APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Smith, was indicted for the offense of murder. After a trial by jury at which he was found guilty of the crime, defendant was sentenced by the circuit court of Cook County to 40 to 100 years' imprisonment. Defendant argues on appeal that the State failed to prove his guilt beyond a reasonable doubt, the court erred in failing to suppress the improper identification testimony, the court erred in allowing the State to exceed the proper scope of rebuttal testimony, and that defendant was denied due process of law because of the application of the unconstitutional notice of alibi defense statute.
The record reveals the following pertinent facts. At about 1:30 a.m. on June 9, 1971, Clarence Stovall was murdered. Two bullets struck his body at that time; the bullet fired through his heart was the cause of death. The victim's next door neighbor heard loud noises through the wall and looked out his door to see two men leaving Stovall's apartment and walk down the hallway. The neighbor later identified defendant, Charles Smith, as one of the two men he saw, and so testified at trial.
The State's witnesses testified that Stovall was a leader of a street gang which had entered into a truce with a rival organization. Smith entered the neighborhood and attempted to usurp Stovall's position by fomenting hatred for the rival gang. At about 7:30 on the evening of June 7, Smith told Stovall to kill three members of the rival gang, but Stovall refused. Smith then pulled a pistol, pointed it at Stovall, and pulled the trigger. The pistol did not go off. Smith struck Stovall in the head with the pistol, and then, according to the prosecution witnesses, said, "Don't forget what I said. I will be back. Burn three or else I'll burn you tomorrow when I come around." Stovall did not murder any rival gang members. Thirty hours after the threat, Stovall was dead at the hand of a person identified as Charles Smith.
Defendant testified in his own behalf that he has never owned or carried a gun, and that he was not a gang member at the time of the incident. Defendant also testified that Stovall was his friend and that Stovall was afraid of the rival gang because of prior unsuccessful assassination attempts. Defendant presented an alibi defense.
The first contention on appeal is that the State's circumstantial evidence was insufficient to prove defendant guilty beyond a reasonable doubt. Defendant points especially to inconsistencies in the testimony of the next-door neighbor and the three men who testified concerning the June 7 altercation between Smith and Stovall. In his favor, defendant argues that his defense of alibi was well proven. We shall briefly examine the testimony relevant to defendant's allegations.
The next door neighbor called the police after he heard shots in Stovall's apartment and went to see what the trouble was. He told the responding officers that he saw two men leave the apartment, but that he did not see the face of either man. Later, however, the neighbor said he saw the second man's face twice, the first time as the man closed Stovall's door and the second time when the man turned to look at him. Defendant cites this inconsistency as being indicative of the neighbor's uncertainty as to defendant's identity. Defendant also points out that the description given by the neighbor was not very accurate. The neighbor described the second man as being between 5'8" and 5'10", whereas defendant was 6'1"". Also, the witness did not mention that the man he saw had a mustache; defendant had a mustache at the time of his arrest.
The other part of the State's case was to prove the prior hostility between the victim and defendant. As we stated before, the State's witnesses testified that they saw defendant strike and threaten the victim on the evening of June 7. Defendant points to inconsistencies in the testimony of the State's three witnesses to the encounter. Two of the three were members of the rival gang, and the third was a member of the gang promoted by defendant and the victim. Two testified that the meeting took place at the corner of 68th and Normal, the third said it was at 69th and Normal, a block away. Two thought the incident took place at about 6 p.m., and the third man said it happened at 7:30 p.m. Two stated that defendant wore either a purple or maroon shirt and pants, but the third remembered that defendant wore a gray jumpsuit. Defendant contends that the State's witnesses were confused, and often contradicted their own statements as well as the testimony of other witnesses.
In addition to the evidence already mentioned, the next door neighbor said that the second man leaving Stovall's apartment was wearing an "orange-pinkish suit" and had wavy hair. In fact, defendant had wavy hair. The State produced three witnesses who testified that on the evening preceding the murder, they saw defendant wearing either an orange or red walking suit similar to that described by the next door neighbor. The suit in question was not recovered. Defendant's family testified that they had never known him to have such a suit.
Defendant introduced evidence at trial to support his defense alibi. The substance of the defense is that from about 10 p.m. until 5 a.m. he was at his girl friend's apartment attending a party with his girl friend, his sister, and his brother-in-law. All four testified as to their presence at the party.
Defendant's argument is that he was convicted on circumstantial evidence which was insufficient to support a conviction because it was replete with incredible and uncertain identification testimony by the next-door neighbor, and inconsistent testimony from the State's witnesses to the confrontation between defendant and victim. At the same time, defendant proved with three witnesses that he was elsewhere at the time Clarence Stovall met his untimely end.
• 1 It is the jury's function to determine the credibility of the witnesses and the weight to be given their testimony, and the jury's judgment should not be set aside unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to justify a reasonable doubt of defendant's guilt. (People v. Smith (1973), 12 Ill. App.3d 507, 299 N.E.2d 492.) The jury heard the evidence in the case and observed the witnesses. The jury found defendant guilty. A court has no obligation "to believe alibi testimony over positive identification of an accused, even though given by a greater number of witnesses. [Citation.] The trier of fact here was in a superior position to observe the demeanor of these witnesses during examination and to consider their obviously strong interest in exonerating the defendant." (People v. Jackson (1973), 54 Ill.2d 143, 149.) We have reviewed the evidence and feel that it was sufficient to prove defendant guilty beyond a reasonable doubt. The jury's determination of guilt will not be set aside.
Defendant next contends that the trial court erred in failing to suppress the improper identification testimony. Prior to trial, defendant moved to suppress the out-of-court identification of defendant made by the victim's next door neighbor. A hearing was held on the motion. Briefly summarized, the evidence showed that defendant was identified by the next door neighbor in a room at a police station which contained between one and three male non-police, sitting in an informal setting. The neighbor testified that a police officer asked him whether he could identify a suspect, ushering him into a room. Before the policeman could finish asking the neighbor whether he had ever seen anyone in the room, the neighbor identified defendant as having been the man he saw outside the victim's apartment. The defendant's witnesses testified that the neighbor was unable to identify defendant on his first look in the room, but was able to identify defendant after a policeman told the neighbor that defendant had already escaped conviction for murdering a boy, and that the police did not want defendant to walk the streets ...