APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendants Robert and Willie Hunter were jointly indicted and tried by a jury in the circuit court of Champaign County for the murders of Jack Heren and James Rogers. The jury found Robert Hunter guilty of both murders but found Willie Hunter guilty of only the Rogers murder and acquitted him of the Heren murder. Robert Hunter was sentenced to concurrent terms of 75 to 150 years' imprisonment for each offense and Willie Hunter to a single term of 75 to 150 years.
On appeal Willie Hunter contends that the evidence was insufficient to support his guilt of the Rogers' murder and that the indictment should have been dismissed because two police officers were present during the grand jury proceedings while witnesses were testifying. Robert Hunter maintains on appeal that the court erred in: (1) denying his motion to dismiss for lack of a speedy trial, (2) permitting the introduction of evidence improperly seized, (3) giving improper instructions on circumstantial evidence and accountability, (4) denying his motions for a severance as to counts and parties, (5) failing to sua sponte call an individual as a court's witness, and (6) granting the State's in limine motion to prohibit him from asking witnesses if they were paid police informants. He also claims error in the presence of the police officers in the grand jury room, the failure of the State to give ordered discovery and because no attorney was appointed for him until he had been in custody for 18 days during which time he testified before the grand jury.
The offenses occurred near the Golden Rod Tavern on North First Street in the city of Champaign about 1 a.m. on February 4, 1976. Several witnesses testified that the defendants, who were brothers, had entered the tavern together earlier and that Robert had a gun in his waistcoat. Some of those witnesses described the gun as having a light colored handle and one noticed a rubber band on the handle. Two witnesses testified that later they were drinking and smoking marijuana in a car parked outside the tavern when they saw William Johnson and defendant Robert Hunter hitting and shoving a white man in front of the Star Record Shop which was next door to the tavern. Johnson was indicted with the Hunters but his case was severed for trial. These witnesses testified that they left before anything further happened.
Another witness testified that he left the tavern and saw the two Hunters and another black man whom he did not know fighting a white man in front of the record shop. The witness further stated that as he went to get his car, he noticed that the third black man and Willie Hunter went into the tavern while Robert Hunter remained outside and continued to hit the white man. This witness stated that after he got to his car he drove back by the tavern and saw Robert Hunter walking down First Street, a north-south street, and turn onto Park Street, the first east-west street south of the tavern, and then run between two houses. This witness testified that he heard no shots but stated that he had a bad muffler which was very noisy. He admitted that he had lied to the police and to the grand jury when he said that he did not recognize the four men whom he saw fighting.
At about closing time of 1 a.m., various witnesses heard noises outside the tavern which resembled shots. Two witnesses testified to hearing similar noises a few minutes later. Johnson entered the tavern after the first series of noises and stated that someone had been shot outside. Heren was found outside the record shop lying on the pavement with blood on his face. A broken white pistol grip was found near Heren's body. Heren was white.
Brenda Hobbs, daughter of the operators of the tavern, testified that just before closing time, as she was turning off the tavern lights, she heard 4 or 5 noises resembling a car backfiring and then saw Robert Hunter walking on First Street past the front windows of the tavern and towards Park Street. She said that she saw him tuck a gun or similar object into his pants pocket as he passed. Later that evening at about 2 a.m., she left the tavern and was walking east on Park Street when she saw the body of James Rogers in the side stairwell of the tavern. Brenda's sister, Linda, confirmed her testimony and also stated the backfiring noises were in two groups and that the later group sounded as though they were coming from the area outside the tavern to the south. This was the area where Rogers' body was found. The evidence appears to be undisputed that at the time of the first banging sound, Willie Hunter was in the tavern and immediately ran out.
A cab driver testified that between 1:30 and 2 a.m., he was called to a residence on Wascher Drive in Urbana where two black males, one carrying a brown paper bag, entered his cab. These men introduced themselves as Willie and Robert Hunter. The description the cab driver gave of them fitted the description of the Hunters given by the other witnesses. The cab driver stated that he drove these men to the 400 block of East Church Street in Champaign where he let them out. Other evidence showed that Willie Hunter lived at 404 East Church Street with Ellen Louise Terry. Later, a police officer observed a 1971 Pontiac on the south side of the 100 block of East Church Street in Champaign. Church Street is one block north of Park Street and the 100 block is just east of First Street. Willie Hunter was seen walking away from this car. The officer stated that Willie Hunter admitted to him that he had been driving the car. In the trunk of the car was found a brown sack with a dismantled .22-caliber Colt revolver and a .32-caliber revolver.
Other evidence linked the pistol grip found by Heren's body with the .22-caliber Colt revolver found in the Pontiac. A ballistics expert testified that the bullets that killed Heren could have been fired from that gun. He also testified that the .32-caliber revolver found in the bag in the car definitely fired a bullet that was shown to have been removed from James Rogers' brain.
We consider first the question of whether the evidence was sufficient to prove Willie Hunter's guilt beyond a reasonable doubt. Nathan Hobbs, proprietor of the tavern, and Sterling Atkins testified to having seen a dark-handled gun in Willie Hunter's possession while he was in the tavern just prior to the shootings. Both were impeached in that written statements given by them to the police shortly after the shootings made no mention of their seeing a gun in Willie Hunter's possession. Prior to trial, criminal charges involving other incidents had been dismissed as to Atkins but two assistant State's attorneys testified that the dismissal was not related to Atkins being a witness in the Hunter case. The evidence is undisputed that Willie Hunter left the tavern just after the first shots were heard. Linda Hobbs testified that at about this time she heard sounds resembling the backfiring of a car coming from the area where Rogers' body was later found. It would have been unlikely that Rogers was shot after that time because police officers and others who were in the area then would have heard the shots. Several witnesses saw Rogers in the tavern shortly before the first shots were heard.
The weapons expert positively identified the bullet found in Rogers' head as having come from the brown-handled revolver found in the paper bag in the trunk of the car Willie Hunter had been driving. He also testified that the bullets taken from Heren's body appeared to be from a .22-caliber weapon and not from a .32-caliber weapon like the brown handled revolver. The cab driver had testified that the Hunters had a paper bag with them when he drove them to the 400 block on East Church Street in Champaign. Evidence indicated that Rogers was one of those beating on Heren. Willie Hunter would have had a motive to kill Rogers because Rogers might have been a witness against Willie's brother Robert in a trial for the killing of Heren.
1 In People v. Tillman (1969), 116 Ill. App.2d 24, 253 N.E.2d 873, the accused was shown to have purchased the death weapon and to have made a payment on it the day before the killing. The weapon was found abandoned after the killing. When approached by police for questioning, the accused fled. Although the accused was not shown to have a motive and was not shown to have been at the scene of the crime, this court affirmed despite substantial alibi testimony by defendant. Here there is a showing that the accused had a motive, was at the scene of the crime and had the death weapon in his possession a few hours later. Some evidence indicated that he possessed a weapon resembling the death weapon a short time before the shooting. The jury could properly have determined beyond a reasonable doubt that Willie Hunter murdered Rogers.
2 Both defendants contend that the presence of two police officers in the grand jury room while testimony of other witnesses was being presented required that the indictment be dismissed. Section 112-6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 112-6(a)) states that sessions of the grand jury may be attended by the State's attorney, his reporter and "any other person authorized by the court." Here, the court had entered an order authorizing the presence of the officers. The purpose of making grand jury proceedings secret is so that (1) the accused will not flee before indictment, (2) the witnesses may make free and truthful disclosures without coercion, and (3) the innocent may be protected against unwarranted exposure (People v. French (1965), 61 Ill. App.2d 439, 209 N.E.2d 505). The prevention of coercion is the principal aspect of the secrecy requirement designed to protect the defendants. Even when the presence of persons in the grand jury room during testimony is unauthorized, undue influence is not presumed (People v. Gould (1931), 345 Ill. 288, 178 N.E. 133). No showing was made here that the police officers coerced any testimony. As they were not intermeddlers, no undue exposure would be likely to occur. Their authorized presence in no way vitiated the indictment.
We find no error in the conviction of defendant Willie Hunter and now turn to the claims of error made ...