APPEAL from the Circuit Court of Alexander County; the Hon.
EVERETT PROSSER, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE KARNS delivered the opinion of the court:
Defendant-appellant Bobby Joe Johnson was convicted of attempt murder and aggravated battery after a jury trial in the Circuit Court of Alexander County, and was sentenced to a term of four to six years in the penitentiary for attempt murder. On appeal he raises numerous issues, only one of which we find it necessary to address: whether the court below committed reversible error in excluding the testimony of a prospective defense witness who had been in the courtroom during the testimony of other witnesses in violation of the sequestration rule announced by the court at the beginning of the trial. *fn1
The instant charges stemmed from a gunshot wound in the forearm suffered by one Donald G. Cook during a barroom brawl at a tavern, variously denominated as Ruby's Grove and the Stork Club, located in Future City, just north of Cairo. Cook testified that on the night of January 26, 1975, he was on his way with three friends from the suburbs of Chicago to Kentucky Lake. About 11 p.m., they stopped at the Stork Club to purchase some beer. They paid the cover charge of 75 cents apiece, bought beers, and found places to sit. There were 25 to 30 people in the establishment; all but Cook and his three friends were black. The tavern was dimly lit. There were "black lights" on the stage, where a man was playing records.
According to Cook, one of his companions, James Lubin, walked over to a nearby table where four young black women were sitting and asked one of them to dance. The woman began to shout at Lubin, and someone else came up and hit him. Cook and his other two companions were moving towards the altercation when one of them, Thomas Palmer, was knocked to the floor with a short club. Two men then grabbed Cook and spun him around. Another man, whom Cook identified as the defendant, then approached within five or six feet of him with a small-caliber gun, which he fired into the floor in front of Cook. He then pointed the gun at Cook's head, said that he was going to kill him, and pulled the trigger. Cook threw up his hands and was struck by a bullet in the left forearm. He fell to one knee and watched his assailant run away. As he got up, someone else hit him in the mouth. When he and his friends were able to leave the tavern, they went to the Cairo hospital. Later that night Cook was transferred to another hospital in Paducah, Kentucky. The bullet shattered the bone in his left forearm, necessitating the placement of a three-inch steel plate in his arm.
Cook testified that he described his assailant to police as a slender black man about six feet tall, wearing a light sports coat and a dark shirt open at the neck. The man was not, according to Cook, wearing denim clothing. The day after the shooting, while he was still in the hospital, Cook was unable to identify his assailant from photographs. About six days later, however, he selected a photograph, which he testified was that of the defendant, from several pictures brought to him by the police. None of the officers to whom Cook gave his description, or in whose presence he made the photographic identification, was called to testify, nor were the photographs or any record of the photographic identification introduced into evidence.
The State's second witness was Thomas Palmer, whose account of the incident was substantially the same as Cook's. He testified that as he approached Lubin he was clubbed across the forehead and knocked to the floor. When he got up he heard a shot. He looked in the direction of the shot and saw a man, whom he identified as the defendant, fire a second time. He said that he saw the defendant later that night at the hospital in Cairo, and told one of the police officers that he had seen the gunman. He testified that he selected the defendant's picture from some 15 shown to him by police the day after the shooting.
Palmer denied offering any of the young women at the next table money to have sexual intercourse with him. He said that he asked one of the girls if she wanted to dance and she began swearing at him. He testified that he had originally told the State's attorney's investigator that Cook's assailant was black, under 30, five feet eight inches tall with a medium build. In court, however, when Palmer, who was six feet one inch tall, stood next to the defendant, they were about the same size. His in-court description of the clothing worn by the man who shot Cook was similar to Cook's. The light sports coat, he said, had a kind of houndstooth check. Shortly after the incident, however, Palmer had told the investigator that the assailant was wearing a green shirt and pants.
Connell Smith, Jr., a State police detective, and James Hunt, Jr., an Alexander County deputy sheriff, then testified as to the chain of custody of two spent .25 caliber casings and one slug recovered by Hunt at the Stork Club. The casings and slug were admitted into evidence over objection of the defendant.
Hunt testified that he arrived at the tavern about 11:30 the night of January 26, about half an hour after the shooting. When he arrived, the door to the establishment was not locked, and a number of people were still there. Although he knew there had been a shooting, he did not search for a gun or conduct an investigation right away; instead, he waited until the place cleared out. Other officers arrived on the scene five or ten minutes later. When Hunt did execute a search, he found no guns. The defendant was among the patrons still there when Hunt arrived. The officer "used reasonable force," as he put it, to get the defendant out of the way during his investigation. He did not know how the defendant was dressed. No scientific tests were conducted to determine whether the defendant or anyone else had recently fired a gun.
J. Reid Abercrombie, the Alexander County clerk, testified that Ruby's Grove, the former Stork Club, had been licensed to sell liquor on January 26, 1975. The State moved, without objection by defendant, that the court take judicial notice of section 12b of the Liquor Control Act (Ill. Rev. Stat. 1975, ch. 43, par. 133), which provides that no person shall be denied the full and equal enjoyment of the accommodations of any place licensed to sell liquor. After the court read this statute to the jury, the State rested its case.
The first four witnesses for the defense were Floretta Avant, Barbara Holder, Mary Holder, and Ida Duncan, who had been sitting at the table in the tavern near the four white men before the shooting. Floretta Avant testified that shortly after the men entered, one of them came over and offered to buy her a drink. When she declined, he offered her money "[f]or my body" and put his hands on her. She cursed him and he eventually returned to his seat. Later, another of the men came over to the young women's table and "said and did the same thing. Only he didn't leave." Mary Holder hit him over the head with her purse, but he still wouldn't leave. A preacher named Bill Land came over and told the man to leave the women alone, but "[t]he guy got smart with him." Then James "Switch" Wilson came over to the table, the man shoved him and swung at him, and a fight broke out.
Barbara Holder's account was similar. Both men who approached their table, she testified, "kept on rubbing on me and feeling on me" after she told them to leave and "asked me did I want to make some money." The second one "wouldn't take no for an answer," even after she threatened to hit him with a beer bottle. When Wilson came over to the table, the white man swung at Land but hit Wilson instead, setting off the fight. She had seen the defendant earlier in the evening, standing at the bar. He was wearing a blue jean outfit. She said that the tavern was dark, lighted by a black light and a "psychedelic light" that flashed rapidly on and off.
Mary Holder gave a similar account. She too had seen the defendant at the bar, wearing a blue jean outfit.
Ida Duncan testified that she saw the second white man offering a $20 bill to Barbara Holder. She also had seen the defendant standing at the bar, but didn't notice how he was dressed. Asked about the lighting in the tavern that night, she said that there were "flashing lights." All four of the young women ran to the restroom after the fighting broke out; none of them saw the shooting.
The one defense witness who did claim to have seen the man who fired a gun was the Reverend William L. Land. He identified himself as pastor and administrator of social programs of the First Community Baptist Church in Atlanta, Georgia; he was also a special deputy sheriff in Fulton County, Georgia. On January 26, 1975, he had been in Cairo to officiate and deliver the eulogy at the funeral of the grandfather of the Reverend Charles Koen. Later that evening, he had followed the defendant and some other people out to Ruby's Grove to listen to some music. He went in the Reverend Koen's car, arriving about 10 or 10:30 p.m. He had noticed that the women were becoming upset, and could see an explosive situation developing, so he tried to talk the man into leaving the women alone. When the man lunged at him, Land executed a defensive karate movement and the man hit Wilson instead. Then "[t]he place blew."
Land testified that he saw a medium light-skinned man with a small build, whom he did not know, fire into the air. Later, he saw the owner of the tavern and the owner's father with a .38 revolver and a shotgun, respectively. When Land heard the owner tell the deputy sheriff that Wilson had been in the fight and had had a gun, Land informed Hunt that Wilson had not been the one with the gun, that it was "a guy of smaller build, light skin guy who shot." Land testified that the man who fired the shot was about five feet seven or five feet eight inches tall, and weighed 150 to 155 pounds. Later, Land observed an altercation between Deputy Sheriff Hunt and the defendant in which Hunt hit the defendant in the face with the butt of his shotgun. Land had met the defendant on one previous occasion. He said that the defendant was wearing a dungaree suit on the night of the shooting. Land estimated that the visibility in the place was only above five or six feet because of the black light and the strobe light.
The next defense witness was Marvin Smith, the disc jockey at the tavern on the night in question. He testified that in addition to playing records, he was in charge of operating psychedelic lights and strobe lights, which he described: "[A] psychedelic light is a light of different colors, a variety of colors and they are operated by the speaker system, by the sound through the speakers. A strobe light is a bright white light and it operates on the flashing system. It throws a light beam seconds apart." He said that at the time of the fight, the place was very dark except for his lights. Over objection, Smith was permitted to demonstrate his strobe light to the jury
Kevin Crawford next testified that he was sitting at the bar in the tavern the night of January 26 and heard two shots ring out. At that time, he testified, the defendant was also sitting at the bar. The defendant was wearing a blue jean top and blue jeans.
Finally the defendant, Bobby Joe Johnson, took the stand in his own behalf. He testified that he had attended a funeral on the afternoon of January 26, had then gone to the home of the nephew of the deceased, and arrived at the Stork Club about 10:30 p.m. He was standing at the end of the bar when the fight broke out; he couldn't see what was happening because of the partition separating the bar from the dance area. He testified that he neither had nor fired a gun, and had never seen Donald Cook prior to the trial. Johnson said that he had gone to the hospital later the night of the shooting. He was wearing a blue jean demin suit.
At this point in the proceedings, the following colloquy took place out of hearing of the jury:
"MR. HARRIS [defense counsel]: Your honor, I would be prepared to rest. However, I have just found out that I have another witness who has violated the rule on witnesses. He's Pat Flynn from Land of Lincoln Legal Aid. He said [he saw the defendant] the next day direct from the hospital and at that time the man had on a blue jean outfit. I would like to put him on.
THE COURT: You say it's someone that's been in the room?
MR. HARRIS: Yes, it's a young lawyer for the Land of Lincoln. He's been observing as a ...