APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
After a bench trial, both defendants were found guilty of felony murder and sentenced to a term of imprisonment of 14 to 20 years. Defendants now appeal and contend as follows: (1) that they were improperly found guilty of felony murder because there was no underlying felony to support the verdict; (2) that the preliminary hearing testimony of a deceased witness was improperly received into evidence at trial because defendants had no adequate opportunity to cross-examine that witness at the preliminary hearing; and (3) that defendants were not proved guilty beyond a reasonable doubt.
Defendants were initially charged by complaint with armed robbery and felony murder. The armed robbery complaint charged that defendants "by use of force or by threatening the imminent use of force and while armed with a dangerous weapon, * * * [a .32 caliber handgun], took a 1970 Buick from Larry Pettis." The felony murder complaint charged that while escaping from the forcible felony of armed robbery the defendants caused an automobile accident which took the life of Murray Reed without lawful justification.
Pursuant to these complaints, a preliminary hearing was held to determine probable cause. At this hearing Larry Pettis testified that at approximately 9:45 p.m. on October 11, 1974, he left a party at Crane High School in the vicinity of Jackson and Oakley to check on a "69 Deuce" (Buick Electra 225), owned by Bernard Singleton. Upon leaving the building and while approximately 15 feet from the "69 Deuce," Pettis was approached by three people, two of whom pointed guns at him. Pettis identified the two individuals with guns as the defendants, Chism and Fisher. Fisher rifled through Pettis' pockets and took $20. Pettis then heard a click from Chism's gun, but the gun did not fire. Pettis pushed Chism into Fisher and ran. Pettis did not see either of the defendants after he ran.
Pettis then hailed a squad car. After entering the squad car, Pettis saw the "69 Deuce." The officers activated their siren and emergency lights and gave chase. Defendants turned down a one-way street, made a skidding turn, and proceeded the wrong way down the one-way street. Pettis testified that at times the car reached speeds of 90 to 100 m.p.h. During the chase, the "69 Deuce" collided head-on with a Cadillac causing the death of the occupants of the Cadillac. After the crash, Pettis went up to the "69 Deuce" and observed Chism on the driver's side and Fisher in the front seat on the passenger's side.
On cross-examination, Pettis testified that the automobile was not his and that, although he had the keys to the automobile at the time of the incident, these keys were not taken from him. Pettis further indicated that he did not now who started the car, but that "it was started up." Pettis also testified that the car was running when the two defendants accosted him in front of the school building.
Pettis' cross-examination testimony further indicated that there were approximately 10 other people within 15 feet of him when defendants accosted him; that a package of Kool cigarettes was also taken from him; that two or three shots were fired at him as he ran. Pettis further testified on cross-examination that the automobile belonged to Steve McCuen; that the keys to the car were not taken from him; that there was no one in the automobile at the time Pettis was in front of the school. Pettis also testified on cross-examination that although he had the car keys in his pocket, somebody started the car. Pettis also indicated that he observed the automobile pull away and the car was going so fast he saw only one individual in the car; and that he had seen the defendant, Charles Chism, once before.
Also testifying at the preliminary hearing was Investigator Senase who testified that he approached the scene of the crash and observed Chism pinned under the steering wheel and Fisher pinned under the dashboard. He observed a gun in Fisher's hand and forced Fisher to drop the gun. Officer Senase found two shells in the revolver, one spent and one misfired. Senase also approached the other auto, a Cadillac, and observed Murray Reed and Norma Martz badly injured. They later died from injuries sustained as a result of the wreck. Senase did not recover a $20 bill from either of the defendants.
After the testimony was heard at the preliminary hearing, the State moved to amend the complaint to charge armed robbery of the automobile to armed robbery of $20 United States currency. The trial court denied the motion, but did allow a motion to change the year and make of the car to a 1969 Buick Electra. At the close of the hearing, the trial court made a finding of probable cause on the armed robbery of the auto and the felony murder.
Indictments were later returned charging both defendants with armed robbery of an unknown amount of currency from Larry Pettis, felony murder based on that armed robbery, two counts of aggravated battery on Larry Pettis and one count of attempt murder.
Larry Pettis died prior to trial. Before hearing any testimony at trial, the trial court ruled that the transcript of Pettis' preliminary hearing testimony be suppressed with regard to the counts of aggravated battery and attempt murder. The trial court reasoned that at the preliminary hearing neither defendant was charged with aggravated battery or attempt murder and that as to those counts there was no adequate opportunity to cross-examine.
At trial, the prosecution called Officer Thomas Fitzgerald who testified that at approximately 9:55 p.m. on October 11, 1974 he and his partner were in a squad car near the southwest corner of Oakley and Madison streets in Chicago. Larry Pettis exited a Mercury station wagon and had a conversation with the officers. As a result of the conversation, Pettis entered the squad car and the officers drove him to Oakley and Jackson where they spotted a 1970 green Electra 225 Buick. The police activated their Mars lights and siren and the Buick sped off at approximately 65 miles per hour. The Buick traveled eastbound on Jackson to Leavitt where it swung around in the intersection, proceeded westbound on Jackson, and finally collided with an on-coming Cadillac.
Officer Fitzgerald went on to testify that Chism was in the driver's seat and Fisher was in the passenger's seat. A .32 caliber H & R revolver containing one spent shell and one live shell was ...