APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Gus Jones, Nancy Smith and the defendant, David Byrd were indicted for the murder of Alice Latimore and for the attempt murder and armed robbery of her father, Clarence Latimore. Byrd obtained a severance from the other defendants. He was tried by a jury, found guilty and was sentenced to concurrent terms of 100 to 300 years for the offense of murder, 5 to 15 years for the attempt murder and 25 to 50 years for the armed robbery.
Three points are argued on appeal, that he was not proved guilty beyond a reasonable doubt, that error was committed in permitting the testimony of police officers concerning their investigatory procedures which led to Byrd's arrest, and that a photograph of Byrd was improperly admitted into evidence and taken to the jury room.
Clarence Latimore lived on the far south side of Chicago with his common-law wife, Nancy Smith. His daughter, Alice Latimore, one of three children born to him by his divorced wife, was visiting at his home on July 25, 1971. Latimore, who owned four liquor stores, returned home that night about 10 p.m., put his auto in the garage and tried to enter his house. The door was locked and Nancy Smith opened it. As Latimore stepped inside the unlighted hallway, Gus Jones, a former employee of his, put a gun to his head, hit him on the side of the head with it and said, "This is a stick-up." Jones was joined by another man with a gun, a stranger to Latimore, whom he later identified as the defendant David Byrd. They escorted Latimore into a bedroom. When they turned on the light he saw his daughter seated on a bed with her feet bound together and her hands tied behind her back. Jones again slapped him on the head with a pistol and told Smith to get something to tie him up. She returned with a clothesline and a bathrobe belt. Jones tied his hands behind him, had him lie down with his face to the floor, bound his feet and instructed Byrd to kill him if he moved. Byrd sat on the floor, spread his legs and put Latimore's head between them. Latimore raised his head and looked up at him twice and both times Byrd struck him with his gun. Jones took his watch and his rings and then turned him face upward and took $700 from his pocket. They had been in the bedroom about an hour when Jones cut the bonds on his feet and his daughter's and with Smith and Byrd escorted them to the garage.
Latimore owned two Cadillacs, one was green and the other was brownish gold. He was compelled to lie face down on the rear floor of the green Cadillac and Alice was made to sit on the rear seat. The three abductors got in the front seat. Jones tried to back the car out of the garage but he had difficulty and he told Smith to take over. After she backed the green car out, Jones got into the gold one, drove it alongside the green one and directed the others to follow him. His destination was a sand pit in the vicinity of Routes 30 and 83 in Cook County. He had to stop for gas and Smith and Byrd drove on. On the way to the pit, Byrd fired ten intermittent shots, five of them at Latimore's head and five at Alice. Latimore was shot in the ear, the neck, the back and top of his head. Alice was shot in the mouth, ear and chest. Alice was killed, but, miraculously, Latimore was not.
The green car came to a stop at the sand pit a few minutes after the last shot was fired. When the other car drove up Jones came over to the green car and Smith told him, "They are dead. He shot them both, shot them both five times." Jones looked in and said, "They are dead." Latimore feigned death. Someone loosened his hands and felt his pulse and put a hand to his face. Satisfied that the Latimores were dead, the murderers left them in the green car and drove away in the gold one. Latimore stayed on the floor a few more minutes before crawling out of the car.
A man who worked at the pit and lived adjacent to it was awakened about midnight by the barking of a dog and the opening and closing of car doors. He looked out of his bedroom window and saw two Cadillacs and people going back and forth between them. When one drove away, he went to investigate. He looked through the window of the remaining Cadillac and saw one person on the back seat and one on the back floor. He returned to his home and called the State police. When a State trooper arrived there was only one body in the car.
Latimore did not know that his daughter had died. He was able to get out of the car and when he saw her slumped over and bleeding from her mouth he went for help. His own face was covered with blood and he felt weak but he managed to reach two homes where he knocked on the doors and windows but received no response. He then walked along the road, hiding in a ditch when cars came along for fear that Jones, Smith and the stranger might be coming back. He finally reached an open food store. The sheriff's police came in response to a telephone call and an ambulance took him to a hospital.
Nancy Smith and Gus Jones were arrested on July 26 and Byrd two weeks later on August 9. The rings and the watch taken from Latimore were recovered; the $700 that he had on his person and $5,000 that he had in a brown paper bag in his home (and which he thought he saw in the auto under the front seat on the passenger's side while he was lying on the back floor) were not recovered. It was the State's theory that Byrd was a hired assassin and that this money, or some of it, was used to pay him.
Byrd did not testify at his trial and offered no explanation of his whereabouts on the night of July 25. His contention that the State did not prove him guilty beyond a reasonable doubt rests on Latimore's identification, which Byrd claims was vague, uncertain and contradictory.
The crimes were investigated by the Illinois State police and the Cook County sheriff's police. Latimore gave four statements to the police, two in the emergency room of the hospital to which he was taken, and a written one the morning of the same day and another one the following day at the sheriff's police station in Homewood. To the officer who first questioned him in the emergency room, he described the third participant in the crimes as being about 6 feet, 2 inches, dark and with a natural hair style. To the second officer, he described him as around 6 feet tall, in his twenties, dark and having a natural. Latimore left the hospital the early morning of July 26 without being discharged. He told the officers who first questioned him at the Homewood station that the man who shot him was about 5 feet, 10 inches tall, weighed about 175 pounds, was a dark, male Negro, and that he did not know if his hair style was "natural or process." His last statement, made on July 27th, described the man as a "male Negro about five feet eight, about 170 pounds."
In the course of their investigation the police obtained a picture of Byrd taken in 1969 two years before the July 25 crimes. They showed this picture, and those of four or five other individuals having physical characteristics similar to Byrd's, to Latimore. He said the picture of Byrd looked like the man, but he wasn't sure because the picture was of a younger man.
Latimore was unable to recall whether the unknown assailant had worn glasses, but he believed he had not. Byrd, who wore glasses at the trial, was not wearing glasses at the time of his arrest and did not have any on at the lineup. An optometrist testified that he prescribed glasses for Byrd in 1969; that Byrd was myopic and was unable to see the size, shape or color of objects beyond a few feet.
The variations in the height given by Latimore, his uncertainty about the 1969 picture and his lack of recollection about the glasses form the principal basis for the contention that Latimore's identification was neither positive nor credible. The testimony of one witness is sufficient to support a conviction if the witness' identification of the accused is both positive and credible. The credibility of the identification and the weight to be given the witness' testimony are for the jury to decide. Its judgment will be set aside on review only if it ...