APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Tommy Ortiz (defendant) was found guilty of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1), burglary (par. 19-1) and unlawful use of weapons (par. 24-1(a-10)). He was sentenced to concurrent terms of 50 to 100 years for murder, 5 to 15 years for burglary and 3 to 10 years for unlawful use of weapons. Defendant has appealed.
In this court, defendant contends that he was denied a fair trial because the prosecutor, in rebuttal argument, accused defendant and his attorney of fabricating the defense. The State's Attorney is also claimed to have prejudicially characterized a transaction at which defendant was present as a "narcotics buy." Defendant further maintains that he was not proved guilty beyond a reasonable doubt.
On April 30, 1974, at 7:30 p.m., Sandra Mellor and George Diaz returned from a shopping trip to the apartment they had been sharing. Miss Mellor testified that the place was in a shambles, with furniture overturned, dresser drawers taken out and clothing strewn about. A man stepped out of the apartment entrance hall into the living room and shot George Diaz fatally in the chest with a revolver. The assailant then ran out of the apartment and down the stairs.
The witness described the intruder as having worn a "dark leather-looking jacket, dark pants" and a purple ski mask. She testified that he was wearing dark brown gloves at the time he shot Diaz. The police were then called. Miss Mellor discovered that $300 held by a silver money clip, a necklace, a ring and two wrist watches were missing from the apartment. In the living room, she found a duffle bag that, before the burglary, had been kept folded in a closet. It contained the couple's stereo receiver and three photographs.
Officer Gates testified that he and his partner responded to a "Robbery in progress" radio call for 652 West Waveland at about 7:40 p.m. by driving south on the Inner Drive in Chicago. At the intersection of Waveland Avenue, less than a block from the scene of the burglary, Officer Gates observed a blue Corvette automobile which was also in the southbound lane of the Inner Drive. The defendant, whom the officer recognized, was in the driver's seat with a black leather jacket draped over his shoulders. After he saw Officer Gates, defendant backed his car north at a high rate of speed, struck two cars, went across the northbound lanes, jumped the curb and crossed the parkway onto the southbound section of Lake Shore Drive. The defendant's car then sped south for four or five blocks at speeds reaching 90-100 miles per hour, sharply swerved east across the median strip, bounced over the northbound lanes of the expressway, struck a fence and rolled over several times. Officer Gates had been in pursuit in the squad car with the siren and emergency lights in operation. He found defendant lying near the car in a semiconscious state.
The officer testified that he observed a .38-caliber revolver, loaded with five live cartridges and one spent shell, on the ground between defendant and the car. Defendant was wearing dark pants. Under the car was a black leather jacket with a flashlight, a pair of handcuffs, two watches, a ring, a locket, a necklace and a black holster in its pocket. A purple ski mask and a pair of brown gloves were found in a sleeve of the jacket. The items of jewelry thus recovered were identified at trial as the articles missing from the scene of the burglary and murder. Miss Mellor testified that the ski mask found by Officer Gates looked like the one worn by the intruder.
Officer Donsbach testified that he accompanied defendant to the hospital in the ambulance. In the emergency room, the officer examined defendant's clothing and found $300 held by a money clip inside a pants pocket. The clip was later identified by Miss Mellor as the one missing after the burglary.
A police fingerprint expert identified as belonging to defendant a fingerprint taken from a photograph that had been found in the duffle bag. A .38-caliber bullet was recovered from a wall in the Mellor apartment but the State's firearms expert could not conclusively determine that the bullet had been fired from the gun found with the defendant. During closing argument, however, defendant's counsel stated that the defense had attempted to stipulate to the fact that "the bullet recovered from the apartment * * * was probably fired from the gun * * * recovered at the scene of the crash."
Defense witness Elton Dorsey testified that he talked with defendant for 15 minutes on the lakefront at Addison Street in Chicago, beginning at 7:15 or 7:30 p.m. on the evening in question. Defendant was driving a blue Corvette at the time.
Defendant testified that, following guilty pleas, he had been convicted of burglary in 1969 and armed robbery in 1970. Upon his release from jail in 1973 he had been informed that he could neither own nor possess firearms for five years without incurring liability for unlawful use of weapons. Defendant stated that in April 1974, he and a man named Valdez had gone to George Diaz' apartment on Waveland Avenue where Valdez introduced him to Diaz. Valdez had then purchased marijuana from Diaz who showed them pornographic or salacious photographs of himself and his girl friend. Defendant at that time held and touched the pictures. Defendant had been unable to locate Valdez and he was not called as a defense witness.
Defendant also testified that on April 30, 1974, after talking with friends at the lakefront, he drove south on the Inner Drive to Waveland Avenue where there was a large corner lot containing billboards fronted by bushes. He saw a man run around the corner of Waveland onto the lot, put something in the bushes and go back around the billboards. Defendant double parked, went to the bushes and returned to the car with a leather jacket he had found. Defendant asserted that a gun and some money in a clip were contained in the jacket. He pocketed the money and threw the jacket over the gun on the passenger seat. At that point he saw a squad car stop in front of him with its emergency lights on. Officer Gates jumped out and pointed his gun at defendant's windshield. Defendant had seen that particular officer earlier in April and knew that Officer Gates was aware that defendant had served time in prison. Defendant further testified, "I got scared, I panicked and I ran." He said that he then backed his car over the embankment onto Lake Shore Drive and proceeded south at 80-90 miles per hour when the car went out of control and crashed. Defendant testified on direct examination that he had not told Officer Gates at the first opportunity what he had seen regarding the gun and jacket because defendant thought the officer would not believe him. Defendant testified that he had not worn a leather jacket over his shoulders on the night in question. He expressly denied being near the Waveland apartment on the day of the murder and that he shot George Diaz.
We will first consider defendant's argument that he was not proved guilty beyond a reasonable doubt because the evidence against him was wholly circumstantial and the prosecution failed to exclude every reasonable hypothesis of innocence.
Defendant insists that his own testimony, as corroborated by Elton Dorsey, places him at the lakefront at 7:30 p.m. and thus proved that it was impossible for him to have been the murderer. He urges that since this testimony was neither contradicted nor improbable, the jury was not free to reject it, citing People v. Jordan (1954), 4 Ill.2d 155, 163, 122 N.E.2d 209. He further claims that his testimony adequately explained his acquisition of the jacket with its contents and his flight from Officer Gates. He concludes that a reasonable hypothesis of innocence was thus established and the jury was under a duty to resolve ...