APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendants, Jerry and Leon Thomas, were charged by indictment with the offense of murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 9-1). Upon a jury trial both defendants were found to be guilty as charged. Judgments were entered upon the verdicts and each defendant was sentenced to serve a term of confinement in the Illinois State Penitentiary of 20 to 60 years.
From entry of the judgments of conviction defendants appeal contending: (1) that the evidence properly adduced at trial was insufficient to establish their guilt beyond a reasonable doubt; (2) that the trial court erred in admitting into evidence certain hearsay statements characterized as dying or spontaneous declarations; (3) that certain conduct of the prosecution in presenting its case to the jury was improper and served to deny defendants a fair trial; and, (4) that the trial court committed prejudicial error in its instructions to the jury.
A review of the evidence adduced at trial establishes that at approximately 2:30 a.m. on October 14, 1972, three armed intruders entered a Martin Service Station located at Sacramento and Taylor Streets in Chicago, Illinois. Following an exchange of gunfire between the assailants and the lone attendant, Ollie Bell, the intruders fled the scene carrying an injured accomplice. Bell, who had also been struck by gunfire, fell mortally wounded. Quantities of coins, cigarettes and other items of inventory were found strewn about the station's office.
The assailants' escape was observed by Jack Porter and Janella Profit. Both Profit and Porter testified that as they approached the station at approximately 2:30 a.m. on the date in question, each heard the sound of shots emanating from within the station, prompting them to run to the porch of a nearby home. From this vantage point, approximately 50 feet from the station and aided by illumination provided by several electrical lights positioned on the street and about the station, Porter and Profit observed three male Negroes exit the station building. Two of the men were dragging a third man between them, supporting him by his arms in such a manner that the man's feet and knees were in contact with the ground.
Jack Porter testified that he particularly observed the individual being assisted from the building and indicated that the man was "in his twenties," of slim stature, approximately 6 feet in height and wore grey, dark checkered trousers and a brown leather jacket. Janella Profit testified that at the time of the escape and for a period of 10 to 15 seconds she observed the face of the man being dragged from the area. Profit subsequently identified defendant, Jerry Thomas, as the latter individual.
Shortly after 2:30 a.m., two additional individuals, Marshall Unseld and Lonnie Mathis, entered the station's lot and drove near its office where they observed a bullet hole in the door. Upon further investigation, Unseld discovered Ollie Bell prostrate on the office floor and beckoning for assistance. Mathis entered the building and recovered two weapons, a .38 calibre revolver held by Bell and a .45 calibre pistol lying on the floor. Mathis also observed "a lot of change, glasses, tissues [and] packages of cigarettes" strewn about the floor.
Mathis testified, over defense objections, that he had a conversation with Bell on this occasion in which Bell indicated that he had been shot in the stomach and hand. Bell also indicated that one, or perhaps two, of the assailants had also been wounded in the exchange of gunfire.
Chicago Police Department Officer Lee Seward testified that he arrived on the scene shortly thereafter and also conversed with Bell. According to Seward, Bell informed him that three black males had tried to rob him; that they "shot it out"; and, that at least one of the assailants had been wounded.
Officer Seward accompanied Bell to hospital facilities where Bell repeated his earlier statements and, when questioned regarding a description of the assailants, indicated that the assailants dragged away one of their number who was wearing checkered trousers. Attempts to resuscitate Bell proved futile and he expired of his wounds at 4:20 a.m. on October 14, 1972.
Both defendants had been admitted to Cook County Hospital with gunshot wounds at approximately 3 a.m. on October 14, 1972. On this occasion, Chicago Police Department Investigator William Boyd interviewed Leon Thomas who indicated that he and Jerry Thomas had been shot by several armed robbers near a restaurant located in the vicinity of Homan Avenue and Lake Street.
Investigators Percy Hollins and Robert Wasmund subsequently questioned defendants at hospital facilities regarding the circumstances surrounding the infliction of defendants' injuries. Jerry Thomas informed Officer Hollins that he did not know who had shot him, the location of the assault or why he was shot. Leon Thomas, on this occasion, informed Officer Hollins that he had been shot during the course of an armed robbery which took place near Kedzie Avenue and Franklin Boulevard.
Investigator Hollins also testified that he interviewed Sally Thomas, the mother of Leon Thomas. According to Hollins, she indicated that her son had told her that he and Jerry Thomas had gone to purchase some food on the occasion of the shooting and had briefly stopped in a gas station. As they were preparing to leave, four male Negroes approached, demanded and obtained six dollars, and thereafter shot defendants.
Investigators Hollins and Wasmund also interviewed Jack Porter who described the clothing of the man who had been dragged from the service station. The investigators obtained the clothing worn by Jerry Thomas at the time of his admittance to the hospital, including a pair of grey and black trousers torn at the knee and a pair of black suede boots bearing abrasion marks on the toes. Porter identified the trousers as being the same type as those worn by the injured felon.
At Cook County Hospital, Investigator Hollins also spoke with an individual who identified himself as Larry McBride. McBride informed the investigator that he had driven Jerry and Leon Thomas to the hospital and that the latter had informed him that their injuries were sustained during the course of an armed robbery which took place at Kedzie Avenue and Franklin Boulevard.
On October 17, 1972, Investigator Frank Bertucci also interviewed Leon Thomas. The latter indicated that he and Jerry Thomas had been shot by one of three black men who had robbed them in the vicinity of Homan Avenue and Walnut Street. Bertucci also testified that Leon Thomas had informed him that both defendants were driven to the hospital by one Barry Blackman. Leon Thomas was unable to provide Investigator Bertucci with a description of his assailants.
On October 19, 1972, Investigator Bertucci showed photographs of 10 men to both Jack Porter and Janella Profit. Profit identified a photograph of Jerry Thomas as portraying the man who had been dragged from the service station. On November 1, 1972, Profit also viewed and identified Jerry Thomas as the latter was recuperating in Cook County Hospital.
Medical testimony adduced at trial established that Jerry Thomas had sustained a bullet wound to the left "delta" area of his left upper arm which bullet was still lodged within his body. Leon Thomas was wounded on the posterior aspect of his left arm by a bullet which passed through his body and was not recovered. He was also wounded by a bullet which entered the posterior-lateral aspect of his left chest. The bullet which caused this injury was not medically extracted. As a consequence, none of the bullets which caused the defendants' wounds were recovered.
No fingerprints suitable for comparison were recovered from the scene. Ballistics evidence positively established that a bullet recovered from Bell's body was fired from the .45 calibre pistol recovered from the floor of the station's office. Serological tests performed upon this exhibit as well as a cigarette package recovered from the scene evidenced minute quantities of Type A blood. The clothing worn by Jerry Thomas was also tested for the presence of blood. The checkered trousers bore traces of Type A bloodstains. Both Ollie Bell and Leon Thomas evidence blood Type A; Jerry Thomas evidences blood Type O.
Post-mortem examination of the body of Ollie Bell revealed that he sustained wounds from three .45 calibre bullets. Two of these wounds were in the abdomen ...