APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
A. MEIER III, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Following a finding of no probable cause at a preliminary hearing, defendant, Arthur Jack Roberts, was indicted and tried for the murder of Edward Willis. After a bench trial in the circuit court of Cook County, defendant was found guilty of the lesser-included offense of involuntary manslaughter and was sentenced to one to ten years. Defendant contends on appeal that he was not proved guilty beyond a reasonable doubt, and that the trial court erred in the admission of certain rebuttal evidence.
At approximately 1:15 a.m. on March 24, 1973, Edward Willis was found mortally wounded in an alley behind the Tiffin Theatre in the City of Chicago.
At about 10:30 p.m. on March 23, Willis, his girl friend Debra Peters, and several friends went to Hank's Tap, located on West North Avenue in Chicago. Willis' friends were members of the Rebels, a motorcycle club; Willis was a prospective member. Approximately one hour later, defendant and his brother Larry entered the tavern, which was owned by defendant's father-in-law. Defendant stood talking to friends near the bar stools occupied by Willis and Debra. According to Debra, when defendant started to lean backwards toward them, Willis reached out and either stopped or pushed him away. The two men exchanged words and then had a brief fist fight. Willis sustained no damage and defendant's face was bruised. After the two men were separated, Debra observed defendant run around the bar and then to a telephone. At this point Willis and she left the tavern.
Thomas Ryza, who had accompanied Willis into the tavern, testified that after the fight was broken up defendant ran behind the bar and told the bartender to give him a gun or a club. After the bartender refused and pushed him away, defendant made a telephone call, during which he stated that he had "got in it with the Rebels" and that he wanted his gun. Defendant then ran out of the tavern, followed by Ryza.
Ryza testified that outside of the tavern defendant approached the car in which Willis and Debra were sitting and stated that he would kill Willis if the latter ever returned to North Avenue. Defendant then ran to a friend's car parked nearby and demanded a gun. As defendant started to reach under the front seat, he was restrained by others, and the car in which Willis was riding pulled away.
On cross-examination Ryza stated that on the evening in question he did not see a gun in the possession of defendant or Willis. Ryza did not relate the above series of events to the police until after the defendant was subsequently discharged at a preliminary hearing. He thought that enough people had informed the authorities what had occurred at the tavern.
Robert Bakalik, another friend of Willis who accompanied him to the tavern, also testified for the State and corroborated the testimony of Ryza as to what occurred inside the tavern and to the subsequent events outside the tavern. Bakalik further testified that he told Willis and Debra that everyone was going to Britt Baker's house after leaving the tavern. He stated that Debra and Willis left Baker's house sometime between 12:30 a.m. and 1 a.m. and that Debra returned alone 15 minutes later.
On cross-examination Bakalik testified that he did not inform the police of the threats he heard defendant make because he was not asked. He did not mention the matter to the authorities until six or eight months had elapsed.
Debra Peters testified that their group went from the tavern to Britt Baker's home, located at North Avenue and Keystone in Chicago. She stated that defendant and his brother were nearby when Bakalik told the group to go to Baker's home. After a short time Willis and she walked to a nearby liquor store to make a purchase. While returning to the Baker residence, the couple were walking through an alley behind the Tiffin Theatre when a dark, four-door auto drove up behind them. Willis pushed Debra and told her to run. The vehicle passed the couple, backed up, and three men holding pistols emerged. As Willis ran forward, he was caught by the two passengers. The driver then grabbed Willis. Debra was standing at the rear of the car on the driver's side. The car's exterior and inner lights were on, and Debra's view was clear and unobstructed. The driver and Willis were facing each other on either side of one of the lighted headlights, and Debra saw the driver holding a gun near Willis' face. One of the passengers wearing a green jacket with oval name patches on the chest pockets grabbed Debra and told her to run. She was held for about a minute. After a shot rang out, Debra ran forward past the three men and the mortally wounded Willis. Upon her arrival at Baker's home, the police were called, and she told them that "Jack," the defendant, had done the shooting.
On cross-examination Debra estimated that the police arrived at the scene of the shooting at 1 a.m. She was uncertain, but she believed the man who grabbed her in the alley was defendant's brother Larry. At the first lineup she viewed in the early morning hours of March 24, she observed five men. She immediately recognized defendant as the man who had shot Willis but she did not verbally identify him. She was about to inform Officer Fitzgibbons of her recognition when the officer abruptly ended the lineup and told her not to say anything because he wanted a new lineup with an additional male. Debra expressly identified defendant as the killer during subsequent lineups that morning.
Officer Richard DeVitto of the Chicago Police Department testified for the State that he arrived at the scene of the shooting shortly before 1:15 a.m. The body was lying on the north side of the alley behind the theatre. The body was across from the fire exit doors of the theatre approximately 20 yards east of the Karlov Avenue entrance to the alley. The officer recalled that the lighting conditions were good. He did not recall whether the fire exit lights were burning at the time. DeVitto estimated that the street lights were 20 to 30 yards away from the body. He could see so clearly that he did not have to use his flashlight.
Sergeant Roger Sullivan of the Chicago Police Department testified for the State that after defendant arrived at the police station Sullivan escorted him upstairs to a lineup. As they were walking, he asked defendant what happened. Defendant replied that he had meant only to hit Willis over the head, not to shoot him. Sullivan testified that he related that statement to Fitzgibbons, the investigating police officer. Sullivan did not recall telling anyone else about the statement until after defendant was discharged at the preliminary hearing. Sullivan did not make a written report concerning defendant's statement. After defendant's release, Sullivan was contacted by Investigator Law and Willis' mother, who both inquired about the statement defendant had made.
Defendant testified in his own behalf and offered an alibi defense. He was presently managing the J & J Lounge, located at 2128 West North Hoyne in Chicago from 6:30 p.m. to 11:30 p.m. on March 23. At the bar, owned by his mother, he had several drinks. At 11:30 p.m., defendant, his brother Larry, and Howard Baker, an acquaintance, left in two cars for Hank's Tavern. Baker parked his car immediately in front of the one in which Willis had been driven. Defendant admitted that at Hank's he had a brief scuffle with Willis, after which he asked for a ...