APPEAL from the Circuit Court of Cook County; the Hon. MINOR
K. WILSON, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Indictment No. 70-1247 charged defendants-appellants Treadest Murray (hereinafter defendant or, when distinction is required, Murray) and Sam (Samuel) E. Dillon (hereinafter defendant or, when distinction is required, Dillon) with the murder of one John Sterling (two alternative counts: Ill. Rev. Stat. 1969, ch. 38, par. 9-1(a) (1), (a) (2)) and with the aggravated batteries of Tommie Akins, Robert Chatmon, and Barbara King (three counts: Ill. Rev. Stat. 1969, ch. 38, par. 12-4(b) (1)). Both defendants pled not guilty to each count. After a jury trial, in which defendants were represented by separate counsel and in which each interposed a separate alibi defense, both defendants were acquitted of each charge of aggravated battery, but were convicted of murder. Post-trial motions for a new trial and arrest of judgment were heard and denied. After a hearing in aggravation and mitigation, each defendant was sentenced to a term of from 14 to 20 years in the Illinois State Penitentiary. Each defendant then filed a separate appeal and each was represented on appeal by separate counsel. The appeals were consolidated for oral argument and opinion.
The basic facts from which the charges arose may be summarized as follows: At some time between 8:45 and 9:30 p.m. on the night of 17 April 1970, two black men entered the Wonder Club Bar at 317 West Division Street in Chicago. At that time there were about 50 to 60 customers in the bar, who were being served by three bartender-waiters and two floorwalkers. One or both of the men began firing guns. After several shots had been fired, the two men left the bar. John Sterling was shot twice and died shortly afterwards from one of his bullet wounds. Tommie Akins, Robert Chatmon, and Barbara King each sustained one bullet wound.
In the separate appeals, Murray presents two issues for review; Dillon presents four (actually five) issues, of which two are the same as the two presented by Murray. The two common issues, themselves interrelated, are:
(1) The State's evidence was legally insufficient to prove the guilt of each defendant beyond a reasonable doubt.
(2) The verdicts of guilty of murder but not guilty of each count of aggravated battery are logically inconsistent in that the only question before the jury was whether the respective defendant was identified as one of the two assailants; this logical inconsistency contributes to a reasonable doubt as to the guilt of each defendant.
One of the additional issues presented by Dillon is closely related to the two common issues. Dillon contends that the verdicts are not only logically inconsistent but are also legally inconsistent; since they are legally inconsistent, the conviction of murder must, as a matter of law, be either reversed outright or at the least reversed and remanded for a new trial on all counts. These three issues focus our attention on the identification evidence adduced by the State at the trial and on the evidence adduced by each defendant at the trial as to his identification and as to his alibi. A detailed summary of the trial evidence is therefore necessary. *fn1
After the deceased's wife had testified as the State's "life and death" witness, the State called Lee Liddell, who identified himself as a bartender working in the Wonder Club on the night of the shooting. He testified that, at about 8:30 p.m. on the night of Friday, 17 April 1970, he saw both defendants enter the Club, walk around it for about 5 minutes, and then leave. He was then standing alongside a telephone booth just to the left of the front door (from the point of view of one entering the Club by that door). *fn2 There were then about 50 people in the Club. He heard Dillon say to some person other than Murray (which person was unknown to the witness): "There is the fellow who saw us the other night." At about 8:45 p.m., both defendants entered the Club by the front door; the witness was still standing in the same place. Dillon walked in the aisle between the tables and the bar to about the midpoint of the bar; Murray followed a few feet in back of Dillon. Each defendant then simply pulled out an automatic weapon and began firing it. Dillon was about 9 feet way from the witness, and Murray was about 4 feet away; Murray was opposite to and in front of the witness. One Jelena Tolbert, another employee of the Club working that night, was in the rear of the room. The witness heard five shots, after which defendants backed out the front door. Mr. Sterling was wounded; he had been sitting at the bar on about the second stool from the front end of the bar. The witness immediately called the police, who arrived in 5 to 10 minutes. Within 20 minutes thereafter, the police took the witness and Tolbert to a police station where the witness examined about 100 police photographs and made a photographic identification of each defendant. The witness had occasionally seen Dillon in the Club prior to the night of the shooting. There was a handgun, which was owned by the witness' employer and for which the witness had a permit, kept in a locked drawer behind the bar; the witness did not fire that gun at any time on that night. The witness then identified certain State's exhibits as accurate photographs of the Wonder Club exterior and interior as it looked on the night of the shooting. The witness also identified State's exhibit No. 7 for identification as a police photograph of Sam Dillon which he had seen for the first time at the police station after the shooting, and which he had identified as depicting one of the two men involved. He similarly identified State's exhibit No. 8 for identification as a police photograph of Treadest Murray, which he had also identified at that time and place as depicting the other man involved. The witness then made in-court identifications of each defendant.
On cross-examination, Liddell testified that one Wilbert Norman, a bartender for the Club, was working behind the bar when the two men first came in; he did not know exactly where Tolbert was either at that time or when the two men entered the second time. There were about 50 people in the Club, about 30 at the tables and about 20 at the bar, and it was noisy. The first of the two men to enter the first time had on a tan jacket and a sport shirt; he had no necktie and no hat. The witness did not remember the color of his pants or shoes. The witness did not recall the color of his eyes or the shape of his nose or jaw or the length of his hair. The second man was short and dark-complected; the witness did not recall the color of his pants or shoes or the type of coat he was wearing. They stayed about 10 minutes, walked around the front half of the Club, and left by the front door. They reentered about 5 minutes later. Both then had automatic weapons in their hands. They stayed for about 10 minutes and shot up the place. It was at the police station that the witness had first described the two men to the police; he had not been asked to describe them before. He described them as Negroes, one wearing a light jacket and the other wearing a dark jacket. The photographs which he had examined at the police station had been in a small file box, and they had been divided by index cards from "A" through "Z"; he had examined the back half of the group from "N" through "Z"; but had not examined the front half. Tolbert was seated at the opposite side of the table, about 2 feet away. The witness examined a photograph and then handed it to Tolbert, who then in turn examined it. The witness had seen Dillon in the Club over six times, and had cashed paychecks for Dillon on three or four of those times; he knew Dillon by face but not by name. He had never gone out with Dillon's ex-girlfriend. He told the police that he had seen the two men before, but he did not tell the police that he knew the men.
The second occurrence witness for the State was Jelena Tolbert. He testified that, on the night of the shooting, he was working in the Wonder Club on the floor, waiting on tables. At about 9 or 9:30 p.m., Murray came into the Club. Murray was wearing a black jacket and a white tee shirt. Murray looked young to the witness, so the witness asked Murray if Murray had an I.D. card. When Murray said no, the witness told Murray that he would have to leave the Club, but that he could first use the washroom at the rear of the Club. Murray did so. The witness then saw Murray speak to Liddell for two or three minutes, but he did not know what was said. Murray then left the Club by the front door. He returned about 3 minutes later with Dillon. This was the first time that the witness had seen Dillon on that night; the witness recognized Dillon by a headband which he wore around his head. When Dillon came in the front door of the Club, he had a gun held down by his side. When the witness saw the gun in Dillon's hand, the witness, still in the rear of the room, backed behind the bar through the rear entranceway to the bar, which was near the washroom at the rear of the Club. As a result, the witness did not see who fired the several shots. When the firing began, the witness dropped to the floor behind the bar. Before hiding behind the bar, however, the witness had seen Dillon in the aisle at about the midpoint of the bar, backing toward the front door. At that time, Murray was standing in the aisle alongside the telephone booth and Liddell; the witness did not see Murray with a gun. While the witness did not see who fired the shots, the first shot came from where Dillon was backing away toward the front door. There were 50 to 60 people in the Club (about 20 at the bar) and it was crowded. After the police came, the witness did not speak to them, but 15 or 20 minutes later, the police took the witness and Liddell to the police station. They put photographs on a table in a room, and then they left the room. The witness examined about 100 police photographs; he picked out photographs of Dillon and of Murray as depicting the two men who had entered the Club at the time of the shooting. State's exhibits Nos. 7 and 8 are two of those photographs. The police had not asked him for a description of the men. Before that evening, he had not known Dillon by name and had never before seen Murray. Just after the shooting, the witness had taken a .38-caliber revolver from a drawer behind the bar, had put it in his pocket, and had gone outside; he had not seen anybody outside, so he went back into the bar and replaced the gun in the drawer. He did not fire the gun that night nor had he ever fired it at any time.
On cross-examination, Tolbert testified that the man who entered the Club the first time and whom he had asked for an I.D. card, was wearing a short black jacket and a white tee shirt; he had black hair and popping big eyes (bug eyes), but the witness could not recall the color of his eyes or the color of his pants. The man was by himself that first time. When he came back into the Club the second time, the witness did not see him with a gun or firing any shots. The witness stated that Dillon was shooting at him that night because he had asked Dillon's girlfriend out; but he had not known Dillon before the shooting. The witness had been in the United States Army for 7 years; he had been convicted of robbery and had been court-martialed.
The State then called each of the three persons who had been struck by bullets that night.
Barbara King testified that, on the night of the shooting, she was in the Wonder Club with her older sister. At about 9:20 p.m., she was seated alongside her sister at about the center of the bar. While sitting there, she saw Murray (whom she had never seen before) talking to Tolbert, who was asking him for identification. Later, as she was talking to her sister, she heard noises like firecrackers. She looked toward the front of the bar and then got down to the floor. She was hit in the head by a bullet, but she did not know who fired the shots. She did not see Murray with a gun on that night, and she did not see Dillon in the Club at all on that night.
Tommie Akins testified that he arrived at the Wonder Club at about 8:35 p.m. on the night of the shooting. He was in the washroom in the rear of the Club when he heard noises which sounded like firecrackers. He put his head out the door of the washroom and was hit in the jaw by a bullet. He did not know who shot him and he could not identify either defendant as having been present in the Club that night.
Robert Chatmon testified that he was in the Wonder Club on the night of the shooting. A few seconds after he had entered the Club, when he was standing about 9 or 10 feet from the front of the Club and looking around him while heading toward the rear of the Club, he was shot in the left leg just above the knee. He did not know who shot him and he could not identify either defendant as having been present in the Club on that night.
Wilbert Norman, a bartender in the Wonder Club on the night of the shooting, testified that, at about 9:30 p.m., he was behind the bar toward the rear of the Club, walking toward the midpoint of the bar. Suddenly, two glasses were blown out of his hand by bullets. He dropped to the floor. When the shooting started, Tolbert was in the rear of the Club about 9 feet away from the witness. The witness did not know who had done the shooting. He had never seen either defendant prior to the day he testified at the trial.
Chicago Police Officer Dennis Noga testified that, in response to a radio message to patrol cars, he and his partner arrived at the Wonder Club at about 9:45 p.m. on the night of the shooting. Liddell had described one of the two men as a male Negro, 6 feet tall, wearing a dark headband and a light colored jacket; Liddell had also described the other man. If Liddell had told the witness that he (Liddell) knew the names of the men, the witness would have included that fact in his police report; no such fact was in the report. The witness had inspected the premises for evidence. He found one .25-caliber cartridge casing and one .9-mm cartridge casing but no other physical evidence. One casing was lying on the floor toward the middle of the Club; the other was lying on the floor at the front of the Club between the front end of the bar and the front door. The casings were about 20 to 25 feet apart.
Detective Thomas Creighton testified for the State that, at about 10:10 p.m. on 17 April 1970, he had been assigned to investigate a shooting which had just occurred at the Wonder Club. He went to the hospital where Mr. Sterling was, and found that Sterling's injuries were grave and that he could not be interviewed. The witness then went to the police station, where he met Liddell and Tolbert. In a private office at the police station, he showed them about 100 police photographs; he said nothing to them while they were examining the photographs.
The final witness for the State was Dr. Jerry Kearns, a pathologist for the Coroner of Cook County. On 18 April 1970, he had examined the body of the deceased, John Sterling. Mr. Sterling had died as a result of a bullet wound; the bullet had entered the left side of his abdomen, had exited on the right side of his back, and had lacerated the aorta and the vena cava.
Five witnesses testified in behalf of Murray; three were occurrence witnesses (whose testimony was equally in behalf of Dillon) and two were alibi witnesses.
Cosette Armstrong testified that she was in the Wonder Club with friends at about 9 p.m., the approximate time of the shooting. Earlier that night there had been some sort of argument in the Club and a couple of fellows had been ejected from the Club. The witness had seen the two men who were ejected, and neither defendant was one of those two men. Later, one of the witness' friends said: "There's those fellows and they have guns." The witness turned around and saw the fellows; she did not know them but they were the same two men who had been ejected, and she was positive that neither defendant was one of those two men. The witness had not known either defendant prior to 17 April 1970 and did not even know them at the time she was testifying. The witness did not see any shooting because she turned away from the two men so that they would not see her looking at them. When she turned away, she heard shooting and saw a flash from the rear of the Club. The witness thought that she could recognize, describe, and identify both of the men who had done the shooting, but she would not describe them for fear of reprisal; however, they looked nothing like the two defendants.
Johnny Nelson testified that he was in the Wonder Club at the time of the shooting. About 8 p.m. on that night, two men had come into the Club and had thereafter been ushered out by a short, heavy bartender who "manhandled" one of them. The witness did not know either of the men who had been ushered out and did not even know what they looked like because he had simply casually noticed them, but neither defendant was one of those two men. The witness had never seen either defendant before testifying at the trial. A short time later, two men had come into the Club with guns, and shooting followed at the rear of the Club. The witness could not say whether the two men who did the shooting were the same men as the two that had been ushered out earlier. At the time of the shooting, the witness was seated at the back end of the bar near the washroom. During the shooting, the witness saw a heavy-set bartender come out from behind the bar at the rear of the Club, face toward the front of the Club, and fire a shot. When he fired the shot, the bartender was about 4 or 5 feet away from the witness. The witness could not describe either of the two men who had been ejected or either of the two men that had done the shooting, but neither defendant was one of any of those men. On cross-examination, the witness stated that he could not say whether he saw the men who did the shooting.
Oliver Emerson identified himself as the brother-in-law of the deceased John Sterling. He testified that, on the night of the shooting, he had been in the Wonder Club with John Sterling. They had entered the Club about 8:45 p.m. or sometime between 8:45 and 9:15 p.m. They were sitting at the front end of the bar. The witness heard some sort of an argument between Tolbert and two men in the rear of the Club; the argument was about someone not being of drinking age. Tolbert was asking the two men to leave the Club and the men were leaving and did leave. The witness did not see the face of either of the two men. The witness then heard Tolbert ask for "that piece" and saw a man behind the bar hand a pistol to Tolbert. After a while, somebody entered and started shooting. The witness did not know whether the shooters were the same two men who had been earlier asked to leave. When the witness heard the shots, he dropped to the floor and then crawled to the ladies' washroom at the rear of the Club. John Sterling ducked, and the witness did not see him again until after the shooting had stopped. After the shooting stopped, he saw Tolbert put a gun into a drawer. The witness did not see either of the men who were asked to leave the Club so as to be able to give any description of them whatever, did not see who had done the shooting, did not see anyone with a gun except Tolbert, and did not know whether Tolbert ever fired the gun he had. The witness could not say that either defendant was shooting in the Wonder Club on that night.
Christine Kent testified that, at 6:30 p.m. on the night of 17 April 1970, she went to the home of her friend, Irene Gurley. Her friend, Treadest Murray, was then at the Gurley home, and the witness knew that he would be there because he was living there at the time. She had met Murray through Irene Gurley's oldest son, who was about the same age as Murray. At about 8 p.m., the three left the Gurley home and went to a tavern called The Blue World, located at 18th Street and Karlov Avenue, which was about one block away from the Gurley home. The three remained at The Blue World until 11:30 p.m., drinking, dancing, and listening to music. The three then returned to the Gurley home. When the witness left the Gurley home at about 12:30 a.m. on 18 April 1970, Murray was still there with Irene Gurley. The three of them had been both at Irene's home and at The Blue World on prior occasions. There were a lot of people in The Blue World on the night of 17 April 1970, but the witness knew none of them by name. Murray had danced a couple of times with some women who were there, but the witness did not know the women. The witness could not name anyone who had seen Murray at The Blue World on that night.
Irene Gurley substantially corroborated the alibi testimony of Christine Kent in behalf of Murray, except that her testimony was inconsistent as to when Murray had first arrived at her home on the night of 17 April 1970. She first said about 7 or 8 p.m.; then about 7:30 or 8 p.m.; and finally about 9 p.m. She stated that Murray had always treated her just like a mother ever since she had first met him through her own son.
Three alibi witnesses testified in behalf of Dillon.
Shelma Dillon identified herself as the sister of Dillon. She testified that, on 16 April 1970, she and Dillon had gone by Greyhound bus to Cincinnati, Ohio, for the purpose of visiting a Mr. Eugene Fields (a friend of Dillon and of the Dillon family) and Mrs. Fields on the occasion of Mrs. Fields' birthday, which was April 17. There was a birthday party at the Fields' home on 17 April 1970, and she and Dillon were at the party from 7 p.m. to ...