APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 6, 1978.
Defendant David Beverly was charged by indictment with the murder of William Templin and with the attempt murder and aggravated battery of police officer Daniel Hammond. Defendant was tried by a jury in the circuit court of Cook County, which returned verdicts of not guilty of murder, guilty of attempt murder and guilty of aggravated battery. The court entered judgment only on the finding of guilt on the charge of attempt murder and sentenced defendant to imprisonment for from 10 to 30 years.
Defendant appeals, contending that (1) the jury was improperly instructed on the mental state required for a finding of guilt of attempt murder, (2) he was not proved guilty beyond a reasonable doubt, (3) his post-arrest statement should have been suppressed because it was not shown that he knowingly waived his rights prior to making the statement, (4) a photograph was improperly admitted into evidence without foundation, (5) two inflammatory handbills were improperly admitted into evidence because they were irrelevant to the crime charged, (6) certain cross-examination of defendant and closing argument remarks by the prosecutor denied defendant a fair trial, and (7) his sentence is excessive.
We reverse because the jury was improperly instructed. Because the defendant argues the evidence was insufficient to prove him guilty beyond a reasonable doubt and because certain evidentiary questions may recur on retrial, it is necessary to present a statement of facts.
On May 19, 1974, at about 10 p.m., the body of William Templin was found in the Penn Central Railroad yard near St. Lawrence Avenue and the Chicago Skyway, in the city of Chicago, by Penn Central security guard Joseph Gill. Templin, who was being trained as a probationary guard by Gill that evening, was not armed. The body was found lying face-down with hands behind the head. The victim had been shot in the back of the neck. Gill saw two heads appear above the crest of an embankment and yelled "halt," but was fired upon. He returned the gunfire until he emptied his gun, then ran to his car and called the police. It was dark in the train yard and he could not tell whether the persons he had seen were black or white.
Officer Ally of the Chicago Police Department went to the railroad property and searched the area near the body. He found two army-type duffel bags and a suitcase in a clump of bushes. Contained in these bags were an American flag, items of clothing, three gas masks, three rifle cleaning kits, 1425 live rounds of .38-caliber ammunition, a loaded .38 revolver in a holster, sunglasses, newspapers, a quantity of mimeographed papers and a quantity of mimeographed cards bearing a declaration of war and threats of death against Chicago policemen, and two wallets containing identification papers of Lonell Mosley and the defendant David Beverly. Another policeman recovered a spent .30 bullet from beneath Templin's body and six spent .30 cartridge casings were recovered near the embankment.
Minutes after Gill was shot at, Dorothy Wren and Pamela Word were in a car stopped at 70th Street and Prairie Avenue, a short distance from the Penn Central yard, when they were approached by a black man in black military-style clothing, carrying a rifle. The man said, "It's revolution day. You had better get out. I want your car." The women got out of the car. Jesse Word, an off-duty Chicago policeman and the father of Pamela Word, who was parked across the street, went over to investigate. The man with the gun shot, hitting Officer Word in the side. Shots were exchanged and the man with the gun, later identified as Victor Alto, was killed. Officer Thomas Ginnelly recovered the .30-caliber carbine carried by Alto, along with numerous live cartridges and loaded cartridge magazines fitting the weapon. Also recovered was a rucksack carried by Alto, containing a manual for the weapon and a quantity of the mimeographed papers similar to the ones recovered at the scene of the Templin killing.
Officer Daniel Hammond of the Chicago Police Department was in plainclothes and in an unmarked police vehicle that evening between the hours of 10:15 and 10:30 p.m., when he heard shots. He proceeded from his location at 69th Street and Calumet Avenue east to Anthony and turned right on Anthony. Near 70th Street he observed three male Negroes wearing dark clothing enter a gangway between two apartment buildings. One of the men had what appeared to be a rifle in his hands. Hammond exited his car, drew his service revolver and pursued the figures. He saw a figure on a stairwell of the building as he approached, heard a shot and was hit in the right arm, losing his gun. He managed to escape the gangway, while other shots were fired at him. When he saw the three male Negroes he could not distinguish any facial characteristics.
Officer Maurice Ford was in a patrol car and responded to a radio call, driving to 70th Street and Eberhart Avenue. He heard shots as he approached. He parked the car across the gangway between the building on the corner and the adjacent building on Eberhart, exited his car and drew his gun. He aimed a spotlight down the gangway and in the illumination of the light he observed a male Negro, 20 to 23 years old, with an Afro natural hairstyle and wearing a white pullover T-shirt and dark pants, running down a stairway on the outside of a building. Ford twice ordered the person to halt, but the person jumped to the ground from the landing between the first and second floors and ran westbound between the buildings toward Eberhart. Ford chased the man, losing sight of him for a few seconds, but seeing him again as he ran onto Eberhart and hid behind a van parked on the street. Ford went to the van, saw that the man hiding was the same man he had seen on the stairwell and, after a struggle, arrested the person. This man was the defendant, David Beverly.
Ford and his partner picked up the wounded Officer Hammond and helped him into the back of the patrol car, where the handcuffed defendant had been placed, and drove to Billings Hospital. Ford took the defendant into the police room at the hospital and advised him of his rights. Ford asked the defendant three times if he understood his rights, but the defendant made no response. Ford then transported defendant to the police station at 91st Street and Cottage Grove Avenue, arriving at 12:10 a.m. As he was handcuffing defendant to the wall in a room at the station, Ford asked the defendant if he had any regrets. Defendant stated, "Yes, that I didn't off the two Uncle Tom motherfuckers that caught me." But Ford never recorded this statement in any police report. Ford further testified that he never saw defendant in possession of a weapon that night.
Officer Donald Mitchell arrived at 70th Street and Eberhart at about 11 p.m. and entered the gangway between the building on the northeast corner of that intersection and the building directly north of it. He saw a man crouched on a stairwell with a rifle in his right hand. Mitchell ordered the man to halt, and the man dropped the gun, and after a struggle with the police present was arrested. This man, later identified as Lonell Mosley, was wearing a black military field jacket, a black turtleneck sweater and black fatigue pants bloused in his boots. Recovered from the stairwell where Mosely had been crouching were a .30 carbine rifle, a handgun later established to be Officer Hammond's service revolver, and a canvas military-type bag which contained over 100 .30 cartridges and several loaded 30 round magazines to fit the rifle. Expended cartridge casings were recovered from the yard and a number of spent .30 bullets were dug out of a wooden garage to the rear of the apartment building.
Officer John Burge, some time after 5 a.m. following the arrests, searched the area behind the buildings north of the northeast corner of 70th and Eberhart. Behind the third building north of the intersection, on a stairwell, he found a .30 carbine rifle, an army rucksack containing rubber gloves, five 30 round .30 magazines and one 50 round .30 magazine, all fully loaded, numerous live cartridges and two black knit pull-on hats, a black army fatigue jacket and a black knit turtleneck sweater. The clothing bore no identifying characteristics.
Robert Ruvel, a retail gun merchant, identified defendant as the David Beverly who purchased two .30 carbine rifles from him on March 19, 1974, and who took possession of the rifles on March 21, 1974. From his business records and the serial numbers on the guns, Ruvel identified the rifle recovered from Mosley and the rifle found in the stairwell behind the third building north of 70th and Eberhart as the guns he had sold to defendant.
Officer Donald Smith, qualified as an expert firearms examiner, examined the weapons and expended bullets recovered. He gave his opinion that the bullet recovered from the scene at 70th and Prairie could only have been fired by the gun in Victor Alto's possession at the time he was killed. He also concluded that the bullets recovered from the garage behind the apartment buildings had been fired by Alto's gun. Finally, Smith concluded that the bullet found underneath the through-and-through wound which killed William Templin could only have been fired by the .30 carbine found by Officer Burge in the stairwell behind the third building north of 70th and Eberhart.
The defendant testified that he was 23 years old at the time of trial in October 1975. May 19, 1974, was Malcolm X's birthday and African Liberation Day and he participated in a parade to celebrate these events which originated at 35th Street and King Drive. He arrived at that location at about noon and met Lonell Mosley and Victor Alto. Defendant was wearing black and green army boots, black army fatigues, a white pullover sweater and a light brown corduroy coat. Many people there were wearing African or military clothing and Mosley and Alto were dressed in black military-style garb. The defendant testified that he had planned a trip to Columbia, Mississippi, with Mosley and Alto to visit Mosley's fiancee and, upon meeting them at the parade site, he told Mosley and Alto to be sure to come to his house that evening by 9 o'clock with their bags packed for the trip. Defendant separated from Mosley and Alto and participated in the parade and the following picnic, then returned home to 328 East 70th Street at about 8 p.m. At about 9 p.m. Mosley arrived with a suitcase and Alto arrived shortly thereafter with a green duffel bag.
The defendant testified that he had purchased four .30 carbine rifles and two .38 handguns and had kept them in a closet at home, along with three gas masks that had been purchased by Alto in April, about 2000 rounds of ammunition and three gun cleaning kits. Defendant said he was concerned that his younger brother and sister, who lived in the same apartment with defendant and defendant's mother, would be alone with the guns. Alto said that the guns could be stored at his house. Defendant then took all the clothes out of the bag he had packed and put into the bag the guns, bullets, cleaning kits and gas masks and three rucksacks. Alto made a telephone call and said he had transportation coming. Defendant gave Alto his wallet containing his identification papers, which included an Illinois firearms owner identification card, in ...