Appeal from the Circuit Court of Cook County; the Hon. Philip
Romiti, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 22, 1976.
In a bench trial in the circuit court of Cook County, defendant, Sammie Garrett, was found guilty of murder (Ill. Rev. Stat. 1969, ch. 38, par. 9-1(a)(2)) and unlawful use of weapons (knowing possession of a shotgun with a barrel less than 18 inches in length (ch. 38, par. 24-1(a)(7)). He was sentenced to concurrent terms of 20 to 40 years on the murder conviction and 1 to 5 years for the unlawful use of weapons. He appealed the murder conviction to the appellate court and while that appeal was pending filed a petition in the circuit court pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.). The People's motion to dismiss the post-conviction petition was allowed and defendant appealed. The appellate court consolidated the appeals for opinion, vacated the murder conviction, reversed the judgment dismissing the petition for post-conviction relief, and remanded both causes to the circuit court with directions to conduct a hearing in the post-conviction proceeding and enter either a new judgment of conviction of murder or an order granting defendant a new trial. (26 Ill. App.3d 786.) We granted the People's petition for leave to appeal.
The evidence shows that on November 9, 1969, Karen Thompson, the deceased, was 28 years of age, married and the mother of two children. From August until November 9, Karen was enrolled at Prairie State College in a Wednesday evening class on Afro-American art and culture. Apparently it was at this class that she became acquainted with defendant. She was a Caucasian and defendant is a Negro. At the time of the trial, he was 21 years of age, married, had one child, was employed, and was also a part-time student at Prairie State College.
On Wednesday Karen usually left home between 6:30 and 6:45 p.m. and returned between 10 and 10:30 p.m. With the exception of one Wednesday, she had attended all her classes. On Wednesday, November 5, she left for class at the usual time. When she had not returned by midnight, her husband left home to look for her. She arrived home about 12:30 a.m. Her sister, 17 years of age, who lived with Karen and her family, testified that when Karen came home she was crying and appeared to be upset. Her husband returned home at about 1 a.m., and at that time found her still distraught. He asked her where she had been and she told him that she was having an affair with a man.
After that Wednesday evening and for the next two days, Karen was periodically depressed and talked of her desire to commit suicide. The cause of her distress was the recently exposed affair. She had been taking birth control pills and, after she confessed the affair, apparently started taking a patent medicine for depressive moods.
The Thompsons had planned to meet with some friends from the Park Forest area, in Chicago, during the evening of Saturday, November 8. One of the friends telephoned them at about 1:30 that afternoon to inquire who would drive that evening. Karen talked with the friend and, after she hung up the telephone, she turned to her husband and said: "I can't face those people, I don't know."
Shortly before 4 o'clock that afternoon, Karen began packing her suitcase in preparation of leaving her husband and children. She told her husband where she was going. He took the children to a friend's home so that they would not see her leave. At approximately 4 or 4:15 a taxicab arrived at the home, her sister gave her $40, and Karen left in the cab. Her husband returned home at about 4:30 p.m., and did not see her leave.
The cab driver drove Karen to 211 East 16th Street in Chicago Heights. When she got out of the cab she was greeted by a man who resembled the defendant. At about 8:30 that evening the couple registered as Mr. and Mrs. James West of Los Angeles, California, into Room 5 of the Ford City Motel at State Street and Route 30 near Chicago Heights.
Shortly before midnight, Nathan Massengill, one of the owners of Kazak's Lounge, a tavern in Chicago Heights, saw the defendant and a white girl enter the tavern. The defendant had a package wrapped in a coat. Massengill saw what looked like the barrel of a shotgun. Massengill told defendant that he would "have to get out of here with that shotgun." Defendant said he was going as soon as he got a chicken dinner and Massengill told him he would have to leave now. Defendant left and the girl sat down. Defendant returned four or five minutes later, without the shotgun, and sat with the girl. When Massengill left the tavern approximately 10 minutes later, defendant and the girl were still there. Massengill was of the opinion that the girl was under the influence of alcohol. He testified that he did not hear any gun shots or any loud noises which sounded like gun shots while he was at the tavern.
Ed Savage, who had known defendant for about two years, entered Kazak's Lounge about midnight, saw defendant sitting at a table with a white girl and joined them. He was shown a photograph from which he identified the girl as Karen Thompson. The three of them drank beer while defendant waited for the two chicken dinners he had ordered. Savage asked the girl her name, but she did not say anything. About 12:30 a.m. the three left the tavern. While Savage and the girl waited in front, defendant went into the alley behind Kazak's and got the shotgun which was wrapped in a green jacket. Defendant told Savage he found the gun in the alley but he did not tell him when he had found it. Savage drove the couple to the Ford City Motel. He stated that he did not hear any gun shots while defendant was in the alley, nor at any other time that night.
The next morning, defendant, his two brothers and two women went to a police station in Chicago, about 25 miles from the motel. Patrolman Joseph Oklapek, the assistant desk sergeant, testified that defendant told him that he had spent the night in Room 5 of the Ford City Motel with a white girl named Karen, that when he awoke he saw her lying on the floor; that she looked like she was dead; and that he left the motel room, went to his brother's house in Chicago and then went to the police station. Officer Oklapek notified the Cook County sheriff's police, which had jurisdiction of the unincorporated area where the motel was located.
Detective William Mitchell of the major investigation unit of the Cook County sheriff's police arrived at the Chicago police station at about 10:50 a.m. He "informed him [the defendant] of his rights." He and the defendant got into the back seat of a police car, driven by another officer, and left for the Ford City Motel. Mitchell testified that during the ride defendant said that he was out with a young lady, Karen Thompson; that they were drinking and smoking "pot" at the Ford City Motel; that he fell asleep; that when he awoke, the young lady was lying in a pool of blood; that he had not heard any shotgun blast; that he dressed, picked up the shotgun, which was lying alongside the body, wrapped it in his coat, left the motel and hid the gun under a porch at his aunt's house. Mitchell testified that defendant said that he was with Karen Thompson and Ed Savage at 2:45 a.m. when he found the shotgun in an alley behind a "chicken eating place" at 319 Fifteenth Street, and that he had fired two shots there. Mitchell also stated that defendant said he did not want to see the victim and that he would show Mitchell where he found the shotgun and where he had hidden it.
Mitchell then proceeded to the alley behind the "chicken eating place" where he found one spent .12-gauge shotgun shell which was introduced in evidence. He then went to the home of defendant's aunt where, under the rear porch, he found a sawed-off, single-barrel .12-gauge shotgun wrapped in a green coat. There was tape in the middle of the barrel, taping it to the stock, and tape behind the trigger. There was a spent shell inside the shotgun. The shotgun and the spent shell were introduced in evidence.
Mitchell then took defendant to the Homewood District police station. His brothers were there and they told him that he should get an attorney. He did not say anything more to the police. Mitchell said that when they were at the Chicago police station he noticed that defendant had a little cut in the webbing of his hand between the index finger and the thumb, but he did not ask him how he got this cut.
At about the time that Detective Mitchell arrived at the Chicago police station to pick up defendant, patrolman Richard Larson of the sheriff's police department, pursuant to radio direction, proceeded to the Ford City Motel. After talking to a maid he went to Room 5. The door was closed, but unlocked. The door was partially blocked by an object. He saw a woman's body lying on the floor, partially blocking the door. She did not move and he observed the wound on her head. He secured the room, radioed for a detective unit and waited for the detective unit to arrive.
Detective Robert Borowski, an evidence technician and firearms instructor for the sheriff's police, arrived at Room 5 of the motel about 10 minutes after patrolman Larson. He and Larson partially opened the door to the room, which was obstructed by the body, and squeezed into the room. Before he disturbed anything Borowski took eight photographs of the room, all of which were introduced in evidence.
The photographs show that the room was small and appears to be about 10 feet by 12 feet. The door to the room was at the south end in the west wall. A standard size double bed stood with its head against the east wall and extended almost to the north wall. Toward the foot of the bed, against the south wall, stood a small dressing table, with a mirror above it, and a chair. An upholstered chair stood in the northwest corner of the room.
On the bed were a coat, a brassiere, two pillows and a cover. A pair of men's shorts were on the upholstered chair. A paper bag lay on the floor next to that chair. A black suitcase was lying flat on the floor just to the left of the door. On the dressing table were three empty beer cans, an empty fifth wine bottle, an empty half-pint rum bottle, a half-empty bottle of Coca Cola, a container with a grass-like substance appearing to be marijuana, a book of matches, an ashtray, an unexpended .12-gauge shotgun shell, a woman's purse with Karen Thompson's identification in it, the remains of a chicken dinner on top of a paper bag, an uneaten chicken dinner in the paper bag, another paper bag, and a note stipulated to be in Karen Thompson's handwriting stating: "I killed myself, Karen". Alongside the bed, on the south side, were several empty beer cans which do not appear in the photographs.
Karen Thompson's body lay on the floor, and apparently her head and left shoulder had been moved when the door was opened. The body was on its back, the legs straight, and slightly spread. The upper arms were straight out from the sides, the lower right arm bent at the elbow straight up parallel to the body, and the lower left arm bent at the elbow slightly down and back toward the body with the left wrist about seven inches off the floor. She was clothed in a pair of slacks and a long-sleeved, turtle-neck sweater. Her shoes were off. Her head lay in a large pool of blood which extended to her right and above her head. The entire brain was on the floor above her head and had apparently been split apart when the door was opened.
There was blood and tissue matter splattered on the walls and floor, most of it in the southwest corner of the room. There were no pellets embedded in the floor, the walls or the ceiling. Pellets were recovered from the floor and delivered to the crime laboratory. The room and items in the room were dusted for fingerprints, but the detective was not able to obtain clear prints. When Detective Borowski examined the body he observed no powder burns on the head or the hands and no abrasions, cuts, bruises or discoloration on the hands. He found a small amount of blood on them. He put plastic bags over the hands. There was no chemical analysis made for gun powder on the head or hands. He placed the brain tissue in a plastic bag for the coroner, and took blood samples for the coroner and the crime lab.
Detective Borowski stated that his duties as an evidence technician were to collect and preserve evidence at the scene of a crime, that he had been an evidence technician approximately 50 times and that 10 of these occasions had involved a body found in a room. Based on his experience at preserving evidence at crime scenes, his examination of this "crime" scene and the splatterings on the wall, he offered the opinion that the "force exerted against the victim" was in a "south to southwest direction" and on a "downward path."
Dr. Edward Shalgos, a pathologist to the coroner of Cook County, performed an autopsy on the body the following day, November 10. He testified that as the result of his external examination of the body his findings "revolved only about the head wound" of shotgun character. He stated that "the entire vortex which is the roof aspect of the head extending from the forehead to the absolute back of the head and then from each ear region, right and left, was component of the shotgun wound" and that "there was a complete gaping opening all of the bones and skin tissue were laid broadly open with an essential absence of the usual skull contents from the usual skull position." He said he "removed ...