggravated battery. The appellate court affirmed (18 Ill. App.3d 1005), and we granted the defendant's petition for leave to appeal.
On the evening of July 5, 1970, a crowd of approximately 75 to 100 people gathered to watch a building on fire which was located in the 4100 block of South Berkeley Avenue in Chicago. At about 11 p.m., while watching the fire, Elmer Freeman was shot and killed, and Michael Mallory was shot and wounded.
Earl Hawkins, the defendant here, and Kenneth Birdsong were indicted for the murder of Freeman and for aggravated battery against Mallory. Although they were tried in the same proceeding, Hawkins was tried by a jury and Birdsong received a bench trial after waiving his right to a jury.
Terry Lee, a witness for the People, testified that on July 5, 1970, at about 11 p.m., he, Michael Mallory, Elmer Freeman, and James Sutton were standing with a group of about 20 Disciples (a youth gang) that had gathered to watch a fire that had broken out in the 4100 block of South Berkeley Avenue. Their group, he said, was standing on Berkeley at 41st Place facing north. About 20 members of the Black P. Stone Rangers (a rival youth gang) had also gathered at the scene of the fire and were standing a short distance from them on Berkeley facing south at 41st Place. When Lee arrived at the scene of the fire, Kenneth Birdsong, a member of the Rangers, and Willie Smith, a member of the Disciples, were arguing. As they argued, a leader from each gang walked to a position in front of his group and began to talk with each other. Lee said he saw a member of the Rangers hand Birdsong a handgun as the group leaders were talking. Hawkins was standing next to Birdsong when the gun was passed, he said. When the leaders finished their discussion, the rival gangs began shouting at each other. At that point, the witness testified, he saw Birdsong give the handgun to Hawkins and saw Hawkins fire one shot into the crowd of Disciples. Hawkins then gave the handgun back to Birdsong and, the witness said, he saw Birdsong fire the handgun twice toward the Disciples. He heard Elmer Freeman, who was standing next to him before the shooting, scream that he had been hit after the second shot was fired.
Michael Mallory, who was 13 years old at the time of the trial, testified that he was watching a building burning in the 4100 block of South Berkeley Avenue at approximately 11 p.m. on July 5, 1970. He said he did not see who fired the shot that struck him that evening, but said he saw Earl Hawkins at the fire before the shooting occurred. He said that he had known the defendant for approximately one year before the incident, but said that he was "not friendly" with the defendant.
Kenneth Jordan, another prosecution witness, testified that he was standing with a group of about 25 Disciples gathered to watch the fire on July 5, 1970. He said that he, Terry Lee, James Sutton, and Elmer Freeman were members of the Disciples gang and were present at the fire. He saw the defendant fire the handgun at the group of Disciples and than hand it to Birdsong, who fired the handgun twice in their direction. He said he was standing a few feet from Freeman when the youth was killed.
The witness testified that he was serving three years on probation for a crime which was not described.
James Sutton testified that he was standing near Terry Lee, Kenneth Jordan, and Elmer Freeman at the fire when he heard a gunshot. He immediately turned and saw Birdsong fire two more shots into the group of Disciples. After the third shot he heard Elmer Freeman yell that he had been hit. He said that he saw Hawkins at the scene of the fire but did not see him fire a weapon.
The defendant's father, Orange Hawkins, his mother, Earline Hawkins, and his brother, Charles Hawkins, all testified that the defendant had been at home at the time the shootings took place.
Orange Hawkins testified that the defendant came home at about 9:30 p.m. on July 5, 1970. He ate dinner and watched television before he went to bed at about 10 o'clock. The witness said he saw a fire from his back porch at approximately 11:30 p.m. and went into the defendant's bedroom and awakened him and Charles, his other son, and told them of the fire. He said that he, his wife, Earl, Charles, and the witness' sister, Roxee Shenial, watched the fire until they retired at midnight.
Charles Hawkins, the defendant's brother, testified that he went to sleep at 9 p.m. on the evening of July 5, 1970. At 9:30 p.m. he said his aunt, Roxee Shenial, awakened him and asked him to watch a fire from the back porch. Charles walked into the kitchen where he saw his brother was eating. He said that he watched the fire for five minutes and returned to bed. Earl was still watching the fire he said when he went back to bed.
Earline Hawkins testified that her son, Earl, came home between 9 p.m. and 9:30 p.m. on July 5, 1970. She said that she, her husband, her sister-in-law, Roxee Shenial and her sons, Charles and Earl, talked from the time the defendant came home until he went to bed. She said that she, her husband, Roxee, the two daughters of the witness and Charles began watching a fire from her back porch at approximately 10:30 p.m. She said that her husband did awaken her son, the defendant, that night but she said that the defendant did not leave his room to watch the fire.
The principal contention of the defendant is that the prosecution improperly introduced irrelevant and prejudicial matters during the cross-examination. This occurred, the defendant says, when the prosecutor on the cross-examination of Mrs. Hawkins, the defendant's mother, had suggested that four other witnesses who were members of the Rangers had ...