APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Larry Bounds (hereinafter defendant or Bounds) appeals from his convictions on one count of murder and three counts of attempt murder. Bounds was tried jointly with Theodore Hall before a jury. Each was found guilty on all four counts and each was sentenced to a term of 100 to 150 years on the murder count to be served concurrently with a term of 10 to 20 years on each of the three attempt murder counts. A third co-defendant, Michael Brooks, pled guilty after a severance and was sentenced to a term of 20 to 40 years on the murder charge. In a separate appeal, Hall's conviction was affirmed and his sentence modified. People v. Hall (1973), 17 Ill. App.3d 1, 307 N.E.2d 664.
Defendant was accused of participating in an attempted armed robbery of a tavern located at 856 West 51st Street in Chicago on 28 December 1969. In the course of this armed robbery attempt, shooting broke out. Three tavern patrons were wounded and one, Richard Fuller, was killed.
At trial, seven occurrence witnesses testified. Their testimony established that on 28 December 1969, at about 1:45 or 1:50 a.m., four black men entered the tavern and announced a robbery. Initially, one of the offenders wore a rag-like mask. Ultimately, the faces of all four offenders were visible. The tavern was well lit. One of the offenders was armed with a sawed-off shotgun while the others were armed with handguns. Shooting broke out shortly after the offenders entered the tavern. An occurrence witness, Henry Marek, an off-duty investigator with the Chicago Police Department, drew his snub-nose revolver and fired two shots immediately after the shooting started. One of those shots struck Michael Brooks. Marek believed that his other shot might have hit Theodore Hall. The entire incident was over in a minute or two.
While several occurrence witnesses were able to identify Hall, Marek was the only trial witness who identified Bounds. Since the legal sufficiency of the identification of Bounds is the principal issue on appeal, the trial testimony of Marek must be examined in detail.
On direct examination Marek testified that he was an investigator in the robbery section of the Criminal Intelligence Division of the Chicago Police Department and had been a member of the force for 16 years. After completing his duties on 27 December 1969, he went home, changed to civilian clothing, and went with his wife to the tavern at 856 West 51st Street, arriving there at 12:15 a.m. on 28 December. At 1:50 a.m., while he was sitting at the end of the bar farthest from the entrance to the tavern, he noticed a black man carrying a sawed-off shotgun with a rag over his face, pointing the shotgun at the bartender. He then observed another black man carrying a small handgun standing near a shuffleboard game on the west wall of the tavern; he identified this man as Theodore Hall. Next, he observed a third black man standing next to a telephone, whom he identified as Michael Brooks. After he saw these three offenders, he heard gunshots, whereupon he drew his snub-nose revolver and fired at Michael Brooks. After Brooks fell from Marek's shot, Marek fired at Hall. At this point, Marek's gun jammed. Marek testified that he then saw Hall run toward the door, after which he saw a fourth offender standing about 30 feet from him. Marek identified this fourth offender as the defendant, Larry Bounds. Bounds was carrying a handgun. Fearful that Bounds would shoot at him, Marek fell to the floor; he heard two or three more shots, after which the offenders fled. Later that morning, at a lineup, Marek identified Hall as one of the offenders.
On 16 February 1970, Marek was shown seven or eight photographs of black males of similar age and physical appearance; one of the photographs was a photograph of Bounds. He identified the photograph of Bounds as a photograph of the fourth offender hereinabove mentioned. Between 28 December 1969 and 16 February 1970, Marek had not seen Bounds in person.
On cross-examination, Marek stated that, at the lineup on 28 December 1969, he had positively identified Hall and had made a tentative identification of one Oscar Peterson. During the time he was at the tavern, Marek stated that he had consumed two or three bottles of beer but that this amount of beer in that span of time did not affect him. Of the four offenders, three carried handguns and one carried a sawed-off shotgun. Those with handguns wore no masks. The bartender first called Marek's attention to the offenders. Within seconds, shooting broke out. Initially, he saw three people with guns.
Still on cross-examination, Marek was questioned about his photographic identification of Bounds on 16 February 1970. He did not know who took the photos. Prior to 16 February 1970, he had seen other photos in connection with the case. Marek denied ever stating that he couldn't see the other two of the three whom he had initially seen (i.e., the two other than the man armed with a shotgun). Defense counsel then read a portion of Marek's testimony at the Coroner's inquest on 5 February 1970 into the death of Richard Fuller. There Marek had stated, "At about 1:50 in the morning, the owner nudged me and said it looks like a robbery. I looked up and saw three men. One had a shotgun, the other two I couldn't see * * *." Marek explained that he meant that he could not see what weapons the other two were carrying, if any.
On redirect examination, Marek testified that Peterson was the man with the shotgun and that the other three were Bounds, Hall, and Brooks. The two or three beers he had consumed did not affect his ability to act or observe.
On re-cross-examination, with reference to the photographs he examined on 16 February 1970, Marek testified that, although he could not state that the photos shown to him at trial were the same photographs as those which he had then examined, they were certainly similar.
A copy of Marek's testimony at the Coroner's inquest was made a part of the record on appeal. In addition, Marek's testimony at a pretrial hearing on defendants' motion to suppress identifications is a part of the record on appeal. While there are some apparent inconsistencies between Marek's testimony at trial and his testimony at these earlier proceedings, no direct impeachment efforts were made by defense counsel other than those related above.
During cross-examination of an Officer Barrett, an investigating officer and a State witness, the defense attempted to question the identity of the photographs exhibited in court with those shown to Marek at the time he made the identification of Bounds. In order to do so, the defense tried to show the lack of any reference to such photographs in any of Barrett's police reports. ...