APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After convictions of murder and robbery in a jury trial, defendant received concurrent sentences of 75 to 150 and 6 to 18 years imprisonment. He presents the following issues on appeal: (1) whether the court's polling procedures improperly coerced a juror to assent to a verdict which was not hers; (2) whether a juror's affidavit may be considered in determining the question of coercion; (3) whether the deadlock instruction was phrased improperly and was untimely given; (4) whether prosecutorial argument constituted improper comment upon defendant's failure to testify; (5) whether the prosecutor improperly commented upon defendant's unrelated and past bad acts; (6) whether the trial court erred in failing to question the jury during trial regarding certain prejudicial influences; and (7) whether defendant's sentence for murder was excessive.
For the purpose of review, defendant's direct appeal has been consolidated with his appeal from the denial of his post-conviction petition without an evidentiary hearing in which he contends that the trial court erred in failing to hold such a hearing where his petition and supporting affidavits raise substantial constitutional issues.
It appears that on April 8, 1974, between 10:30 and 11 a.m., George Pope, a uniformed security guard with a pistol and holster strapped to his waist, visited the seventh floor apartment of Annie Pegues in a Chicago Housing Authority building where they drank alcoholic beverages throughout the day, so that by 7:45 p.m. Pope was somewhat intoxicated. At this time, the couple left the apartment, crossed the street, and entered a liquor store where Pope purchased more liquor. On their way back to the apartment, Pope became involved in a quarrel with some unidentified boys, and Pegues walked home alone.
At approximately 8:45 p.m., a Chicago Housing Authority security guard was summoned to the seventh floor of Pegues's building. Finding nothing unusual there, he ascended a stairwell and on the ninth floor he observed a trail of blood leading to the 10th floor, where he found the wounded Pope, who exclaimed, "Get my gun." He and police officers who were called to the scene observed that Pope's holster was empty, and they saw no gun in the vicinity. Shortly after his removal to the hospital, Pope died of a bullet wound to the abdomen.
No further information concerning the incident was immediately obtained by the police except that a resident of the ninth floor whose apartment is located across from the elevator stated that she heard two gunshots sometime during the evening of April 8 and that she found a bullet hole in her door which had not been there prior to the sound of gunfire.
Thereafter, on April 18, 1974, James Fleming was arrested for possession of heroin, and homicide investigator Jack Stewart who was assigned to the Pope murder investigation, was called to speak to Fleming who testified that, motivated only by fear for the safety of his wife and six-year-old daughter, he gave a statement which implicated defendant and led to the recovery of Pope's gun.
At trial, Fleming (a five-year friend of defendant) also testified that on April 8, at approximately 10:15 p.m., defendant visited him at the home of his parents, where defendant stated that he was riding in an elevator with a man who voiced a need to urinate. Defendant volunteered to hold the elevator door open while this man urinated in the hallway; but, instead, approached him from behind, removed the revolver from his holster, and announced a holdup. He said the man turned and approached him and he fired the gun and, when the man kept coming, he fired again. At the conclusion of this account, defendant showed Fleming a .38-caliber revolver which he had pulled from his waistband and removed from it two spent and four unspent cartridges and also exhibited a wallet.
The pair then left the apartment and proceeded to the home of a junkman, Percy Kight, to whom defendant sold the gun for $40, receiving $32 in cash and a promise that the balance would be paid in a couple of days. They next proceeded to a destination where defendant purchased $23 worth of dope, which they brought back to Fleming's place where they each "shot up."
On April 10, Fleming returned to the Kight home and asked for $8, stating that the gun was his. Kight said he had given the money to defendant earlier that day. Fleming testified that he returned to Kight's house once more, between April 10 and April 18, in the company of "Hop" to sell some junk but that Kight was not at home. He did not enter nor did he remove a television at that time. Kight's testimony corroborated Fleming's account of the gun sale, but he was not asked whether a television had been removed from his home.
On April 18, Officer Stewart recovered a .38-caliber revolver from Kight. Through the comparison of its serial number to that recorded in Pope's gun registration form and by means of ballistic tests, this gun was determined to be the property of Pope and the weapon used to kill him.
The defense presented no evidence at trial, but in opening statement stated its theory that it was Fleming who had killed Pope. To this end, defendant's cross-examination of Fleming elicited that he was unemployed; that his addiction to heroin cost $200 to $300 per week; that he obtained the means of procuring heroin through the generosity of his family and friends and from the collection and sale of discarded junk; that he was twice previously convicted of robbery; and that although arrested for the possession of heroin on April 18, he was not convicted of this offense, as the arresting officer testified that heroin was not found in his possession. Additionally, defendant's counsel made two purported offers of proof; i.e., if Cheryl Whitehead was called she would testify that on April 16 or 17, she saw Fleming leaving the Kight house with a television and that if Fleming's attorney were called he would testify that Fleming stated that the police agreed to drop the charge of possession of narcotics against him.
During the course of the State's case, the gun identified as the murder weapon was left on the defense table while counsel and the court conversed at a side bar. A juror toward whom the barrel of the weapon happened to be pointed asked a deputy sheriff to turn it so that it was not pointed in her direction. In making the request, this juror remarked that guns always made her nervous, which caused the other jurors to laugh. The deputy sheriff acceded to the juror's wish and changed the position of the gun. On this basis, the defense moved for a mistrial, which was denied; whereupon, defense counsel stated:
"I would like to bring up a matter. Yesterday's newspapers throughout the City of Chicago there was a story about forty homicides committed, seventy-two over a period, I think twenty-four of them were committed by handguns. I ask the Court to examine the jurors whether or not they may be influenced by having read, or whether they have read about these incidents, whether their ability to serve as jurors would in any way be influenced by these occurrences."
After the trial court denied this motion, the defense moved for a mistrial, which was refused.
During closing argument, defense counsel emphasized Fleming's addiction to drugs; the unlikelihood that his family would willingly subsidize the expensive habit of so disreputable a character or that he would be concerned for their safety; the further improbability that his habit could adequately be supported by finding and selling discarded junk; the unlikelihood that defendant after committing robbery and murder would give a detailed account of the robbery/murder or use a portion of the gun sale proceeds to support Fleming's addiction; and the high probability that it was Fleming who committed these offenses to support his habit and, when police investigation had centered upon him, transferred their attention to defendant by means of a fictitious story. In rebuttal, the prosecutor commented:
"Don't forget James Fleming is an addict. What did they do after they got the $32.00? They went to the local junkie house, the little building on Gladys Street, and bought two bags of dope, went back to Fleming's house and shot up. I guess we know there is more than one addict involved."
The prosecutor also characterized the evidence against defendant as uncontradicted and undenied.
The jurors were instructed and given verdict forms for the charges of robbery, armed robbery and murder, and at approximately 4:25 p.m. they retired to deliberate. At about 11 p.m., the court called counsel into chambers to inform them of its intention to give a deadlock instruction. The defense objected, stating that both sides would agree to such an instruction if given the next day, but it would be prematurely given at that time; that the language concerning a retrial was improper; and that there was no indication, as the instruction stated, that the same evidence would be produced at a subsequent trial. The trial court rejected these objections and called the jury from their deliberations; whereupon, the following colloquy took place:
"THE COURT: You may be seated. Ladies and gentlemen, have you been able to reach a verdict? I just want to talk to the foreman.
THE FOREMAN: Not completely, your Honor.
THE COURT: I want to talk to the foreman, not to anybody else. Do you think you can arrive at a verdict?
THE FOREMAN: I couldn't tell you at the moment, sir.
THE COURT: Okay. I am going to send you back. I just want to let you know that a large proportion of the cases absolutely certain [sic] cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence of the conclusion of others, yet you should examine the questions submitted with proper regard and deference to the opinions of each other and you should listen to each other's opinions with a disposition to decide the case if you can conscientiously do so. If you fail to agree on a verdict, the case must be retried and a future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to 12 men and women more competent to decide, nor can a case be tried any better or more exhaustively than it has been here, or that any more clear evidence could be produced on behalf of either side. Now you can retire and reconsider the verdicts in this case."
Thereafter, at 12:50 a.m., the jury returned a verdict on one of the three charges. The court then sent them back to deliberate on the remaining charges without disclosing which verdict had been returned. At 1:50 a.m., the jury returned the remaining verdicts, finding defendant guilty of robbery and murder but not guilty of armed robbery.
In polling the jury, the following colloquy took place:
"CLERK: Vera Goss, as to the verdict of guilty of murder, was this and is this now your verdict?
JUROR GOSS: (unintelligible)
CLERK: As to the verdict of guilty of robbery, was this and is this ...