APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
During the early morning hours of August 2, 1972, a Chicago police officer, responding to a radio call concerning a battery victim, entered an apartment on the south side of the city. He found a dead man lying in a bed. It was apparent that the cause of death was traumatic injury to the skull and face. In due course, William Tennant (defendant) was indicted for the murder of the deceased. After trial by jury, defendant was found guilty and sentenced to a term of 15 to 30 years. He has appealed to this court.
Defendant has raised three contentions: he was denied due process when the trial court permitted a transcript of the testimony of a deceased witness (Willa Watson) given at a preliminary hearing to be read in evidence; the evidence was not sufficient to prove him guilty beyond a reasonable doubt and the trial court erroneously refused an instruction tendered by defendant pertaining to an admission and instead gave an instruction tendered by the State regarding a confession.
The People contend that the evidence given by Willa Watson at the preliminary hearing was properly admitted; defendant was proved guilty beyond a reasonable doubt and the jury was properly instructed with reference to the statements of guilt made by defendant.
When the officer originally came to the apartment, there was no response to his knock. He left and shortly thereafter received a second call concerning the same addess. He was then admitted to the third floor apartment by Herbert Cross, a blind person. The apartment, originally six rooms, has been modified for use as four sleeping rooms with a common kitchen and bathroom. The front entrance door may be locked but not the rear door. Also, there are no functioning locks on the doors of any of the individual rooms.
It appears from the testimony of the officer that he found the body in one of the rear bedrooms which was ordinarily occupied by defendant. The deceased was lying face up in the middle of the bed. There was blood spattered onto the bed and on the wall. There were traumatic injuries to the head and face. The defendant was then absent. He came in while the officer was speaking to a lady named Willa Watson. She occupied two rooms in the front part of the establishment with Harry Housely. A man named Peter Reeves occupied a room located to the rear.
After the officer had entered the apartment, he awakened Willa Watson and Harry Housely. When Miss Watson appeared she was dressed in a nightgown and her head was bandaged. She identified the deceased.
The officer had a conversation with defendant. When defendant approached, the officer noted some red spots on his clothing and on his shirt near the collar and close to the shoulder. He also saw a red substance near the fly and on the right leg of defendant's trousers. Upon examination of the bathroom, the policeman found a red substance which he described as being a "blood-type" in the basin. There was also a dress soaking in the bathtub in water which had "a reddish tint." Water similarly tinted was found in a small bucket in the bathtub. Willa Watson told him that she had received a head wound earlier in the week and that her dress was stained with blood. After receiving Miranda warnings, defendant stated that he had been at his sister's apartment. When he returned, he got into his bed and laid down next to the deceased. He then nudged the deceased so that he could request some money for the purchase of wine. Receiving no response, he then looked closely at deceased and observed his condition. He then got out of bed and called the police. He said that he had made two calls to the police station. At the officer's request he removed and surrendered his clothes.
The officer then spoke with Peter Reeves who lived in the same flat. In his room the officer noted a piece of metal some 3 feet long leaning against the door of the refrigerator. He gave this piece of metal to the technicians. They dusted it but told him that they could find no fingerprints, although there was a reddish stain on the end portion of the bar. The officer also noted a few drops of a "red substance" on the floor some 3 to 5 feet inside the room occupied by Willa Watson.
Over objection by defendant, the trial court permitted the reading to the jury of a transcript of the testimony given by Willa Watson at a preliminary hearing against defendant, held August 17, 1972. The parties stipulated that Willa Watson died in Chicago on January 3, 1973, before commencement of trial.
She had testified for the State and she was cross-examined by counsel for defendant. Her testimony was that she had known defendant for 6 years but knew the deceased for 6 months. She, defendant and deceased had spent the evening and early morning hours together drinking on the back porch of the apartment. The deceased left the others about 2:30 a.m. At about 3 o'clock she went to bed. At that time she saw the deceased sleeping in defendant's bed. She was awakened when defendant knocked on her door and asked her if he could come in to get some clothes which she kept for him. She could not estimate when that occurred. Defendant came in, got his things and left, carrying the metal bar. She then heard defendant say "get out of my bed * * *" with the addition of an obscenity.
Defendant later reentered her room and threw "the iron pipe" down on her bed or by her bed. He later came back and got the piece of iron once more. It was hers and she had used it to hold the broken door of her refrigerator closed. It was found by the police in the room of Peter Reeves. At the request of the police, she identified the piece of iron as being hers. She stated that it was a part of an iron bed rail, cut to a length of about 2 feet. The cross-examination of this witness by counsel for defendant took approximately 12 pages of the record, while the direct examination took 9 pages. No substantial differences of any kind were developed by the cross-examination.
Two homicide investigators of the police department also came to the apartment that morning. After examination of the scene, they returned to the police station where they took statements from Willa Watson and Peter Reeves. These statements were then typed and signed by the witnesses. That same morning they interviewed defendant. One of the investigators gave defendant legal warnings which defendant said that he understood. The investigator further testified that defendant then told him he had not been home all night but he had been at his sister's home. Defendant then made a statement to the investigator quite similar to that which he had told the first police officer concerning his alleged discovery of the death of deceased.
At defendant's request, he then left the room unaccompanied to get some water. When he returned, the officer told him that he knew from his investigation that defendant had been in the apartment all evening drinking with the other tenants. After further talk, defendant stated that he would tell the truth and he said that he beat the deceased with the angle iron and killed him. This entire conversation and questioning took approximately 10 or 15 minutes. Aside from deleted expletives, the defendant told the officer that he killed the deceased because he was "picking on him." The investigator asked defendant if he would repeat that statement to an Assistant State's Attorney which defendant said he would.
Marshall Weinberg, then an Assistant State's Attorney, was in private practice when he testified. He testified that he introduced himself to defendant and asked him if the police had advised him of his constitutional rights. After receiving an affirmative answer, the witness again advised defendant of his rights. He asked defendant if he was the one who had struck and killed the deceased and defendant "indicated that he had done it." He asked defendant why he had killed the man. Defendant responded that the deceased "had taken my food stamps and other things." The witness testified that apparently defendant and deceased were roommates. Defendant told him in effect that he had occupied the room and that the deceased was an interloper.
In further conversation, the defendant stated that he had struck the deceased with an iron bar. Mr. Weinberg then suggested to defendant that a court reporter be called so that he could repeat his statement and have them written. Defendant then said that before he would sign anything he wished to talk to an attorney. The witness further testified without objection that he then went to his office and made a written memorandum of the statement given him by defendant. Two days later this memorandum was typed by a secretary and signed by the witness. It was exactly the same as his handwritten version. The memorandum was marked as an exhibit. It was the subject of cross-examination by counsel for defendant. The court sustained a defense objection and rejected this exhibit. Additional cross-examination of this witness by counsel for defendant will receive later consideration.
The parties stipulated that if a certain pathologist for the coroner were called he would testify that death of the victim was caused by a skull fracture which resulted in brain laceration.
Evidence for the defense showed that the police laboratory had found that blood of the deceased was type "O". The same type of blood was present on the bed where the body was found and near the collar of defendant's shirt. The front of the shirt and defendant's trousers both showed blood types of "O" and "A" so that these tests were not conclusive. The metal bar above described also had blood types "A" and "O" but predominantly "A" so that it could not be classified as type "O".
Defendant's niece, Barbara Hunter, some 17 years old, testified that, commencing midnight of August 1, 1972, defendant visited the home where she lived with her aunt. She stated that defendant had spoken briefly to her and her aunt but had fallen asleep because he had been drinking. When defendant left, at about 4 a.m., the witness was watching a picture on television. She watched Channel 9 and continued her viewing until 6 or 6:30 a.m. The parties stipulated that, if called, personnel from this station would testify that the station "signed off" that morning at 3:10 a.m. plus 30 seconds. The aunt of this witness was in the hospital at the time of trial.
Defendant testified that the angle iron had been used on Willa Watson's refrigerator. He had helped her close the refrigerator with it before noon on August 1. He did not see it again until it was found in the room of Peter Reeves. Defendant testified that he had worked as a welder but eye surgery had terminated his employment. The parties stipulated that an examination of defendant's eyes in August of 1972 found that he had glaucoma and the lens of his left eye was gone. The sight of this eye was poor and even with glasses the vision of his right eye was 20/60. On August 2, his glasses had been broken and they were being repaired.
Defendant further testified that he had helped the janitor in the building until about 8 o'clock on the evening of August 1. Some three hours later he walked to his sister's home and spoke to her and his niece. He dozed off and awakened about 4 a.m., when he left. On the way home he passed a clock near a window which showed 4:15 a.m. At home he lay down in his bed next to deceased. Deceased had stayed with him before as they were friends. He could not see in his room because of the absence of his glasses and because the switch on his room light did not work. He then opened his refrigerator door which gave some light and leaned over close to the face of the deceased. He went over to Willa Watson and asked her about deceased because the face had appeared "wet." He then called the police twice. When he saw them arrive, he returned to the apartment from where he had gone to use the telephone.
Defendant testified that he had spoken with the police officers and with the State's Attorney but he denied that he had told any of them that he had struck or killed deceased. The State's Attorney gave him a paper to sign but he ...