APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The defendant, Elzy Parker, and two co-defendants were charged with the murder of Howard Moore and the aggravated battery of Johnny Carter. A severance was granted to the defendant, he was tried by a jury, found guilty and sentenced to concurrent terms of 40 to 100 years and 3 to 10 years in the penitentiary. Parker appeals this conviction, contending that he was not proven guilty beyond a reasonable doubt; that the trial court's and prosecutor's misconduct deprived him of a fair trial; that several reversible errors were committed by the court, and that his sentence was excessive.
Moore's widow, Magdelene, testified that on August 10, 1973, she was living with him and their two children in a first-floor apartment at 4237 North Kenmore, Chicago. Johnny Carter, Mrs. Moore's brother, lived with them. Parker and his two co-defendants, Joe Malveaux and Eddie Mitchell, lived in an apartment on the third floor of the same building.
Mrs. Moore stated that she had known Parker, Malveaux and Mitchell for several months prior to August 10. She refused to described the three men as "friends," although she admitted that she had been up to their apartment on numerous occasions.
At 6 o'clock in the evening of the 10th, Mitchell and Mrs. Moore and her two children went to the beach. They stayed until approximately 9 p.m. Moore and Carter did not go with them because Moore went to a doctor and Carter had gone to work. When the group returned home, Moore was standing in the back yard. Parker and Malveaux came down the back stairs and said that someone had broken into their apartment. Mitchell asked Moore if he knew anything about the burglary and Moore replied that he did not.
Sometime later Mitchell came to the Moore home and invited them upstairs. The entire Moore family followed Mitchell up to his apartment. Once inside, Mitchell locked the door, bolted it and nailed it shut. He declared that no one was going to leave until his belongings were returned. This was the start of a night-long ordeal for Moore. He was confined to the apartment from about 10 p.m. until 5:15 a.m. when he was rescued by police officers.
Mitchell asked Moore where his property was and Moore replied that he did not know. Moore suggested that Mitchell should ask other people in the building about the missing items and if they would call the police he would let them search his apartment. Parker replied: "We don't need no police, we'll be the police." At this point, Malveaux and Mitchell left the apartment but before they went they instructed Parker, who was seated in a chair with two baseball bats next to him, not to let the Moores leave.
Malveaux and Mitchell returned with the manager of the building, a man by the name of Otto. When Otto denied knowing anything about the missing articles, Parker picked him up and threw him onto a table. After this, he was permitted to return downstairs. Mitchell and Malveaux also left, this time to search the building for the stolen items.
While they were away Parker threatened to kill the Moores and put their bodies in garbage cans. After the men returned Mitchell struck Moore three or four times across the leg with one of the baseball bats. He also threw a large knife towards the door, which was in Mrs. Moore's direction. About midnight, Parker told Mrs. Moore to get her children, who were asleep on the kitchen floor, and go downstairs. As she passed her husband he begged, "Don't leave me."
Mitchell went downstairs with Mrs. Moore. When she unlocked her front door, Johnny Carter, who was sitting on the outside front steps, heard her. He had arrived home from work close to 12:30 p.m., found the Moores' door locked and went outside to wait. Upon seeing Carter, Mitchell told Mrs. Moore not to say anything to him. Malveaux joined them and he invited Carter to a party they were giving in the upstairs apartment. When the men started upstairs, Mitchell warned Mrs. Moore not to leave her home and not to call the police. Mrs. Moore, terrified, did as she was told.
When Carter entered the third-floor apartment he saw blood on Moore's face and shirt, a baseball bat in Parker's hand and another one lying on the floor beside Parker's chair. Malveaux drew a knife and told Carter to sit down and not to move. Mitchell went into a bedroom and came back with a butcher knife.
Malveaux asked Carter where their stolen articles were. Carter said that he knew nothing about them and could not know anything about them because he had been at work. He produced a receipt for his day's pay and showed it to Mitchell. Mitchell stated, "Yes, you've been working."
Parker, however, repeated the questions. When Moore and Carter protested their innocence, Parker struck them alternately with a bat, swinging at them "the same as he would be swinging at a baseball." During one of the beatings, the bat broke in half but Parker, who was 6'4" tall and weighed 250 pounds, continued to strike Moore, who was 5'10" tall and weighed 136 pounds, with the larger end. Malveaux punched Carter with his one hand while pointing a knife at him with the other. Mitchell, armed with the butcher knife, guarded the front door.
Moore asked them to have his wife call an Eddie Harris to see if he knew where the missing items were. While Mrs. Moore was being summoned, Parker again struck Moore with the bat. When Mrs. Moore came in she saw that her husband and brother were bleeding and that their shirts were covered with blood. She and Mitchell left to call Harris. They went to a building across the street because the Moores had no telephone and the one in the building was out of ...