APPEAL from the Circuit Court of Vermilion County; the Hon.
RALPH S. PEARMAN, Judge, presiding.
MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:
The defendant, James Albert Dumas, was charged by a Vermilion County information with murder and armed robbery, violations of sections 9-1 and 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1, 18-2). The defendant was tried before a jury, found guilty of both offenses and thereafter sentenced to 100 to 150 years imprisonment for murder.
On August 21, 1975, Robert Kirts, the manager of a Shell gasoline station in Danville was working with one of his employees, 15-year-old David Grinestaff. At 8:55 p.m., Grinestaff entered the station building to prepare for closing and at 9:30 p.m., Kirts, who was working on an automobile in the bay, heard a gun discharge in the station's office. After turning around and rushing into the office, Kirts discovered that Grinestaff had been shot and that another boy was present in the office. The other boy was one of two boys who had been at the station since at least 8:55 p.m. when Kirts returned from supper. Kirts immediately called for the police and an ambulance, noticed that the cash register drawer was open and that he and Grinestaff were by then alone on the premises. Kirts did not observe anyone fleeing the premises.
Grinestaff was thereafter transported to the emergency room of St. Elizabeth's Hospital where he died as a result of chest and arm wounds at 1:25 a.m. on August 22, 1975, before the police could interview him.
At trial, Thomas Parham, Darrell Halbert and Jill Landers testified that they were driving past the Shell station in separate automobiles at the approximate time that the aforementioned incident occurred. The three witnesses testified that they observed two young black boys running from the station after a shot was fired. Parham and Halbert thought the two were about 16 or 17 years old. Parham noticed that one of the boys was wearing a hat and Landers observed that one of the boys was armed with a long-barreled gun.
Late in the evening of August 21, 1975, and early the next morning, the police conducted a ground search of the area near the gasoline station and discovered a hat (People's Exhibit No. 3) next to a phone booth just east of the station, a "tan loafer-type shoe" (People's Exhibit 4A), a braided shoe (People's Exhibit 4B) and a pair of blue trousers (People's Exhibit No. 5).
On August 17, 1975, 4 days prior to the murder and robbery, defendant was arrested for running a red light. The defendant was in the process of taking his vehicle to the Danville Holiday Inn where his uncle, Lennel Dumas, was going to pick him up. The uncle was following defendant's car when he was arrested, but the arresting officer permitted the defendant to proceed to the Holiday Inn where he left his car, a gun and four bullets with the uncle. At trial, the uncle testified that the gun was the same as People's Exhibit No. 2, a long-barreled .38 special. The defendant retrieved the gun later that same evening. On both occasions, defendant was wearing shoes which the uncle identified as People's Exhibits 4A and 4B. Defendant's cousin, Ernest Rhodes, testified for the defense that Lennel Dumas returned the gun and bullets to the defendant at Rhodes' house, with Rhodes present.
Ivory Isom testified that he met the defendant on the morning of August 21, 1975, when he appeared at Isom's home with Leroy Mason. The defendant was attired in a tank top, demim hat similar to People's Exhibit 3, blue pants and shoes with brown tweed laces similar to People's Exhibits 4A and 4B. This outfit was similar to the outfit that witnesses said was worn by one of the perpetrators of the crime.
The defendant, Isom and Mason then joined Donald Orrington in Orrington's car and, while driving past the Shell gasoline station where Grinestaff's murder and the armed robbery occurred much later that same day, the defendant said, "[s]omething about making a hustle" and that "* * * the gas station across the street * * * seemed like it'd be an easy place to make a hustle." The defendant exited from the car and asked its occupants to let him know if "[i]t was clear to make his hustle." Isom did not see the defendant enter the gas station but the three picked him up after they circled the block. Afterward, they let defendant out near Ernest Rhodes' home.
On August 29, 1975, the defendant was arrested on a bus at the Union Bus Depot. When informed he was under arrest, the defendant rushed at and attempted to wrest a shotgun from a police officer. People's Exhibit No. 2, a long-barreled .38 Colt revolver, was discovered in the defendant's possession at the time of his arrest.
At trial, Larry Lorsbach, an Illinois Bureau of Investigation criminalist testified that he had examined People's Exhibits Nos. 2 (defendant's revolver) and 14 (a slug removed from the decedent's body) and that, while he found similarities between the bullet's and weapon's markings, owing to the condition of the slug, he could not positively say that the slug had been fired from the defendant's revolver. Professor Joseph Nicol, a professor of criminal justice at the Chicago Circle campus of the University of Illinois and a prior superintendent of the Illinois Bureau of Investigation testified, after examining the exhibits, that there was a "* * * strong probability that the evidence bullet, People's Exhibit 14, was fired from the .38 Special Colt, People's Exhibit 2."
On appeal, the defendant has presented essentially three issues for our review: (1) whether the court committed reversible error in allowing allegedly inadmissible evidence and prejudicial closing argument to be presented to the jury; (2) whether defendant's guilt has been proved beyond a reasonable doubt, and (3) whether defendant's conviction must be reversed because he neither waived nor was charged by indictment.
The defendant contends that the State improperly bolstered the testimony of Darrel Isenberg by eliciting a statement from Isenberg about his submitting to a polygraph examination. Isenberg's statement, however, was clearly inadvertent, not prompted by the State and did not go to a material issue concerning the defendant's innocence or guilt. Rather, in response to a preliminary question intended to establish why the witness was in the county jail where he spoke with the defendant, the witness blurted out:
"I took a lie test to prove to you that I wasn't guilty of those charges, and, at the same time, I was ...