APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
The defendant, Melvin Haywood, was indicted for three counts of murder against Lee Jackson, William Troop and Melba Grate and for one count of attempt murder and one count of aggravated battery against Charles Stanton. Prior to trial, the defendant made two separate motions. The first of these motions sought to suppress the use of the preliminary hearing testimony of a witness who had died prior to trial. The second pretrial motion sought to suppress an in-court identification of the defendant made at the preliminary hearing. The trial court denied both of the above motions and the case proceeded to trial before a jury which returned verdicts of guilty. The trial court entered judgments on the verdicts and sentenced the defendant to concurrent sentences of 100 to 200 years on each count of murder and to 10 to 20 years on the count of attempt murder. The defendant now appeals from the above judgments.
On appeal defendant contends (1) that he was not afforded an adequate opportunity to cross-examine a witness who identified him at a preliminary hearing and who died prior to trial, and that the introduction of this testimony at trial deprived him of his right to due process of law; (2) that a witness' identification of the defendant at the preliminary hearing was so unnecessarily suggestive and conducive to irreparable mistaken identity as to deny the defendant due process of law; (3) that the trial court committed reversible error by prohibiting the defendant from both questioning police officers and placing before the jury evidence of other faulty identifications made by the victim; and (4) that the admission into evidence of testimony of out-of-court identifications offered to bolster the reading of a transcript of preliminary hearing testimony was prejudicial error requiring reversal of the instant conviction.
The first witness called by the State to testify at the defendant's trial was Officer William Hinton who indicated that on July 2, 1972, he received a radio assignment and proceeded to 1448 East 68th Street in Chicago. Upon arriving at that address, Officer Hinton encountered Charles Stanton lying outside the building and suffering from a gunshot wound to the chest. After talking to Stanton, Officer Hinton proceeded to a third-floor apartment where he observed three men and a woman lying on the floor in pools of blood. Three of these people, Lee Jackson, Melba Grate, and William Troop, later died from gunshot wounds to the head. The fourth, Harry Daniels, had been shot in the leg and survived to testify for the defense in the instant trial.
Also testifying for the State was Officer Davis who visited the scene and then proceeded to Jackson Park Hospital where he spoke to Charles Stanton shortly after the incident. On cross-examination, Officer Davis testified that at the hospital Stanton told him that he and Melba Grate were in a rear bedroom of the third-story apartment when he observed Lee Jackson enter the living room with four black males. Stanton indicated to Officer Davis that he had seen the four men before and that they were from Indiana. One of the men yelled "Now" and the four men started shooting. During the interview, Stanton was asked to describe the men but was interrupted by the treating physician who was preparing him for surgery.
The next witness to testify for the State was Officer Thomas McKenna who testified that he and his partner conducted a brief interview with Charles Stanton at Jackson Park Hospital and that pursuant to that interview proceeded back to the scene to recover additional evidence. After seizing a number of photographs at the apartment, Officer McKenna and his partner returned to the hospital and showed the photographs individually to Stanton. Stanton marked four of the photographs with an "X." Officer McKenna identified the defendant as the person depicted in each of the photographs Stanton had marked.
On cross-examination, Officer McKenna testified that Stanton told him one of the four people from Indiana jumped up, yelled "Now," and that the people from Indiana then began shooting. Stanton informed Officer McKenna that when the shooting began he fled to the bedroom, was ordered to get up from behind the bed, and was then shot. Stanton also described the man who actually shot him as short and stocky and indicated that he had seen photos of at least one of his assailants at Lee Jackson's apartment. On redirect examination, Officer McKenna stated that Stanton pointed to the defendant in the polaroid photograph as the man who shot him at least once when he was in the bedroom.
Over defense counsel's objections, the prosecution then read the transcript of the testimony of Charles Stanton given at a preliminary hearing. Stanton, who had died prior to trial, testified at the preliminary hearing that he, Melba Grate, Shirley Scott, William Troop and Lee Jackson, were at Jackson's apartment when the defendant and "two other fellows" arrived between 2 a.m. and 2:30 a.m. Somebody yelled "Now" and shooting began. Stanton testified that the defendant got up from the couch and shot him in the arm. Stanton then ran toward the back bedroom where he hid Shirley Scott in the closet and himself under the bed. Stanton looked into the hall and saw the defendant shoot Melba Grate in the head. The defendant then entered the bedroom, ordered Stanton to stand up, and shot him in the stomach. After hearing additional shots, Stanton staggered into the living room where he observed Melba Grate, Lee Jackson and William Troop with bullet wounds in the head. At the preliminary hearing, Stanton then made an in-court identification of the defendant as the person who shot Melba Grate and himself.
After Stanton's cross-examination testimony at the preliminary hearing was read at trial, the prosecution called Officer John Janda as a witness. Officer Janda testified that on July 2, 1972, he received an assignment and proceeded to St. Bernard's Hospital where he interviewed the defendant. Officer Janda observed lacerations on the left side of defendant's head and a bullet wound in his right leg. The defendant told Officer Janda that as he was walking near 70th and Sangamon Streets in Chicago, someone came up from behind him and shot him twice in the leg.
The next witness called by the State was Officer Grundard who had a conversation with the defendant shortly after his arrest almost two years after the incident. Officer Grundard testified that after advising the defendant of his rights, he told the defendant that he knew the defendant was in Lee Jackson's apartment and wounded during a shootout. After the defendant denied that he was in Lee Jackson's apartment and indicated that there was a police report on file regarding how he was wounded, Officer Grundard told the defendant that he had been in Lee Jackson's apartment with two persons named Lee Clark and Larry Hooper who were also involved in the shootout. The defendant then admitted to Officer Grundard that he was in Lee Jackson's apartment and indicated the leg and head, but denied that Clark and Hooper were with him. The defendant explained to Officer Grundard that he was in Jackson's apartment visiting when several males entered the apartment, pulled guns and began shooting. The defendant was wounded and fled the apartment. Officer Grundard also testified that when the defendant was shown a photograph of Shirley Scott, Lee Jackson's wife, he stated "That is Lee Stone's old lady, if I told you where she was, I would be hanging myself." The defendant concluded his conversation with Officer Janda by indicating that he was not a "stoolie" and that he wanted to see a lawyer.
The first witness to testify for the defense was Harry Daniels, who stated that on the night of the shooting he arrived at 1448 East 68th Street alone. Present in the apartment were Lee Jackson, Jackson's wife, "Mose" (Jackson's brother), Melba Grate, and Charles Stanton. Stanton, "Mose", and Lee Jackson were "snorting" heroin, drinking, and smoking marijuana in the bedroom. Daniels admitted on cross-examination that he himself "snorted" cocaine and had become "high" that evening. Daniels testified that Stanton "was mostly out of it" and fell asleep on his girl friend's lap.
Daniels went on to testify that he heard Jackson make a telephone call and tell someone "to bring in a couple of spoons of heroin." Shortly thereafter, three men came into the apartment. One of the men went into the back of the apartment, one remained at the door, and the third sat down on the couch. Minutes later, Daniels heard shots coming from the back room. At that point, the man sitting on the couch started shooting. Daniels was shot in the leg, fell to the floor, and never saw his assailants again. Daniels also testified that Charles Stanton had identified him as one of the assailants, that he was arrested and charged, but never brought to trial.
Also called as a witness for the defense was the court reporter who had recorded the testimony of Charles Stanton during the trial of Willie Bedgood, also indicted for murder in the same shooting. The court reporter's testimony revealed that during Bedgood's trial Stanton testified that he had been in the apartment for approximately two hours before the shooting took place; that there were several lights in the living room but they were not working; and that ...