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People v. Owens





APPEAL from the Circuit Court of Cook County; the Hon. DANIEL J. WHITE, Judge, presiding.


Defendant, Ned Owens, was indicted for the murder of Frank Davis. (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1 and 9-1(a-2).) He was found guilty by a jury and sentenced by the court to 30 to 60 years imprisonment. Defendant appeals and here contends: (1) he was not proven guilty beyond a reasonable doubt; (2) the pretrial identification procedures employed by the police were so suggestive as to give rise to a substantial likelihood of irreparable misidentification so as to deny defendant due process of the law; (3) he was deprived of a fair trial by the court's refusal to allow the rehabilitation of an alibi witness after the latter's impeachment; (4) the trial court erred in allowing the introduction of three 10-year-old prior convictions to impeach his credibility; (5) the prosecutor's final argument was prejudicial in commenting that an alleged alibi witness had failed to testify, and in characterizing defendant's testimony as false; (6) the trial court erroneously instructed the jury that the State need not prove motive; and (7) his sentence was excessive. We affirm.

The pertinent facts follow.

On April 29, 1974, defendant filed pretrial motions to suppress evidence of prior convictions, and to suppress any in-court identification by the witness, Fred Carson. At the hearing on the motion to suppress identification held on July 12, 1974, Carson testified that on May 31, 1973, he observed two men engaged in conversation in the vicinity of 50th, or 51st Street and Calumet, Chicago. As one man turned and walked away, the other man pulled a revolver and shot the victim in the back. The following Saturday, June 2, the witness viewed a mixed group of 10-12 colored and black-and-white photographs supplied by a police officer. Carson identified defendant's photograph as being that of the man who had fired the revolver, and testified that he did so without prompting or comment from the police officer as to which photograph to select. The next day Carson viewed a lineup of five men, and again identified defendant. On cross-examination, the witness stated that in no way had any officer indicated to him which photograph or lineup subject to select.

Investigator Patrick Carroll testified that he had interviewed Carson on the day of the shooting, and Carson had at that time given Carroll a general description of the man who did the shooting. On June 6, Investigator Carroll went to Carson's place of employment and showed him six black-and-white photographs, and Carson identified the photograph of defendant. Investigator Carroll then showed Carson a color photograph of defendant, which Carson said was a closer likeness of the man he had seen do the shooting. Investigator Carroll did not in any way indicate to Carson which photograph he should identify, and it was only after the witness had identified defendant's black-and-white photograph that the officer showed him the color photograph. The color photograph of defendant was not with the other photographs, but was either in Investigator Carroll's pocket or his partner's pocket until after Carson had identified the black-and-white photograph of defendant. On the basis of the foregoing testimony, the motion was denied.

Prior to commencement of the trial on August 5, 1974, the court heard argument on defendant's motion to suppress evidence of prior convictions. Defendant had been convicted of three counts of armed robbery on February 14, 1958, and had been released from custody on these charges on November 6, 1963. Defense counsel indicated to the court that the release date was approximately 9 years and 7 months prior to the occurrence in the instant case. The court denied the motion.

At trial, Alberta Smith testified for the State that she had known both the victim and defendant for 20-25 years. On May 31, 1973, she attended a card game in a third-floor apartment at 51st Street and Prairie, Chicago, arriving at approximately noon. There were 30-40 other people present, and Miss Smith and a friend, named Laura, became engaged in a conversation with the victim. Defendant asked them to be quiet, and the victim responded by walking around the table, pointing his finger at defendant, and telling defendant that "he wanted him to quit treating him like he was a damn kid." He further stated that he would go out and call the police and have the game raided. Defendant then closed the game for the day. Upon leaving, Miss Smith stood at the corner of 51st Street and Prairie, talking with the victim and some other friends. Shortly thereafter, defendant and the other participants in the card game emerged from the building. She remembered looking at a clock, and it was then approximately 1:30 p.m. Miss Smith then departed with her friends, last seeing the victim alive at the corner of 50th Street and Prairie.

Upon cross-examination Miss Smith testified that defendant was wearing some kind of green plaid coat, which was "bursting in the back." Upon redirect examination she stated that the coat was a dark green plaid suitcoat. She could not recall the color of his shirt and pants.

Fred Carson testified that at approximately 2 p.m. on May 31, 1973, he was driving north on Calumet Avenue. As he approached 50th Street, he noticed two men to his left. When Carson entered the intersection at the stop sign, he heard a gunshot, looked around, and saw one of the two men shooting at the other. He identified defendant as the assailant. At the time of the shooting, the victim was walking south on Calumet, his back toward the defendant. Both men were facing, and moving, south. As more shots were fired, Carson exited his car and "was just standing there dazed, looking toward the scene." After the victim fell, defendant walked up and shot him as he lay on the ground. Defendant then put the gun in his pants, turned, and walked west through an empty lot, turning south in an alley toward 51st Street. During the time prior to defendant's departure through the lot, Carson had approximately two minutes in which to observe defendant. At the time of the shooting, Carson was 50-60 feet away from the two men, who were 5-10 feet apart from each other. Carson waited at the scene until the police arrived. Approximately one week later, he identified defendant's photograph from a group of approximately one-half dozen, and on June 17, 1973, he identified defendant in a lineup.

Upon cross-examination, Carson testified that when he first noticed the two men he was approximately 50-75 feet away, heading toward them. He ultimately passed them at about 15-20 miles per hour. There were other people standing in doorways near the scene of the shooting. He described defendant as wearing a banlon pullover-type sweater, and greenish pants. About a week after the shooting a police officer came to his house and showed him approximately six photographs, mostly black and white. He admitted testifying at the preliminary hearing that he had viewed 10-12 photographs. He could not describe any of the other people on the scene at the time of the occurrence. Carson again stated that the assailant placed the gun in his pants following the shooting, and then admitted that at the preliminary hearing he had testified that the man had put the gun into his sweater. He told police at the scene that the assailant was a middle-aged man, 50-60 years old.

Upon redirect examination Carson stated that, shortly after the incident, he gave a description of the assailant to the police as being a male Negro, 5 feet 8 inches tall, approximately 200 pounds, wearing a green banlon pullover-type sweater, and green slacks.

Upon re-cross-examination Carson stated that his attention was first drawn to the two men because they were the only people on the street. He did not notice, at that time, the other people standing in the doorways.

Investigator Patrick Carroll testified that on June 6, 1973, Carson identified defendant's photograph from among six black-and-white photographs shown to him. After Carson identified defendant's black-and-white photograph, he was shown a color photograph of defendant, which he also identified.

Upon cross-examination Investigator Carroll stated that on June 4, 1973, he had interviewed a Willie McClain, who came into the Area One homicide office, related that he lived at 50th and Prairie, and gave a statement as to what he saw. McClain then viewed defendant among a number of other men sitting together at a table, but did not make an identification.

Investigator James Scott testified that on June 17 he conducted a five-man lineup. Carson viewed the lineup, and defendant was arrested at its conclusion.

Upon cross-examination Investigator Scott stated that he went to Carson's home sometime prior to June 17 and showed Carson the same group of photographs which had been shown him earlier by Investigator Carroll. Among the lineup participants, only defendant's picture had previously been displayed to Carson.

Defendant called Clifford Burks as his first witness. Burks was present at the card game on May 31, 1973. After the game closed Burks stood on the corner of 51st Street with some friends. He went to speak with another friend who was eating in a restaurant. Defendant came by and asked for a ride home, which Burks provided. The next time he saw defendant was at about 8:30 p.m. that same evening at Sportsman's Park Racetrack. Defendant wore a green checkered sportcoat at the card game.

Upon cross-examination Burks testified that after leaving the game he saw Miss Smith drive away in a car with others, and he saw the victim leaning on a parking meter near the corner of 51st and Prairie. Burks spoke with his friend in the restaurant for about 3-4 minutes. When he left, the victim was no longer at the corner of 51st and Prairie. When defendant requested a ride home he was carrying the green sportcoat over his arm. Burks could not recall the color of the shirt defendant wore but stated it was a short-sleeved cotton sportshirt. After dropping defendant at his home, Burks returned to 51st and Prairie, picked up a friend, and proceeded to 50th and Calumet, arriving there 12-15 minutes after leaving defendant. A crowd was gathered at 50th and Calumet, and Burks learned that a man had been killed and the body already removed. During the ride to defendant's home, defendant told Burks he was going to the races and would try to arrive in time for the second race.

Joseph Cooks and Steven Garrison both testified that they saw defendant at Sportsman's Park on the evening of May 31. They met defendant after the eighth race, around 10 p.m.

Defense counsel renewed his motion to suppress evidence of prior convictions, reciting that defendant's discharge had been "nine years and six months before the time of ...

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