APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Martinez, was charged by indictment with the offenses of conspiracy, armed robbery, aggravated kidnapping and murder in connection with the October 1, 1972 holdup of the Swedish Manor Restaurant in Hillside, Illinois and the subsequent abduction and death of Hillside Police Officer Anthony Raymond. (Ill. Rev. Stat. 1971, ch. 38, pars. 8-2, 9-1, 10-2, 18-2.) That count of the indictment charging armed robbery was severed and a nolle prosequi was entered thereon. Upon a jury trial defendant was found to be guilty of the remaining counts. Judgment was entered on the verdicts and defendant was sentenced to serve a term of confinement of 75-150 years in the Illinois State Penitentiary.
From entry of the judgment of conviction defendant appeals contending: (1) that the trial court erred in permitting the State to elicit testimony establishing that defendant engaged in negotiations with the State's Attorney's office regarding the possibility of obtaining immunity from prosecution for the instant offenses; (2) that the trial court abused its discretion in denying defendant's motion to suppress prosecutorial use of a prior conviction to impeach defendant; (3) that the prosecution's closing argument was improper and served to deny defendant a fair trial; (4) that the trial court improperly refused to tender certain defense instructions to the jury; and (5) that the evidence properly adduced at trial was not sufficient to establish defendant's guilt beyond a reasonable doubt.
A review of such evidence reveals that at approximately 10 p.m. on October 1, 1972, the Swedish Manor Restaurant in Hillside, Illinois, was robbed by two masked gunmen. Lawrence Thomas, the owner of the restaurant, described his assailant as a male, 5'8" tall, well-built, broad shouldered with narrow hips, wearing a Levi type jacket, faded blue denim trousers, a multicolored hat and mossy colored shoes. Manuel Flores, an employee, described the other assailant as a male, 5'7" tall, of slim build, weighing approximately 150 pounds and having light hair. After taking $5000 from the restaurant safe and disabling the telephones, the gunmen fled.
The owner's son, Randall Thomas, testified that shortly before 10 p.m. on the date in question he observed a dark colored, full-size car "like an Impala" parked in a section of the restaurant lot ordinarily used by employees. Jack Pryor and Timothy Hinsdale testified that at approximately 9:55 p.m. they observed a burgundy colored Cadillac parked on Oak Ridge Avenue in Hillside, Illinois, and remarked that such expensive cars were uncommon in the area. When Pryor and Hinsdale left the neighborhood 5 or 10 minutes later the Cadillac was still parked on the street. Shortly thereafter, William Furry and Laura Klemm had occasion to drive on Oak Ridge Avenue in the vicinity where Pryor and Hinsdale had observed the Cadillac. Furry observed a blue Chevrolet which he initially mistook for an acquaintance's Impala. It was demonstrated that the Chevrolet was now parked where the Cadillac had previously been located and that between 10 and 10:13 p.m. the Cadillac had been moved. Subsequent investigation revealed that the blue Chevrolet was a stolen vehicle.
Also shortly after 10 p.m., a late model, black over red Cadillac automobile bearing license plates with the letters "LL" was observed in the vicinity of Harrison Street and Mannheim Road in Hillside, Illinois. Its operator negotiated an illegal turn in order to gain access to the Eisenhower Expressway at Mannheim Road. A marked Hillside police car, driven by Officer Anthony Raymond, gave pursuit and curbed the Cadillac. Two men, matching the description of the individuals who had robbed the Swedish Manor Restaurant were observed in the Cadillac. At trial, it was established that a 1969, black over burgundy, two-door Cadillac with license plate number "LL 781" was registered to the wife of Silas Fletcher. Several minutes later, police assistance units arrived on the scene to discover Officer Raymond's abandoned squad car.
The State's principal witness, Vincent McCabe, testified that he and defendant, Robert Martinez, were close friends and partners in an illegal book-making operation. According to McCabe, he spoke to defendant on the evening of October 2, 1972, and at that time defendant related his complicity in the disappearance of Officer Raymond. McCabe stated that defendant had informed him that he, Silas Fletcher and one Jessie Millard drove to the restaurant but that defendant waited in the rear seat while Fletcher and Millard entered the restaurant. Fletcher and Millard returned five minutes later and they drove off to pick up Fletcher's car which was subsequently curbed by Officer Raymond. Fletcher abducted the officer at gunpoint and threw him into the back seat of the car where defendant handcuffed him. Officer Raymond begged for his life but was driven to Fletcher's house where he was blindfolded and strangled with a guitar string. The officer's body was stuffed into a barrel where Fletcher administered what defendant characterized as a "coup de grace" by stabbing the officer in the back. Defendant, Fletcher and Millard carried the barrel to the back of Fletcher's jeep where they loaded the makeshift coffin and departed for a farm in Wisconsin owned by Fletcher's sister and her husband, Mary Ann and James Ehmann.
McCabe further related that enroute, the group encountered mechanical difficulty and were inadvertently assisted by a State trooper who testified that he encountered a disabled jeep on the Interstate 159-1-90 and saw three men in it and a 55-gallon drum in the back. He radioed his dispatcher to send a tow and when he passed the area 10 minutes later he saw the jeep was gone, but a license check established the owner as Silas Fletcher. McCabe testified that defendant admitted that they drove to a wooded area near Fletcher's sister's home and, while it was still dark, dug a grave, dumped Officer Raymond's body out of the barrel and into the grave and replaced the drum in the jeep. After the grave had been closed and commenting that it would be well fertilized, Fletcher pulled a young sapling from the ground and so marked Officer Raymond's grave. The group then drove to the Ehmann home for breakfast.
According to McCabe, he agreed to provide an alibi for defendant in order to exculpate him from complicity in the murder. On February 8, 1974, and June 24, 1974, McCabe appeared before a Cook County grand jury and lied about defendant's involvement in the abduction and murder of Officer Raymond. In addition to the aforementioned grand jury appearances, McCabe related that on three other occasions in 1974 he lied to law enforcement officials when questioned about defendant's participation in the homicide. McCabe had received assurances of immunity from prosecution prior to his February 8, 1974, grand jury appearance and again on June 27, 1974. McCabe further testified that he had been receiving $1200 per month from the State of Illinois for living expenses after it had become necessary to relocate for security purposes. For the portion of the year in which his children were enrolled in private schools, McCabe received $825 per month from the Federal Witness Protection Program. At the time of trial, McCabe's government subsidies totaled in excess of $28,000.
McCabe explained that he had given perjured testimony because of his friendship for defendant and to stall for time so that he, McCabe, might negotiate with officials of the State of Illinois for immunity from prosecution for defendant in return for defendant's testimony against Silas Fletcher. According to McCabe, defendant was offered such immunity but rejected it. McCabe indicated that he finally told the truth to law enforcement officials because his home had been burglarized and he feared for his family's safety. McCabe stated that he had informed one Antoinette Jackson and his attorney, George Naze, about defendant's participation in the murder before any money had been received from the government. Neither Jackson nor Naze testified at trial.
On August 8, 1973, approximately 10 months after his disappearance, Officer Raymond's body was discovered buried in a wooded area adjacent to the Ehmann property in Rhinelander, Wisconsin. Raymond's hands were still handcuffed behind his back and his legs were bent up behind him. Post-mortem examination revealed that the officer had died as a result of four stab wounds in the back. Laboratory analysis of the bloodstains found on the officer's shirt indicated that the body was upright when initially wounded but had been placed in a horizontal position for two or three minutes before being returned to the vertical, at which time the pattern of blood flow abruptly stopped due to pressure externally applied such as an arm drawn behind the back.
It was established that at approximately midnight on October 1, 1972, Officer Randall Rushing of the Illinois State Police had occasion to assist three individuals in a 1965 white jeep which had mechanical difficulties. Officer Rushing testified that he observed a 55 gallon drum standing on end in the rear of the jeep. The vehicle bore license plate number "WG286" registered to Silas Fletcher.
Mary Ann Ehmann testified that her brother, Silas Fletcher, and two of his friends, introduced to her as Jessie Millard and Bobby Martinez, came to her home at approximately 6:30 a.m. on October 2, 1972, in Fletcher's white jeep. She identified defendant as the man who was introduced to her as Bobby Martinez that morning. Her brother told her that they had been drinking all night but she failed to detect the odor of alcohol on their persons. After they ate breakfast, Fletcher telephoned his wife, and, according to Ehmann, told her that they "got five." She further related that in endeavoring to be a good hostess she engaged defendant in conversation and he told her he was of Mexican descent, from Texas, was a barber, divorced, had a child and that his former wife lived outside Chicago. She identified a phone bill that corroborated the testimony regarding the phone call made by Fletcher to his wife.
James Ehmann also testified that Silas Fletcher and two men introduced as Jessie Millard and Bobby Martinez came to his home on the morning of October 2, 1972. Fletcher was wearing blue levi trousers, a blue jacket with imitation sheepskin lining and suede shoes. James Ehmann identified photographs of clothing which he subsequently found behind a wood pile on his property as being the type worn by Silas Fletcher on October 2, 1972. According to Ehmann, he also observed ...