APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants Johnny Smith and Hardy Lewis were each convicted of two counts of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1), one count of attempt murder (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4 and 9-1), three counts of attempt armed robbery (Ill. Rev. Stat. 1973, ch. 38, pars. 8-4 and 18-2), and one count of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4). Both defendants were sentenced to terms of 100 to 200 years for each murder count; terms of 10 to 100 years for attempt murder; and terms of 6 years, 8 months to 20 years for each count of attempt armed robbery, all sentences to run concurrently. The defendants were not sentenced on the aggravated battery count.
On appeals consolidated for review, defendants raise eight issues for our consideration: (1) whether there is sufficient evidence to sustain the convictions; (2) whether the State improperly used police testimony to bolster the identification made by the eyewitness; (3) whether the tendering of an admissions instruction was improper; (4) whether the State introduced improper rebuttal testimony; (5) whether the trial court erred in denying defendants' motion for a new trial; (6) whether the introduction of pictures of the murder scene was error; (7) whether defendants were improperly convicted of both attempt murder and aggravated battery; and (8) whether the sentences are excessive.
We affirm defendants' convictions and sentences for murder, attempt murder and attempt armed robbery but vacate the defendants' aggravated battery convictions.
A review of the evidence establishes that shortly before noon on April 20, 1974, Henry Johnson and Joseph Garrett were shot and killed and Delois Johnson was shot and injured in the Johnson apartment located at 1742 West 77th Street in Chicago, Illinois.
At trial, the State's principle witness, Delois Johnson, gave this eyewitness account of the incident. At approximately 11:40 a.m., on the morning of April 20, 1974, Delois Johnson returned from an errand to the apartment where she lived with her husband, Henry Johnson, and her daughter. Just as she reached her second floor apartment she heard the front hallway buzzer. She called down and asked who it was. A voice answered, "Joe." Delois Johnson then informed her husband, Henry, who was inside the apartment, that it was a person whom she recognized as Joseph Garrett at the door. Henry told her to buzz Garrett in. Garrett entered the apartment followed by two men whom she had never seen before but subsequently identified as defendants, Smith and Lewis.
After entering the apartment the defendants, to Garrett's apparent surprise, produced handguns and ordered Garrett, Delois and Henry Johnson to lie on the couches. Lewis asked Henry Johnson where the money was and began searching the apartment while Smith held a gun on the others. Lewis again asked for money but Henry Johnson reiterated that he had none.
Grabbing an electric iron and extension cord Lewis ordered Garrett and the Johnsons into the bathroom. They were told to place their faces and hands into the half-filled tub. Lewis wrapped the extension cord around their bodies and told them he was going to electrocute them. Lewis then threw the iron into the bathtub and a shot went off, hitting Henry Johnson. A second shot struck Delois Johnson in the back of the head and a third hit Garrett, killing him.
Delois Johnson, who had not been killed, feigned death. She heard Smith yell at Lewis, "What you doing man, what you doing." Before the defendants left the apartment a fourth shot was fired into the shoulder of Delois Johnson, who then blacked out. The defendants had been in the apartment about 20 minutes. Delois Johnson testified that during that time the defendants did not attempt to conceal their identities.
Upon regaining consciousness Delois Johnson called her mother, whom she told to call the police. In response to this call her brother-in-law, Cedell Johnson, and his wife arrived at the apartment. Approximately five minutes later police officer Baker arrived at the scene. Officers Meany and Sherwood arrived and transported Delois Johnson to the hospital.
Officer Meany testified that enroute to the hospital, Delois Johnson gave the following general description of the assailants: "two unknown, male black men, one about 5'11", medium build, 20 to 25 years old, wearing a black leather three-quarter length coat and green tam; the other about 5'10" to 5'11", wearing dark prescription glasses, a short natural haircut and a blue peacoat." Meany also stated that Delois Johnson told him that she had met Garrett and the other two men as they arrived at the apartment building and had walked up the stairs with them.
From her hospital bed, Delois Johnson identified Hardy Lewis from a picture in a Tilden High School yearbook. The next day she picked both defendants' pictures from a group of police photographs. On May 21, 1974, after being released from the hospital, she picked Lewis and Smith out of two separate five-man police lineups.
On cross-examination Delois Johnson admitted that her husband was a user and seller of heroin. She again stated that she had never seen the defendants before that day. She denied walking upstairs to her apartment with a different man about the time of the incident and denied that any men had visited her apartment that day prior to the defendants and Garrett. She also testified that at the time she was shown the Tilden High School yearbook she was unaware that Jenny Smith had previously identified Lewis from his picture in the yearbook.
On redirect, Mrs. Johnson testified that she looked through many pages of the yearbook before choosing a picture of Lewis and that the police had not started her on the page containing his picture. At trial there was a tear on the page near Lewis's picture but Mrs. Johnson stated she did not know whether it had been there when she first identified the picture and that it had not influenced her identification. She further asserted that her identification of the defendants from police photographs and in the lineups had been made without suggestive comment from the police.
Jenny Smith, who is not related to defendant Smith but is a cousin of defendant Lewis, testified that she lived with Joseph Garrett and her three children; that at 11:10 a.m., on the morning of April 20, 1974, her cousin Hardy Lewis and another man came to her apartment to see Garrett; that, although she was in the bathroom, she heard the men talking in the dining room; that she later saw the defendants and exchanged greetings with them; and that Garrett told her he was going with Lewis and Johnny Smith, to Henry Johnson's apartment. She stated that she was positive that the three men left at 11:15 a.m., because she looked at the clock.
Later that afternoon she was called at work and informed of Garrett's death. Around 10:30 p.m. that evening she accompanied police officers to Tilden High School, where she identified a picture of defendant Lewis after examining three yearbooks. She identified both defendants at trial as the men who had visited her apartment that morning.
On cross-examination Jenny Smith admitted that she was not married to Garrett and stated that he did not use heroin. She affirmed her previous testimony concerning the exact time of the defendants' visit to her apartment. She stated that on that day Lewis had been wearing a three-quarter length brown leather coat with fur on the sleeves and collar and a dark tam, and that Smith wore glasses and a dark jacket, perhaps a green army jacket. This statement matches the defendants' description of their attire on the day in question.
Police investigator Peter Dignan testified that he and his partner accompanied Jenny Smith to Tilden High School and secured the yearbook from which she identified Lewis. He later showed the yearbook to Delois Johnson who selected Lewis's picture. The next day Delois Johnson "positively identified" the defendants from 10 police department color photographs.
Officer Grunhard described his follow-up investigation of the Johnson apartment. He observed that the victims' pockets had been turned inside out; that the apartment had been ransacked; and that strewn on the living room floor were several brown bags containing residue of what appeared to be marijuana. He also found an unfired revolver and registration in the name of Delois Johnson.
The following day, after receiving a call from defendant Lewis, Grunhard testified that he went to Lewis's home where Lewis and Smith were waiting. Lewis asked why he was being investigated and Grunhard told them about the murders. Grunhard noticed that Smith, who stated he had been with Lewis the previous day, fit the description of the second man. After reading the defendants their rights, both accompanied Grunhard to the police station and voluntarily gave statements to the police.
Officer Baker and Cedell Johnson, the brother of Henry Johnson, testified that they observed that the Johnson apartment had been ransacked; that Garrett and Johnson were bound; that electrical wires and an iron were hanging from the bathtub; and that the victims' pockets were pulled inside out. Baker testified that he saw large brown bags and a box of small envelopes torn in pieces in the living room, but Cedell Johnson said that he had not seen any brown bags and denied that his brother used or sold heroin or marijuana.
It was stipulated that an autopsy disclosed 4.5 milligrams of morphine in the bile of Joseph Garrett and 1 milligram of morphine and 108 milligrams of quinine in the bile of Henry Johnson.
The defendants presented an alibi defense which substantially followed the statements which they had given to the police. Defendants and Veronica Anthony, Lewis's girlfriend, acknowledged that they had read each others statements before testifying at trial.
Ms. Anthony, Smith and Lewis each testified that on Saturday, April 20, 1974, Ms. Anthony and Lewis picked up Smith at his home at 9 a.m. They went together to a Shell Gas Station to have Ms. Anthony's car serviced. While the car was being serviced Ms. Anthony called her mother and was instructed to be home by noon. They left the gas station about 10:30 a.m.
The three then drove to a garage where Smith's car was being repaired. After finding that the garage was closed, they continued on to the home of Jenny Smith near 43rd and Shields. They all testified that they arrived at Jenny Smith's home about 10:40 or 10:50 a.m. Ms. Anthony waited in the car while Lewis and Smith went in. After five or 10 minutes Lewis and Smith returned to the car with Garrett, a friend of Lewis whom Ms. Anthony had never seen ...