APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Melvin Ellis, was charged with murder and two counts of attempt armed robbery. (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1, 8-4, 18-2.) After a jury trial, he was found guilty of all charges and sentenced to concurrent terms of 30 to 90 years for murder and 1 to 3 years for each count of attempt armed robbery. Defendant now appeals.
Defendant presents three general issues for our review: (1) whether he was denied a fair trial by improper use of rebuttal testimony, prejudicial closing argument, and an inadequate jury instruction concerning impeachment; (2) whether he was proven guilty beyond a reasonable doubt; and (3) whether his sentence for murder was excessive. Due to the nature of the issues raised, a detailed recitation of the relevant evidence presented is necessary.
Richard Aguayo was called by the State and testified that he and his father, Alfred Aguayo, were in the alley behind their home at approximately 9:15 p.m. when two men approached them. One man was wearing a brown corduroy coat and a brown suede "sort of round" hat, and the other a black, knee-length fur coat. The one in the corduroy coat ordered them up against a wall. Richard and his father were now facing their assailants, the one in the corduroy coat directly in front of his father and the one in the black knee-length fur coat off to the side. There were two overhead lights in the area, one approximately 10 to 15 yards from the occurrence and the other 20 to 25 yards from the occurrence. Richard could not see the face of the man in the brown corduroy coat because that individual's hat cast a shadow across his face, but he could see that he was approximately 5 feet, 11 inches tall, very close to his father's height. He could clearly see the face of the other individual in the black fur coat because the light was right in his face. The light was good enough to distinguish brown from black.
The individual in the brown corduroy coat said something to Alfred Aguayo, but Richard could not hear what was said. After his father responded to that comment, the individual in the brown corduroy coat struck Alfred Aguayo across the face with his right hand. Alfred Aguayo retaliated, hitting the man in the brown corduroy coat, causing him to fall back towards the middle of the alley. As he fell backwards, he gave directions to the man in the black fur coat to shoot Alfred Aguayo. Thereupon, the man in the black fur coat shot and killed Alfred Aguayo. After the assailants fled, Richard called the police. When they arrived he described one assailant as wearing a brown corduroy coat and the other as wearing a black fur coat.
The next day, in a lineup, Richard identified Robert Harris as the man who shot and killed his father. Following the lineup, Richard was shown a photograph of Charles Witherspoon, but was unable to identify Witherspoon as one of the assailants. He identified a hat and coat taken from defendant on the night of the shooting as the clothing worn by the assailant who did the talking on the night of the shooting. Finally, in court, he identified defendant "as similar in shape and size" to the person he saw wearing the brown corduroy coat.
On cross-examination, Richard was questioned about testimony he had given at the preliminary hearing during which he described the second assailant (nonshooter) as wearing a brown knee-length coat and a circular cap. As to the difference between cap and hat, he explained that he was not sure which term he used. Asked to elaborate on the exchange of blows between his father and the second assailant, Richard testified that the blow was to the assailant's check and strong enough to turn the assailant's head. After being shown a picture of Charles Witherspoon, Richard testified that the picture depicted marks and blood on Witherspoon's face. He could not positively identify defendant as the second assailant.
David Goodrich and Michael McGuigan, police officers, also testified for the State. They were in a marked squad car when they received a report of a shooting at approximately 9:30 p.m. As they neared the vicinity of the shooting, they observed a car containing three men speed away from the scene. After determining that the car was stolen, they gave chase. After about four blocks, the suspect's car stopped and Officer Goodrich approached the car. However, the car suddenly sped away again, and the chase ensued. Pursuit ended when the suspect's car collided with another car in an alley.
All three occupants scurried from the car. One of the three, later identified as Charles Witherspoon, ran back towards the squad car, and as he passed, attempted to knife Officer McGuigan. McGuigan pursued Witherspoon, and as Witherspoon turned and threw his knife at McGuigan, the officer shot and killed Witherspoon. Witherspoon fell face down in the alley. At the time, he was wearing a black fur coat.
Meanwhile, Officer Goodrich had turned his attention to the two other individuals in the car. One of the two, later identified as Robert Harris, fired at Goodrich. Goodrich returned the fire and struck defendant. Harris fled but was soon apprehended. As both officers approached defendant, he said, "Don't shoot me, I didn't shoot that man, Peewee did it." Peewee was later revealed to be a nickname for Harris. Both officers identified the coat and hat that Richard Aguayo had earlier identified as the coat and hat defendant was carrying when apprehended. There were no marks on defendant's face, but Witherspoon, who had fallen face down, had blood on his right temple and right side of his face.
Sergeant Rinaldi arrived in an alley to investigate a shooting at approximately 9:30 p.m. When he arrived, he found uniformed police officers standing over the body of Charles Witherspoon, lying face down in the alley. Witherspoon was wearing a 3/4-length black fur coat. He subsequently conducted a lineup from which Richard Aguayo identified Robert Harris as one of the assailants. Defendant was not in that lineup. He also showed a picture of Charles Witherspoon to Richard Aguayo but Richard could not identify Witherspoon as one of the assailants. Richard described one assailant to Rinaldi as wearing a 3/4-length black fur coat and the other as wearing a fingertip-length brown corduroy coat. The coat recovered from defendant was a brown fingertip-length corduroy coat. The first opportunity Richard Aguayo had to observe defendant was during a preliminary hearing at which time he identified defendant as "similar in size and shape" of the second assailant.
The State then rested and defendant called Robert Harris to testify. Harris said that at approximately 9:30 p.m. he, Charles Witherspoon, and defendant were in a car driving around. At one point, they stopped and after telling defendant they would be back, he and Witherspoon got out of the car. Defendant remained behind, in the car. Harris and Witherspoon then accosted the Aguayos in the alley. They returned to the car but told defendant nothing. Only after the collision did they tell defendant to get out of the car because it was stolen.
On cross-examination, Harris admitted that he and Witherspoon had grabbed the Aguayos to rob them and admitted doing the shooting. Harris was specifically asked if he recalled telling Officer Drake, the officer who actually arrested him, that it was Witherspoon and not him that shot Alfred Aguayo. He recalled no such conversation. He was also asked if he recalled telling Assistant State's Attorney George Pappas that it was Witherspoon, not him, that shot Alfred Aguayo. Harris again denied making any such statement. Defendant never asked any questions when he and Witherspoon got out of the car, nor did defendant ask any questions as the car was speeding away from the police. Harris denied that Peewee was his nickname.
Defendant testified that he, Harris, and Witherspoon had been driving around when they stopped and Harris and Witherspoon got out of the car. Harris and Witherspoon merely said they would be back. They returned 10 to 15 minutes later and said nothing about where they had been. When the police started chasing them, he asked what was going on, but Witherspoon said nothing. Only after the collision did Witherspoon tell him to get out of the car because it was stolen. He never accosted the Aguayos.
On cross-examination, he admitted that the brown coat and hat identified by Richard Aguayo were his, and stated that both Harris and Witherspoon were wearing black coats. Defendant was specifically asked whether he recalled telling Sergeant Pates at the hospital that he did not shoot Alfred Aguayo, Peewee shot him. He did not recall such a statement. Defendant also did not remember telling the two officers who approached him in the alley that he did not shoot that man, Peewee did. Defendant did not ask any questions about why the police were chasing the car until they entered the alley.
In rebuttal, the State called Robert Harris and asked him if he had pled guilty to and been sentenced for the murder of Alfred Aguayo. He stated that he had. Also in rebuttal, Richard Aguayo testified that he sometimes uses the ...