APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of murder and attempt (armed robbery) in violation of sections 9-1 and 8-4 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 9-1 and par. 8-4) and was sentenced to a term of 25 to 45 years for murder and 5 to 10 years for attempt. On appeal he contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied a fair trial by the State's delay in producing certain evidence, by the State's closing argument, and by the court's failure to tender an instruction to the jury; and (3) his conviction for attempt must be reversed because it arose from the same conduct as his murder conviction.
At trial, the following evidence pertinent to this appeal was adduced.
He is a Chicago police officer with 4 1/2 years' experience. At 5:40 P.M. on December 30, 1970, he and his partner, Officer Karaus, responding to a radio call arrived at 6440 South Greenwood where they discovered an Abernathy cab which had collided with a parked Rambler on the west side of the street. The driver was slumped over the steering wheel. The driver's side window of the cab was shattered but intact. There were five or six holes in the front windshield. He saw no one in the street. Pieces of glass were found inside the vehicle and on the street. At Woodlawn Hospital he inventoried $7.95 found in the driver's pockets.
He has been a detective on the Chicago Police Department for the last 13 of his 18 years service. He corroborated Officer Gaynor's testimony regarding the location and the vehicles involved. The driver's body had been removed before he arrived at the scene. The taximeter and the motor were still running. He found two shotgun casings on the street near the cab. He examined the deceased's body at Woodlawn Hospital. There were wounds in the left shoulder area and a slight mark on the bridge of deceased's nose.
In the early evening hours of December 30, 1970, as he and Nathaniel Nelson were walking south in the 6400 block of Greenwood on the east side of the street, he saw Ulysses Murphy walking toward them. Murphy turned around before he reached them. He then saw Murphy, Joe Thomas, Larry Jones, and defendant in a gangway. When he was about ten feet away from those boys, he saw defendant holding a rifle in his right hand. As he and Nelson continued walking, he heard Murphy say: "Let's get this cab." He then saw Murphy walk into the street and flag down a cab. While he was looking through a small window in the hallway of a building about four buildings south of the gangway, he saw defendant, standing at the curb, fire the first of several shots at a cab. The first shot pierced the windshield of the cab and the cab hit another car. He saw defendant fire other shots at the cab, one into the side window of the cab. He testified that there were no passengers in the cab at the time of the shooting.
On cross-examination, he admitted making numerous inconsistent statements while under oath at previous trials. Among these were statements that defendant did not fire the first shot, that there was a female passenger in the car at the time, that he was on the street when the shots were fired, not in a hallway, that he did not know who made the statement to shoot at the cab, that he was not sure which hand held the rifle, that he previously said defendant was holding it in his left hand, that he had seen five or more boys in the gangway rather than the four he had just named, and that Murphy had passed him on the street, then turned and followed him.
When the State was unwilling to vouch for his credibility the court made him its witness. He was walking south on Greenwood with Robinson on December 30, 1970. He saw defendant, Murphy, Joe Thomas, and Larry Jones in a gangway. Defendant was not doing anything. He had known Keith Williams for about 18 months prior to December 30, 1970. He heard Murphy say "Let's get this cab." and then heard a shot when he was about 20 feet south of the gangway. When he heard the first shot he started running down Greenwood. He heard three shots in all and saw defendant and Larry Jones ...