APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Lester Weatherspoon, was charged by indictment with three counts of murder and one count of attempt armed robbery, for the shooting of a grocery clerk in the course of robbing a small neighborhood food store. A jury found defendant guilty of both murder and attempt armed robbery, and defendant received concurrent sentences of 25 to 50 years for the murder and 6 to 20 years for the attempt armed robbery. On appeal, defendant contends that: (1) he was denied a fair trial due to certain comments made by the prosecutors during closing argument; and (2) the identification linking him to the crime was insufficient to establish his guilt beyond a reasonable doubt.
We affirm. The pertinent facts follow.
Carmelo Flores, whose nickname is "Gino," testified that he had owned Gino's Food Mart since 1965. The grocery is on the first floor of a building located on the northeast corner of Ohio and Trumbull Streets in Chicago, Illinois. Flores and his wife live on the second floor of the building. Flores described the store as being about 25 feet wide by 25 feet deep, with the entrance at the corner of Ohio and Trumbull. To the right of the entrance is an ice-cream chest that serves as a counter. The cash register is on the chest, and behind it is the drug department and room for the cashier. A produce and dairy case is to the left of the entrance. Shelving runs down the center of the store from front to back, forming an aisle on either side. At the back of the store is a meat department. The store is lit with eight-foot long fluorescent lights.
On December 1, 1973, Flores was working at the grocery along with his wife, Maria, who was the cashier, Raymundo Delvalle, who was a butcher, and Alberto Luna, a stock boy who was helping Mrs. Flores bag groceries at the cash register. Shortly before 6 p.m. on that day, Flores was about 20 feet from the store's entrance, in the left-hand aisle, when two men entered the store, carrying guns and announcing a holdup. Mrs. Flores and Alberto Luna were behind the cash register and Delvalle was working in the meat section with his back to the front of the store. One of the men began to kick Alberto Luna and called for Flores to come to the front of the store. Flores ran to the back of the store and pulled on the door. He grabbed his gun, took the chain off the door and then heard a shot. The event took approximately 45 seconds.
Flores went out the rear door and ran to the store's front entrance. He saw the two men running south on Trumbull, crossing from the east side of the street to the west side. Flores ran after them briefly, firing two shots in the air. Flores admitted that he could not identify either of the men.
Maria Flores testified that she had known Alberto Luna for about five years and that he had been working at the grocery for about a month as of December 1, 1973. On that day, shortly before 6 p.m., Delvalle, Mrs. Flores' cousin, was slicing bacon in the meat department and her husband was cleaning some shelves on the left-hand side of the store. Mrs. Flores was working at the cash register and Alberto Luna was bagging groceries when Mrs. Flores saw the defendant standing right in front of her, pointing a gun directly at her. A second man stood in front of Alberto Luna, pointing a gun at him. Mrs. Flores recognized the defendant, having seen him before, and exclaimed, "Again!" in Spanish.
The defendant told Mrs. Flores to lie down on the floor, and she lay on the floor, head to head next to Alberto Luna, behind the counter. Defendant told Mrs. Flores to get up, grab a bag, and put the money in it. Defendant was leaning over the counter with his arm extended, still pointing the gun at Mrs. Flores as she slowly got up. The second man continued to kick Alberto Luna, who was still on the floor, and then told defendant to shoot Mrs. Flores. Defendant was at that time standing in front of Mrs. Flores with the gun aimed at her, about a foot away from her head. Upon hearing the second man's order for defendant to shoot, Mrs. Flores put her hands in front of her face, fell backwards and heard a shot. She got up slowly, looked around and saw Alberto Luna on the floor, bleeding from his head. Mrs. Flores began to scream and cry, closed and locked the front door of the store, and ran around the store screaming and crying.
Mrs. Flores talked with the police after they arrived and looked at some photographs they showed her, but didn't recognize anyone from them. The following day the police came over with two books of photographs and Mrs. Flores identified a picture of defendant. Two weeks later she was shown six pictures and again selected a picture of defendant, the latter being a more recent picture than the first one she had chosen. At the trial, Mrs. Flores identified both pictures of the defendant which she had previously identified, and also identified defendant himself.
Mrs. Flores testified that she had seen defendant previously on November 17, 1973, in the grocery store. At that time, defendant and another man held Mrs. Flores at gunpoint, ordered her to fill a paper bag with money, and told her to lie down on the floor, enabling them to escape with $800. On cross-examination, Mrs. Flores testified that she had not signed a complaint against defendant for that incident, nor had she ever given any testimony in court regarding it. She said she had described defendant to the police as approximately 19 years old, with a medium complexion, and about an inch shorter than her husband, who is 5'6" tall. She further testified that she did not recall describing defendant at that time as a light-complected male Negro, 16 to 18 years old, 5'4" tall and weighing about 130 pounds. Mrs. Flores did recall then telling the police that she would not be able to identify either one of the men. She estimated that the November 17 incident took about two minutes.
When cross-examined regarding the December 1, 1973, shooting, Mrs. Flores stated that she was sure the two men were the same ones who had robbed her on November 17. She said defendant was the taller of the two men and had described him as being about 18 or 19 years old and almost an inch shorter than her husband. Mrs. Flores testified further that she did not say defendant was 6'1" tall, and did not recall ever describing him as being that height with a dark complexion and weighing 150 pounds. Mrs. Flores described the second man as a little taller than she, with a light complexion and wearing an "Afro" hair style, and between 16 and 18 years old.
Mrs. Flores testified that on December 1, 1973, she spoke to some detectives at the police station after the robbery and shooting. She was given two or three books of pictures and told to look and see if any of the pictures were of the men in her store that evening, but picked out no pictures at that time. The following day some plainclothes officers came to her home and she looked at "books and books" of pictures, picking out one picture, but not making a positive identification. Mrs. Flores had asked the name of the person pictured but did not recall receiving an answer. On December 14, 1973, Mrs. Flores again looked at more pictures, this time selecting another picture of the defendant. She said she knew defendant's name by that time but did not know if his name was on the back of the picture on December 14, and did not recall if she had seen the back of the picture.
Mrs. Flores further testified that the shooting incident on December 1 took no more than a minute, but upon detailed questioning on cross-examination she said she was face to face with defendant for about 45 seconds before lying on the floor for 20 seconds. She faced defendant for another 45 seconds before he was told to shoot her. She did not see the shot being fired but heard the trigger above her head. On redirect, Mrs. Flores said the times were all approximations. She also said she had testified about the November 17 incident at the preliminary hearing held in the instant case.
Raymundo Delvalle and two of the Flores' neighbors also testified regarding the shooting but all were unable to make any identification of the assailants.
Officer Paul Bretz of the Chicago Police Department testified that he responded to the robbery call on December 1, 1973, and upon entering the Flores' grocery store saw a man lying on his stomach behind the counter, bleeding and apparently shot in the head. Bretz called for first aid and transportation to the hospital for the victim. He described Mrs. Flores as "very pale" and upset, "in shock." She did not respond to questions, Bretz said, and he felt Mrs. Flores didn't fully understand what he was asking and that most of the time he had to "almost put words in her mouth." Bretz spoke to Mrs. Flores off and on during the hour and 15 minutes he was at the store. The only description he received from Mrs. Flores that night was that of "two male Negroes," and the description was too vague to send a "flash message." Bretz testified that Mrs. Flores did not tell him that the two men were the same ones who robbed her on November 17. He and his partner had taken report information from Mrs. Flores on November 17, and Bretz had signed it. The description obtained from Mrs. Flores at that time was also too vague to send a flash message. Bretz also testified that he had no authority to approve charges to be brought against a defendant and that it is not his job to conduct investigations, interview all witnesses, or apprehend the offender.
Officer John Dahlberg of the Chicago Police Department testified that he had been assigned to investigate the December 1, 1973, robbery and shooting at the Flores' store the day after the incident occurred. He spoke to Mrs. Flores at her store and showed her a series of 10 to 15 photographs. Mrs. Flores had selected one picture, a 1968 photograph of defendant, and tentatively identified it as a picture of the man who robbed her and shot Alberto Luna. Dahlberg did not seek an arrest warrant for defendant on December 2 because the identification was not definite. The investigator made a report as a result of his conversation with Mrs. Flores. He did not recall getting a description of the assailants from Mrs. Flores and did not ask her for one because the robbery report contained a description. The description, of a male Negro, 6'1" tall, between 17 and 19 years old and with a light complexion and bulging eyes, was used on his own report. Dahlberg had no knowledge of the November 17, 1973, robbery and never received a description from Mrs. Flores on that case.
Investigator Lee R. Anderson of the Chicago Police Department had been assigned to investigate Alberto Luna's death. On December 14, 1973, Anderson went to the Flores' store and showed Mrs. Flores five pictures. She identified one picture as of the man who shot Alberto Luna, but recognized no others. Upon being shown the five pictures he had shown Mrs. Flores, Anderson selected the picture of defendant as the one Mrs. Flores had chosen. Following the photo identifications by Mrs. Flores, Anderson had returned to his office with his partner. He then made out a report and contacted the State's Attorney's Office to request that they obtain a warrant for defendant's arrest. Defendant was arrested on January 10, 1974, but Anderson was not involved in it or notified of it.
Anderson further testified that the names were not on the backs of the pictures when he showed them to Mrs. Flores and that he did not recall telling Mrs. Flores defendant's name. Anderson had asked Mrs. Flores about her earlier photo identification after she had looked at the pictures on December 14. Mrs. Flores had said that she had seen a picture of the same man, although it was an older picture and she hadn't been sure of the identification at the time. The picture Mrs. Flores identified during ...