APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was found guilty of two counts of murder and sentenced to terms of 40 to 80 years on each count, to be served concurrently. On appeal, he presents the following issues for review: (1) whether the trial court erred in its determination that a 12-year-old witness was competent to testify; (2) whether the rulings on certain evidentiary matters were in error; (3) whether he was denied the effective assistance of counsel; and (4) whether his guilt was established beyond a reasonable doubt.
Max, Lewis, and Abraham Schuman owned and operated a cleaning, tailoring and fur repairing business located at 7127 South Halsted Street, in Chicago, and they resided on the floor above the shop. On October 18, 1974, at about 6 p.m., Abraham closed the shop by bolting the door and pulling down the shade. His brothers remained as he went upstairs to their living quarters. He had just arrived there when he heard rattling and hollering downstairs and talking in the gangway next to the shop. He ran back to the shop, where he saw Lewis lying near a showcase and Max on the sidewalk in front of the store. The intruders had rifled the drawers and the cash register, which had contained about $200, and they also had attempted to open the safe.
Lewis was dead on arrival at the hospital, and Max died within five to ten minutes of his arrival there. Autopsies were performed, and it was stipulated that the brothers had died as a result of gunshot wounds.
The Schumans' shop was located on the east side of Halsted Street, which runs north and south. The east-west street to the north of the shop is 71st Street and to the south 72nd Street. An alley, which runs parallel to Halsted Street, is located directly behind the shop.
At trial, Andre Smith testified that at approximately 6 p.m., on October 18, 1974, defendant was standing in front of a pool hall located on the southeast corner of 72nd and Halsted Streets, and he saw defendant walk down Halsted Street toward 71st Street about five minutes before he heard shots fired. Stanley Rounds testified that a few minutes before he heard gunfire, he saw an unidentified male knocking on the front door of the Schumans' shop as defendant stood in the gangway to the north of the shop. In response to the knocking, he saw the door open and the two men rush inside. Michael Martin, a 12-year-old who, after a preliminary hearing by the court had been found competent to testify, stated that he heard two shots and saw one of the Schuman brothers come out of the shop and fall to the ground, and then he observed four men including defendant exit the shop. As they ran out, he heard defendant say, "No, don't go that way. Go the other way." The four men then ran into the gangway. Delbert Wooten, called as a witness by the court, testified that after hearing gunshots he saw two men emerge from a gangway near the cleaning shop, take approximately 10 steps down an alley in a northerly direction, and then disappear into another gangway. Wooten stated he could not recognize either of the men, as it was dark and he was "high." Martin and Rounds, however, identified defendant as one of the men they had seen running down the alley moments after the shooting.
Each of these witnesses had a prior acquaintanceship with defendant. Martin testified that he had seen defendant four times prior to the incident and had on one occasion conversed with him for half an hour. On the date of the occurrence, Martin's vantage point gave him a side view of defendant's face and, when the detectives arrived on the scene, he identified defendant by name and described him as walking with a limp and wearing a long brown checked coat, which he had seen defendant wear on a prior occasion, and high heeled shoes. Andre Smith described defendant as wearing a coat the length of which was above the knee. Although Andre knew defendant by name at the time of the occurrence, it wasn't until two months later that he identified defendant as the man he had observed walking toward the cleaners prior to the shootings, and his identification then was in response to police questioning. Rounds described defendant as wearing a tweed maxicoat with a matching wide brimmed hat. However, despite the fact that one of the men he saw run down the alley had a limp similar to that of defendant, he did not positively identify defendant until three hours after the occurrence during questioning at the police station. While Wooten testified that he had not seen defendant on the date in question, a statement he gave the day after the occurrence revealed that he had identified defendant as one of the men he had seen run down the alley subsequent to the sound of gunfire. He testified, however, that he gave this statement only as part of a bargain with police to obtain favorable treatment for himself.
Defendant was arrested the day after the occurrence, and Officer Cushing, one of the arresting officers, testified that defendant was informed that he was under arrest for a murder which had occurred the evening before at 7127 South Halsted Street. Cushing said that although defendant was not told that there was a robbery involved, he asked, "Why do you have me on a pimpy 100 dollar robbery?"
It was stipulated that although fingerprints were taken from the shop, none matched those of defendant.
• 1 Defendant first contends that the trial court did not conduct an adequate inquiry into the competency of Michael Martin, the 12-year-old State's witness, and that certain of his responses established his incompetency. We disagree. Where a witness has not attained the age of 14, the trial court is required to hold a competency hearing prior to permitting him to testify. (People v. Sims (1969), 113 Ill. App.2d 58, 251 N.E.2d 795.) It must be ascertained whether the "* * * child is sufficiently mature to (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth" (People v. Broughton (1976), 35 Ill. App.3d 619, 625, 342 N.E.2d 100, 104), because the child's level of intelligence rather than his age is determinative of his competence (People v. Brown (1972), 52 Ill.2d 94, 285 N.E.2d 1; People v. Ballinger (1967), 36 Ill.2d 620, 225 N.E.2d 10, cert. denied, 388 U.S. 920, 18 L.Ed.2d 1366, 87 S.Ct. 2141). The competency of such a witness is a question addressed to the sound discretion of the trial court and, in the absence of an abuse thereof or a manifest misapprehension of a legal principle, its determination will not be disturbed by a court of review. Brown; Ballinger.
• 2 During the course of his examination by the court and counsel, Michael Martin stated his age and grade level and identified the person with whom he lived and the school he attended. Furthermore, he testified that he understood what it was to tell the truth; that he had sworn to tell the truth; that those who so swear but do not tell the truth go to jail; that the Bible which he read on occasion obliged him to speak the truth; and that by telling a lie, he would hurt himself and his family. Defendant refers us to specific responses made by Martin during his examination and urges that they suggest that he had no inclination to be honest with the court. However, our review of the record of the preliminary hearing satisfies us that Martin understood the questions asked, gave responsive answers and exhibited a suitable degree of intelligence and an indicated awareness of a moral duty to tell the truth. The trial court was in a superior position to observe and evaluate the demeanor of the witness and, in our opinion, there was no abuse of discretion in allowing him to testify. Ballinger; see also People v. Jackson (1971), 3 Ill. App.3d 303, 279 N.E.2d 8.
Defendant next contends that he was prejudiced because of three erroneous rulings of the court upon certain evidentiary matters. First, he asserts the court admitted hearsay when it allowed Officer Cushing to testify that neither he nor his partner had informed defendant that he had been arrested for robbery. We cannot agree. In People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738, 741, hearsay has been defined as:
"[T]estimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value ...