APPEAL from the Circuit Court of Kankakee County; the Hon.
MICHAEL A. ORENIC, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Defendants were found guilty of murder following a jury trial in the Circuit Court of Kankakee County. Defendant Bolton was sentenced to a term of imprisonment for not less than 90 nor more than 150 years, and defendants Marshall and Watkins were each sentenced to a term of imprisonment for not less than 75 years nor more than 150 years. On appeal, defendants raise the following issues: (1) whether the evidence was sufficient to establish their guilt beyond a reasonable doubt, (2) whether evidence of other crimes was improperly admitted, (3) whether comments by the prosecutor in her opening and closing arguments constituted prejudicial error, (4) whether the trial court erred by refusing to give an instruction on circumstantial evidence, and (5) whether the trial court improperly sequestered the jury over defendants' objections.
In order to fully dispose of the issues, it is necessary to discuss at some length the details of this case.
On December 20, 1970, the body of Bernice Vanzant was found in a wooded area approximately 600 feet from her house, near St. Anne, Illinois. She had been missing since December 16, 1970. Subsequently Leon Bolton, Charles Marshall, Tommy Watkins and Leo Collins were arrested and charged with the murder. Leo Collins plead guilty and received a sentence of from 21 to 40 years in the penitentiary. Phillip Troupe, who also confessed to being a participant in the murder, was handled as a juvenile and not charged with murder in return for his testimony at trial. Following the trial, at which Troupe was the sole occurrence witness for the State, the jury found the three defendants guilty of murder. On appeal, this court reversed and remanded because the State had permitted Troupe to testify falsely that he had not entered into an agreement with the State whereby he received preferential treatment in return for his testimony. (People v. Bolton (3d Dist. 1973), 10 Ill. App.3d 902, 295 N.E.2d 11.) At the second trial, out of which this appeal arises, the State chose to present the testimony of Collins instead of Troupe.
At this trial, the State's evidence showed that the deceased was reported missing on December 16, 1970. A search of her home revealed that several items were missing, including a food stamp booklet. A search party consisting of friends and relatives of the deceased found her body on December 20, 1970. The coroner testified that the body, which was blindfolded and gagged, was frozen and had apparently been lying for some time in the position in which it was found. An investigator for the State testified that in his opinion the deceased had been killed where the body was found, because of a bullet found underneath the body and the amount of blood which had saturated the sand beneath the body. A pathologist performed an autopsy on December 21, 1970, and estimated the time of death to be four to five days before the autopsy. He also stated that a test of the potassium content in the eyes gave a time of death of 140 hours prior to the autopsy. The pathologist's examination revealed that Mrs. Vanzant had been shot four times with a .38 and twice with a .22, with the cause of death being a .22 wound in the head. The presence of sperm in the deceased's vagina was also noted.
A clerk employed by an A & P store in St. Anne testified that on December 16, 1970, five young males came into the store and purchased groceries with a food stamp booklet bearing the signature of Bernice Vanzant. The clerk identified Tommy Watkins as one of these young men. Another clerk testified to the same incident and identified Watkins and Charles Marshall, and a customer who was in the store at this time identified Watkins and Leon Bolton.
Leo Collins testified that on December 15, 1970, at approximately 9 p.m. he, Troupe, Watkins, Marshall and Bolton walked to Mrs. Vanzant's house. Watkins was carrying a .22 rifle and a shovel, which he left on Mrs. Vanzant's porch. The six people talked for a while and then Bolton and Marshall took Mrs. Vanzant into her bedroom where they remained for about one-half hour. After Bolton and Marshall came out, Collins and Watkins went to the bedroom and had intercourse with Mrs. Vanzant. Collins and Watkins then returned to the living room, and Bolton re-entered the bedroom. A short time later Collins heard Bolton shout, "You are going to do what?" and a slap. Marshall went into the bedroom and Collins heard Bolton say, "She is going to ____," and then lower his voice. Bolton and Marshall brought out Mrs. Vanzant, who was gagged and blindfolded, and Marshall led her out the door while Bolton directed the others to follow. Collins observed that Bolton, who was holding the .38 revolver, stayed inside the house for a few minutes and then came out, wiping the door with a cloth. Bolton and Marshall led Mrs. Vanzant down the road while Watkins, who was carrying the .22 rifle, walked behind with Troupe and Collins. The three defendants then walked further with Mrs. Vanzant, and Troupe and Collins stopped and waited. About ten minutes later Collins heard shots which he described as one or two .22's and four or five .38's. The three defendants returned to where Collins and Troupe were standing, with Marshall carrying the .22 rifle, and the five men walked to a car parked in front of Mrs. Vanzant's house and started it. When they got into the car Bolton gave Collins a food stamp booklet. After driving to Collins' house and eating, Troupe, Bolton and Marshall left, while Watkins spent the night at Collins' house.
The next morning Collins went outside to tend to some livestock. When he returned to the house Watkins and the .22 rifle were gone. Later Troupe, Watkins, Bolton and Marshall came to Collins' house, and the five men then went to the A & P in St. Anne. On the way to the store, Bolton asked Collins to return the food stamp booklet which Bolton had given to Collins the night before. After purchasing groceries they returned to Collins' house. A bread delivery truck drove by and Troupe flagged down the driver, telling him that Collins wanted to pay their bill. The driver came into the house and was grabbed by Bolton and Marshall. He was put into the back of his truck accompanied by all the men but Marshall, who drove the truck. After driving for a while the truck stalled and the men got out, leaving the driver lying face down in the back of the truck. Bolton pointed a .38 revolver into the truck and pulled the trigger, but the gun did not fire. Marshall grabbed the gun and fired five shots into the truck at the driver. At the trial Collins identified a photograph of the truck driver.
Collins was subjected to vigorous cross-examination by all three defense attorneys. It was brought out that Collins had told two different versions of the killing, one when he was arrested and the other when he plead guilty. Collins' first statement was that he was forced to go to Bernice Vanzant's home where Bolton and Marshall raped and shot Mrs. Vanzant. According to his second version, Bolton, Marshall, Watkins and Troupe raped Mrs. Vanzant and then led her across a field to shoot her. Collins explained the first version as being an attempt to protect himself and Watkins, who is Collins' cousin. The second version, Collins explained, was a statement given by Troupe which was read by the prosecutor at the time of Collins' guilty plea, and to which Collins assented as being substantially correct Collins also admitted that in return for his testimony at trial the State agreed to write a letter to the parole authorities outlining his cooperation at the trial.
Orville Asher testified that he was employed as a bread delivery driver in December of 1970. He testified to being robbed and shot on December 16, 1970, and his version was substantially similar to Collins' version. He was shot in the head and the bullet was removed approximately three weeks before the trial. He stated that he was not able to identify his assailants because they were behind him when they were in the house and because he was lying face down in the truck. He recalled that the house in which he was first assaulted belonged to Olivia Collins.
A ballistics expert, who compared the bullet removed from Asher's skull with the .38 bullets removed from Mrs. Vanzant's body, testified that these bullets positively were fired from the same gun.
Bolton and two witnesses testified that he was in Chicago during December of 1970, but they were unclear as to exact dates. Marshall presented four witnesses placing him in Chicago during December of 1970, but they also were uncertain as to exact dates. Watkins testified and denied shooting Mrs. Vanzant. He admitted being in the A & P store, but stated that Collins was the person who used the food stamps. Two deputies and a friend of Mrs. Vanzant testified that they searched the wooded area near Mrs. Vanzant's home at various times from the day she was reported missing, December 16, until the day her body was found, December 20. They stated that on several occasions they searched the area where the body was eventually found, but they did not find a body.
The first issue is whether the evidence is sufficient to establish the defendants' guilt beyond a reasonable doubt. Defendants contend that such degree of proof is lacking because their convictions are based on the testimony of Collins, an admitted accomplice and because the State's theory of when the murder occurred is contradicted by the testimony of the deputies who had searched unsuccessfully for the body.
• 1 The testimony of a confessed accomplice is not of the most satisfactory character because such testimony may have been prompted by hopes of leniency or malice toward the accused. However, even the uncorroborated testimony of an accomplice is sufficient to sustain a conviction, if it satisfies the court or jury beyond a reasonable doubt. (People v. Hansen (1963), 28 Ill.2d 322, 192 N.E.2d 359, cert. denied (1964), 376 U.S. 910, 11 L.Ed.2d 608, 84 St. Ct. 665; People v. Baker (1959), 16 Ill.2d 364, 158 N.E.2d 1.) In Hansen, the court stated:
"Such infirmities, in turn, go to the questions of the weight of the evidence and the credibility of the witnesses, matters peculiarly within the province of the court or jury in the first instance, and if the jury or trial court is satisfied by the testimony of an accomplice that the defendant is guilty beyond a reasonable doubt, we will not disturb a conviction on ...