APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
E. CHERRY, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Charles Allen and Curtis Henderson were indicted for the attempt armed robbery and murder of Charles Hayes. A jury found them guilty of both crimes and they were sentenced to concurrent terms of 5 to 10 and 40 to 80 years. They have prosecuted separate appeals. Allen challenges the verdict on numerous grounds the principal ones being that reversible error was committed in denying his motion for a separate trial and in allowing into evidence out-of-court statements incriminating him in the crimes.
On the night of October 18, 1972, Charles Hayes and his wife were shopping in a grocery store at 308 South Kostner Avenue, Chicago. About 11 p.m., Allen (16 years of age), Henderson (15 years old) and two other youths, Paul Bardney and Terry Davis, entered the store. Upon completing their shopping the Hayeses left the store and walked to their auto which was parked near the front door. The four youths followed them out. As Hayes was assisting his wife into the auto he was accosted by two of them, one of whom was armed with a sawed-off shotgun. Mrs. Hayes was told to keep quiet or they would "let him have it." While the youth with the weapon kept him covered, the other went through Hayes' pockets. Hayes attempted to seize the gun and was shot in the abdomen. He died instantaneously from the shotgun blast.
Henderson, Bardney and Davis were arrested the following evening. They attempted to flee as the police approached them but were seized, taken to a police station and questioned. They admitted being in the store prior to the shooting but denied being involved. They implicated Allen and the police started looking for him. They found him asleep on a closet floor in an apartment occupied by his uncle and aunt at 305 South Kostner Avenue, across the street from the grocery store. He was asked if he knew where the shotgun was. He said it was inside a refrigerator on the back porch. The police found the gun used in the shooting and another shotgun in an abandoned refrigerator that had been turned to the wall. Later, Allen told the police that Bardney did the shooting. When the police accused Bardney of the crime, he said that Allen held up Hayes and shot him.
After they were arrested the four young men were placed in lineups. Henderson was pointed out by Mrs. Hayes as the man who searched her husband, but she did not identify Allen, Bardney or Davis.
Mrs. Hayes and Bardney testified for the State. Mrs. Hayes said that Henderson was the man who went through her husband's pockets, but that she was not in a position to see the man who held the gun. Bardney testified that he saw Allen walk up to the Hayes' auto, saw Hayes grab Allen, heard a shot and ran away. He ran to Henderson's home which was just around the corner. Allen came there 15 minutes later with a 16-gauge shotgun. Bardney admitted that the gun belonged to him, but said that he had left it with Allen the afternoon of the shooting and had not seen it at the time the shooting occurred.
Davis, a defense witness, testified that he saw a barrel of a shotgun protruding from Bardney's coat sleeve before Bardney and Allen followed the Hayeses out of the store. He stated that after the shooting, at Henderson's home, Bardney told him that he shot Hayes when Hayes started to choke him.
Henderson testified in his own behalf. He said that he was in the store when Allen and Bardney came in and remained there after they left; that he was inside when he heard the shot and that he and Davis rushed to the door, saw Hayes on the ground and ran home. Allen and Bardney were already there when they arrived.
Allen testified that he left the store before the Hayeses did. He said Bardney followed them out and when he saw a shotgun in Bardney's hand and heard him call "Come on," to someone else, he ran and as he ran he heard a shot. He first went to his aunt's house and then to Henderson's where he stayed for half an hour before returning to his aunt's where he spent the night. He said Bardney came there and asked him to keep the shotgun for him. He finally told Bardney he could hide it on the back porch. The next morning he looked inside the refrigerator and was surprised to see two shotguns.
The jury accepted Mrs. Hayes' identification of Henderson as the youth who frisked her husband, but it had no assistance from her in determining who killed him. Thus, a crucial question before the jury was who fired the fatal shot, Allen or Bardney? Allen was indicted and prosecuted, Bardney was not, but under the admissible evidence either could have been the slayer. Both were at the immediate scene of the crime. Bardney testified that Allen approached Hayes, and the murder weapon was found in Allen's possession. Allen testified that Bardney followed Hayes to the auto with a shotgun in his hand, Davis testified that he had seen a shotgun protruding from Bardney's sleeve and the murder weapon was owned by Bardney.
• 1, 2 In this balanced situation it was essential that the scale not be tipped by improper evidence. It is Allen's contention that there were two instances of improper evidence; that he was prejudiced by the admission of two out-of-court statements implicating him in the crime. The first of these was a statement by Bardney that Allen carried a shotgun in the sleeve of his coat the night of the murder. Bardney's statement was disclosed to the jury as the result of a defense effort to impeach his credibility. Bardney testified that Allen was already in the store when he walked in. Allen's attorney confronted him with a contrary answer he had made to a question asked by an investigator: "We walked in the store and Charles Allen stepped in behind us in the store." On redirect examination the State, ostensibly to restore the credibility of its witness, read more of Bardney's answer:
"Well, do you recall telling the investigator * * * in addition to what counsel read to you, `We walked into the store, and Charles Allen stepped in behind us in the store. He had a sawed-off shotgun in his right sleeve of his coat. I saw the gun. I think it was a 16-gauge shotgun. In the store was Charles Hayes' wife. Curtis Henderson threw a quarter on the counter and asked for a pop, and the store owner said, "If you're going to act this way, I ain't going to give him no pop * * *."'"
Allen's attorney objected and the court instructed the jury,
"* * * to disregard the answers of the witness with respect to the purchase of the pop, and whatever testimony was alluded to by this witness subsequent to the purchase of the pop, and throwing the coins down, and what the storekeeper said, or the ...