APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Marcus Hall and Melvin Lucas (defendants) were found guilty of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1) and attempt armed robbery (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 18-2). Hall and Lucas were sentenced to 35 to 150 and 50 to 150 years respectively for murder. Each was also sentenced to consecutive terms of 4 to 12 years for attempt armed robbery. Defendants have filed separate appeals.
Defendant Hall advances five contentions: the trial court erroneously allowed the State to introduce incompetent substantive evidence under the guise of impeachment; the granting of a previous mistrial in this case precluded the subsequent prosecution; the trial court should have granted his motions for severance and substitution of judges and the sentences imposed were excessive.
Defendant Lucas raises two issues: improper impeachment as raised by Hall and the sentences exceed the permitted statutory maximum.
In view of the separate briefs and issues, the appeals will be discussed separately. We will first state the pertinent facts common to both.
On July 16, 1973, at approximately 9:30 p.m., Gwendulyn Williams, 18 years old, was in her vegetable garden in Chicago. She noticed a man standing next to a car parked under a streetlamp some 15 to 20 feet away. She also saw defendants Lucas and Hall, both of whom she had known for over a year, walk across the street together toward the man. Lucas had a towel in his hand and she noticed something in the towel. As they approached the man she heard Lucas say, "Stone Love, this is a stick-up." As the man reached into his pocket she heard a shot. She saw the man stagger and fall. The defendants ran off through a playlot across the street. She immediately went to her apartment and called the police. She returned to the scene and saw Lucas on the street about 10 minutes after the shooting. He said to her, "I know you seen us there, Slim. You won't tell nobody, will you?" She told him that she would not.
Williams also testified that approximately 3 hours before the shooting she overheard a conversation among a group of boys at a playlot. Both defendants Hall and Lucas were present. They spoke about money needed to provide bail for a friend. There was also mention of a gun. On cross-examination she testified that she did not hear Hall say anything at that time.
Also on cross-examination she testified that she had previously given the police a statement in which she said that Lucas crossed the street first and Hall followed behind him. She stated that this statement was not the truth. On redirect examination she testified that at a preliminary hearing subsequent to the giving of this statement, she had denied its contents. She testified she had done so because she had been threatened and she didn't want to be "beat up" or "jumped on no more."
John Harris testified that he had known Hall for "about a year" and Lucas for a "couple of years." At approximately 6 p.m. on the night of the shooting, Lucas and Hall asked him if he "wanted to stickup." Harris refused to join them. In addition, Hall asked Harris if he had any shotgun shells. Hall said that the stickup was to obtain money to bail a friend out of jail.
At the time of the shooting, Harris was walking some 200 feet to the west of the victim's car. He saw the victim standing under the streetlight with Lucas and Hall. There was a "tussle" and "either Marcus [Hall] grabbed the man or the man grabbed Marcus." Lucas pushed Hall to one side and there was a flash accompanied by a "loud boom." The flash came from a towel wrapped around Lucas's hand. Later that night Harris met Lucas at a playlot and Lucas said to him, "I shot that mother fucker."
Cross-examination of Harris brought out that he had not informed the police of what he saw until 14 months after the incident occurred. At that time he was arrested for intimidating Williams. He was questioned by the police in regard to the shooting. After telling the police what he knew, he was allowed to leave. He was never booked for the alleged intimidation.
On redirect examination Harris stated that he did not intimidate Williams, but had merely warned her off. He further stated that no one made any promises to him in return for his testimony against the defendants.
Next, the State requested the court to call Cleo Jones as a court's witness. The State urged that it was unable to vouch for Jones's veracity because he had made contradictory statements prior to trial. Counsel for both defendants objected on the ground that the State's sole purpose was to put in evidence, under the guise of impeachment, prior statements by the witness inculpating the defendants. Jones was called as a court's witness and the State was allowed to cross-examine him.
The State first elicited from Jones a series of denials as to any knowledge of the occurrence. Next Jones was questioned at length concerning a written statement that he signed at police headquarters a few days after the shooting. The statement was basically similar to the testimony of Williams and Harris except that Jones stated therein that Hall ran over to the car and reached for the victim's pocket after Lucas had begun the attempted robbery but before the shot was fired. Using verbatim language from the statement, the prosecutor asked the witness if many of the questions appearing in the statement were put to him and if the responses ...