APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Following a jury trial, Duffie Clark (defendant) was convicted of the murders of Bobby Leonard and Helen Navarro on September 1, 1971, and sentenced to a term of 40 to 140 years. Co-defendant, Ray Stafford, was found not guilty of the murders. Defendant appeals from his conviction, raising 10 issues for our consideration: (1) whether he was proven guilty beyond a reasonable doubt; (2) whether the trial court erred in denying his pretrial motion to suppress certain physical evidence seized from his home after he had been removed to the police station; (3) whether the trial court denied him his rights to confront the witnesses against him and to compulsory process when it quashed a subpoena calling for the production of certain juvenile court records for use in the cross-examination of the principal State's witnesses; (4) whether the trial court allowed improper cross-examination of the defendant and highly prejudicial evidence on rebuttal; (5) whether the trial court placed improper restrictions on his cross-examination of the State's witnesses, and thus denied him a fair trial; (6) whether the refusal of the trial court to allow the introduction of the results of a polygraph examination was a denial of due process; (7) whether the trial court denied him due process when it allowed the prosecution to impeach a defense witness using a police statement which was not tendered to the defense in response to its discovery motion; (8) whether the State knowingly presented false testimony; (9) whether the trial court erred in refusing to dismiss the indictment due to alleged spoliation of evidence; and (10) whether, under the totality of the circumstances and the cumulation of all the errors, he was denied a fair trial. *fn1
Between 7:30 and 8 p.m. on September 1, 1971, Bobby Leonard and Helen Navarro were shot and killed near the intersection of 51st Place and Peoria Street in Chicago. Police officers arriving at the scene gave varying accounts of the events which followed. Sergeant Kneisley testified that he was the first police officer to arrive at the scene. He spoke briefly with Bobby Hisson, who said that a boy named "Stan" had done the shooting and that he knew where Stan lived. Hisson got into the squad car with Kneisley and drove to the area of 5213 S. Green Street, about 1 1/2 blocks from the scene of the shootings. By the time they arrived, other police officers were at the scene, bringing defendant and two other black males out of the house. Hisson then identified defendant to Sergeant Kneisley as Stan, the shooter.
Another police officer, Officer Gallagher, testified that he spoke to a group of children, including Hisson, at the scene of the crime. He obtained a general description of the shooter as wearing a green, sleeveless t-shirt and dark or khaki-colored pants. Gallagher testified that Hisson provided most of the description and that Hisson had given him the name "Stan" and the 5213 S. Green address. Gallagher then proceeded to that location, where he and his partner observed a group of four black males standing in front of the house. One of them matched the description of the shooter. Upon approaching the group and identifying themselves as police officers, the fourth ran into the house. The officers pursued. Gallagher entered a bedroom and observed defendant pulling on a pair of white pants. He was not wearing a shirt. Gallagher placed defendant under arrest. Other police officers arrested Joe Gilliam and Andrew White. As Gallagher led defendant from the house, he heard Bobby Hisson tell Sergeant Kneisley, "That is the man." Ray Stafford, the co-defendant, was arrested later that evening.
Defendant was taken to the police station and placed in a lineup. He was positively identified as the shooter by Margie Flynn, Bobby Hisson, Albert Radke, and Timothy Day. All four of these witnesses also gave statements to the police. On September 18, 1971, the grand jury returned indictments charging defendant, Ray Stafford, Andrew White, and Joe Gilliam with the murders of Bobby Leonard and Helen Navarro. *fn2
Prior to trial, defendant moved to suppress certain items of clothing, including a green, sleeveless t-shirt taken from defendant's home without a warrant by police officers after he had been taken to the police station. Following a lengthy hearing, the trial court denied the motion.
At trial the State's case was based on the positive identifications made by Hisson, Flynn, Radke, and Day. The defense was mistaken identification, alibi, and fabrication of testimony, especially that of Timothy Day.
Bobby Hisson testified that at approximately 8:45 p.m. on September 1, 1971, he and Margie Flynn were having a conversation with Helen Navarro on south Peoria Street, just north of an alley which intersects Peoria Street and runs east and west between 51st Place and 52nd Street, when they saw a man, whom he identified as the defendant, standing in the alley holding a short-barrelled shotgun to his shoulder. The man said, "Move, girls," and fired two shots in their direction. Hisson attempted to push Flynn out of the way and fell to the ground. From his position on the ground, Hisson could see the gunman, a man he had known previously by the name "Stan," fire three more shots. Stan was wearing a dark, sleeveless t-shirt and dark pants. Hisson looked away from the gunman to see where Flynn had gone. When he looked back, the gunman was gone. Helen Navarro lay on the sidewalk, a bullet wound in her right eye. (She died shortly after her arrival at a hospital.)
Margie Flynn corroborated Hisson's account of the sequence of the shooting. However, she saw two men standing in the alley, as well as three or four others standing behind the two. She described the shooter as a black man with a goatee, wearing a dark sleeveless t-shirt and dark pants. Flynn also positively identified defendant in court as the shooter.
Albert Radke testified that he had been playing in a vacant lot at 52nd Street and Peoria (just south of where the gunman had stood) with his friend Marky Miller at the time of the murders. The sound of two shots attracted his attention. He looked in the direction of the sounds and saw the defendant and Ray Stafford standing in the alley. Defendant was holding something up to his shoulder. Radke and his companion, frightened by the shooting, ran east on 52nd Street toward the latter's house, on 52nd just east of Green. En route, they passed the Richards' house, where Radke's mother was visiting on the porch with Mrs. Richards. When he reached Miller's house, he heard his mother calling him. He began to run back toward his mother when he saw three black men come out from a "gangway" between two buildings. The men ran south on Green Street and into another gangway on the east side of Green. He then saw defendant run out from another gangway. Defendant ran right past Radke. At this time defendant was carrying a rifle and was wearing a dark-colored "dago" t-shirt, dark pants, and sandals with white socks. Radke observed defendant set the rifle down on some stairs at "Nelson's house" when he heard Stafford yell, "Come here." Defendant picked up the rifle and ran toward Stafford.
Timothy Day testified that he also saw defendant, Stafford, and others standing in the alley. He had been sitting on a porch near 51st Place and Peoria when he heard the first two shots. He then walked toward the corner and heard more shots. When he reached the corner, he saw defendant, whom he had known previously as "Stan," holding a rifle to his shoulder. He also saw Stafford holding a pistol. He could not see what kind of pants defendant wore because some bushes partially obstructed his view. He could see, however, that defendant wore a green, sleeveless "dago" t-shirt. He then saw defendant and Stafford run through the vacant lot toward 52nd Street.
On cross-examination, Day was confronted with a statement he had given police shortly after the shootings in which he stated that he had seen seven or eight blacks walk north on Peoria and fire the shots eastward on 51st Place. His explanation was that his directions were mixed up. He denied the substance of the statement and later in his testimony, he denied making the statement at all.
Later that evening, Hisson, Flynn, Radke, and some of their respective parents were taken to the police station where defendant was being held. Flynn and Hisson were taken there in the same police car, but denied talking about the crime en route. At the police station they all waited together for several hours in the station commander's office until the lineup was conducted. There is conflicting evidence as to whether Timothy Day was also in the office. It was during this period of time that the defendant maintains that Hisson, for whatever personal motive, persuaded the others that defendant was the shooter.
The State also presented the testimony of Delores Coluzzi, who lived next door to defendant's family on Green Street. Her testimony was that she was sleeping in a front bedroom of her home when she was awakened at approximately 8:30 p.m. on September 1, 1971. The noise which had awakened her was something that "sounded like glass breaking." She looked out the window toward defendant's house and saw four black men, whom she knew, standing on the sidewalk. Defendant, wearing dark clothing, was among the group. A few minutes later she saw the men run toward 52nd Street. Defendant was in the lead, carrying an object approximately 1 1/2 feet long. She was still looking out the window five or 10 minutes later when the men returned, pursued by the police.
After defendant was removed to the police station, Officer Gallagher returned to defendant's home and recovered a green, sleeveless t-shirt and several other items of clothing. He did not find any khaki-colored or dark pants in defendant's bedroom. The murder weapon was not recovered.
Defendant, testifying in his own behalf, related that he was in his bedroom with his girl friend, Clemmie Jean Richmond, at the time of the killings. They had been together since 8 p.m. He heard the sound of glass breaking outside and he heard his mother scream. As he began to run outside, he was stopped and arrested by the police. He denied any knowledge of, or participation in, the Leonard-Navarro killings.
Clemmie Jean Richmond corroborated defendant's alibi. On cross-examination, however, she was confronted with the first of two statements she had given to police on September 2, 1971. Her account of the events of the evening ...