APPEAL from the Circuit Court of St. Clair County; the Hon.
J.F. CUNNINGHAM, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, O.D. Wade, was convicted by a jury in the circuit court of St. Clair County of the crime of murder and sentenced to the penitentiary for a term of not less than 35 nor more than 70 years. His petition for a new trial pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72) was subsequently denied. On appeal defendant raises the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether a witness was properly qualified to advance an opinion that more than one gun caused the holes found in the deceased's vehicle; (3) whether defendant's right to a fair trial was prejudiced by the court's admission of testimony relative to other crimes and a gun which defendant was carrying when arrested; (4) whether the court erred in not conducting a hearing to ascertain if juror bias was created as a result of defendant's perusal of the juror list; and (5) whether the court properly denied defendant's section 72 petition for a new trial on the basis that newly discovered evidence is not grounds for such a petition in a criminal case.
In the early evening hours of January 26, 1975, Glennon Rodgers, the deceased, was driving in East St. Louis a 1970 Chevrolet owned by the father of State's witness Cedric Taylor. Cedric Taylor and John Billops were passengers in the auto. Taylor was seated on the passenger side of the front seat and Billops was in the rear seat, behind Glennon Rodgers.
At approximately 6:30 p.m., when it was getting dark, this group was traveling south on 19th Street and came to the intersection of 19th and Central. This intersection is regulated by a four-way stop sign. There is a poolroom and a bar at the intersection. In the opinion of Cedric Taylor, this area was well lighted since light from these establishments combined with the illumination provided by street lights in the vicinity.
Both Taylor and Billops observed a white car parked on the east side of 19th Street. Billops described it as a 1965 Oldsmobile which he knew to be used by defendant, Elijah Parker, and Richard Hart. Cedric Taylor testified that when they stopped at the intersection Glennon Rodgers said, "It looks like O.D. Wade." John Billops also recalled his mentioning defendant's name, but he did not see anyone before or after the shooting occurred. Cedric Taylor testified that he saw defendant, Elijah Parker, and Richard Hart standing by the car parked near the poolroom. He further testified that after their car passed this group, O.D. Wade, armed with some kind of handgun, ran into the street, crouched down and fired on the car. Taylor stated that he heard six shots and that defendant was approximately 15 feet from the car and directly under a streetlight when he opened fire. The car went out of control after Glennon Rodgers was hit and both Billops and Taylor had to assist in stopping the auto. Glennon Rodgers subsequently died as a result of gunshot wounds to the back which damaged various internal organs.
In concluding its case in chief, the State offered the testimony of the police officer who arrested the defendant. Although the State had acknowledged in its opening statement that it was not contending that the .357 magnum handgun found on defendant's person when he was arrested was the murder weapon, the prosecutor elicited considerable testimony from the officer concerning the gun. The officer testified that when defendant was arrested the gun was fully loaded and concealed in defendant's clothing and that defendant had 12 other rounds of ammunition for the gun in his pocket. The prosecutor also elicited the officer's opinion that a .357 magnum will pierce a car's bumper. Photographic exhibits of the car as well as the testimony of Cedric Taylor revealed that there was a large hole in the car's rear bumper and a smaller hole in the trunk. Immediately following the examination of this officer, the court and counsel engaged in a discussion at side bar the result of which was an oral announcement by the court of a stipulation of counsel that ballistics would show that the weapon the officer was referring to was not the weapon used in the shooting.
Yvonne Jackson testified for the defense. Miss Jackson lived at 1310 So. 19th Street in East St. Louis on the day in question; the house at that location is next to the poolroom at 19th and Central. She testified that around 6:30 p.m., while standing on the porch, she saw a white car in front of her house. She further stated that a brown car drove by and Elijah Parker, the sole occupant of the white auto, got out of the car and fired three shots at the passing auto with a rifle while standing at the side of the road. The brown car subsequently swerved into the ditch on the east side of 19th Street, and Elijah Parker drove away. Miss Jackson testified she had known Elijah Parker for about three years. On cross-examination, she testified that she had first met him on the street in Rush City and that she had never been out with him or "with him" and characterized her association with him as "nothing." When recalled to the stand later in the proceeding, Miss Jackson testified, in response to questioning by the prosecutor, that she was pregnant by Elijah Parker and that she knew another girl was also pregnant by him. She denied that her feeling toward him was one of hatred but admitted that she had testified earlier, out of the presence of the jury, that she hated him. Miss Jackson also related in the aforementioned testimony outside the presence of the jury that she had given a written statement of her observations to two East St. Louis police officers. This report was not included in the State's file which was copied for purposes of discovery.
The defendant testified in his own behalf and offered an alibi defense. Defendant Wade testified that he was at the East St. Louis residence of Edna Bolden at the time of the shooting. Mrs. Bolden's residence is at 1517 South E Street. He further testified that Elijah Parker came into the Bolden residence and told him, in the presence of Mrs. Bolden, that he had seen Taylor, Billops, and Jenks (Glennon Rodgers) going down 19th Street and had shot at them and believed he had hit one of them. According to defendant, no one responded to this story and Parker left after 15 or 25 minutes. On cross-examination, defendant testified that on January 26 he had the gun found on him when arrested in a fully loaded condition. This answer was made after his counsel made an unsuccessful objection that such question was irrelevant since the State had conceded that it was not the murder weapon.
The testimony of Edna Bolden was offered in corroboration of defendant's alibi. She testified that defendant, Hart and Parker were all at her house on January 26. She stated that around 7:30 in the evening Parker took Hart's white car and went up on 19th Street, returning at 6:00 p.m. to relate a story that Cedric Taylor got out of a car occupied by John Billops and the deceased and fired upon him. She further testified that he said he returned the fire and got one of them. According to her testimony, the intersection of 19th and Central is one block from her house. She stated that she left her home shortly after Parker arrived and spent the night at her daughter's house. She also testified that her daughter, Rosalee Branch, is the other woman pregnant by Parker. On cross-examination, the prosecution attempted to impeach her testimony by comparing her answers concerning the times when people came and went and the date of this incident with the inconsistent answers she gave at a previous hearing before the trial judge alone.
After being fully advised of his rights, Elijah Parker chose to testify for defendant in surrebuttal over the recommendation of his counsel that he not testify. He testified that on the night in question he left the Bolden residence, where defendant and Richard Hart were, in Hart's car to go to Yvonne Jackson's. He parked in front of her house and noticed a car parked across the street, facing south, which contained three people. As he walked around the back of his car, he heard shots and was hit in the back. He got a rifle out of his car and fired at the car as it sped away. He testified that the car was halfway through a left turn when he fired and that it thereafter went out of view behind a building. He further stated that he then drove to the Bolden house and told defendant that someone had shot him and that he believed he had hit one of them. He then walked off and passed out somewhere down the street and awoke in the hospital.
In its case in rebuttal the State offered the testimony of police detective John Thurman. Detective Thurman testified that on the evening of January 26 he took part in the investigation of the Rodgers' shooting. While he was in the vicinity of the Bolden residence, he heard shots and began investigating the area near to 1625 Wilford, which is the location of an abandoned house and empty field. He called for assistance at 8:42 p.m. and found Elijah Parker lying wounded in the field approximately one-half hour later. Parker told him he had been shot while in the field and, when asked by Detective Thurman who shot him, he replied that the detective had.
Raymond Herr, an investigator for the State's Attorney's office who had examined the Rodgers' vehicle, testified for the State in rebuttal to Yvonne Jackson's testimony that Elijah Parker alone shot at the car driven by Glennon Rodgers. He referred without objection to the hole in the bumper of the deceased's car as a "large caliber hole" and the hole in the trunk as a "small caliber hole" while testifying as to the location of the two holes in the rear of the auto and in the front and rear seats of the car as depicted in the photographic exhibits. Mr. Herr testified that prior to his becoming an investigator he was an East St. Louis police officer for 10 years. He had fired guns ranging from small caliber handguns to high powered rifles and shotguns and had had occasion to observe the results of the impacts of these bullets on metal objects both as a police officer and an investigator. The court thereafter overruled an objection that he was not qualified to offer an opinion whether the two holes were made by the same weapon. Mr. Herr testified he believed two different weapons made the holes.
Defendant contends that he was not proved guilty of murder beyond a reasonable doubt. He argues that, when considered in relation to all the other evidence in this case, the testimony of eyewitness Cedric Taylor is not sufficient to convict him since it was contradicted by the testimony of Yvonne Jackson and Elijah Parker that Parker was the only one shooting at the Rodgers' vehicle and the alibi testimony of defendant and Edna Bolden. He also argues that the State presented a "single gunman" theory at trial which makes his conviction unjust in view of the fact that Elijah Parker was subsequently convicted of the same murder.
• 1 It is fundamental that a reviewing court will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of the accused's guilt. (People v. McDonald, 62 Ill.2d 448, 343 N.E.2d 489.) After examining the evidence of this case in light of the relevant ...