APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty in a jury trial of murder, attempt murder and aggravated battery. The court entered judgment on the murder and attempt murder convictions, vacated the finding of guilt of aggravated battery and sentenced defendant to a term of 30 to 60 years. Defendant appeals, presenting the following issues for review: (1) whether the trial court erred in admitting into evidence identification testimony that was based on a photograph of a lineup held after the alleged unlawful arrest of defendant; (2) whether defendant was proved guilty of murder beyond a reasonable doubt; (3) whether the jury was erroneously instructed regarding the mental state required to convict of attempt murder; and (4) whether defendant was proved guilty of attempt murder beyond a reasonable doubt.
We affirm in part and reverse in part.
On January 4, 1975, at approximately 1 a.m. Sam Cobbins was shot and killed, and Terry Taylor was shot and seriously wounded at a party in the basement of the Scott residence in Chicago, Illinois. Defendant, William E. Pearson, was arrested and charged with the murder of Sam Cobbins and the attempt murder and aggravated battery of Terry Taylor. Prior to trial, defendant filed a motion to quash the arrest and to suppress identification by several witnesses on the basis that the identification from a lineup and from a photograph of the lineup was a result of unlawful arrest and of suggestive police conduct.
The following testimony was adduced at the hearing on the motion to suppress: Officer John Paladino testified that on January 4, 1975, at approximately 1:30 a.m. he and his partner received a radio call regarding a shooting at 99th and Aberdeen in Chicago. The call included a description of two suspects and a car. Officer Paladino proceeded to the police station and spoke with five or six witnesses. Officer Paladino testified that all the witnesses gave descriptions of the suspects, and one, Tawny Kirkwood, told the officers that she knew one of the boys who had been arguing with Sam Cobbins, that his name was William (no last name given) and she knew where he lived. Tawny then showed Officer Paladino where William lived (a house on Halsted Street), and she returned to the police station. Officer Paladino and his partner then went back to the house and spoke to Mrs. Pearson, who stated that her son was at a party. The officers parked their unmarked car near the Pearson house, and approximately 45 minutes later two males approached the house. The officers requested identification and were told that the boys' names were William Pearson and Darnell Collins. The officers stated that they wanted to discuss a shooting that had occurred at 99th and Aberdeen. Defendant stated that he had been at a party at 48th and State. The officers took the two boys and Mrs. Pearson to the police station. At the station defendant and Collins were turned over to detectives and placed in a lineup.
Seven persons participated in the lineup and each was required to state his name, address and occupation and was required to turn around. It was established that defendant was the third person and Darnell Collins was the sixth person in the lineup.
Ann Scott testified that during a party in the basement of her house two people were shot. After the shooting, she went to the police station in a squad car with Darrell Scott, Tawny Kirkwood and Kyle Kirkwood. On the way, Tawny stated that one of the boys' names was William and she knew where he lived. They drove by a house on Halsted Street but did not stop. Mrs. Scott testified that at the station all the witnesses were placed in one room, and then they were taken one at a time to view a lineup. Mrs. Scott recognized the third and fourth persons in the lineup as being at the party.
Darrell Scott testified that he went to the police station at about 4 a.m. on January 4, 1975, and told police he did not know who did the shooting. He viewed a lineup, and police told him to pick out the one who was at the party. Scott recognized the third and fifth persons in the lineup.
Tawny Kirkwood testified that she was at the party at the Scott residence when the shooting occurred. Tawny spoke with police immediately after the shooting and told them one of the boys who was arguing with the decedent was William Pearson and she knew where he lived. She told police, however, that William did not do the shooting. Tawny then went to the police station in a squad car with several others, and on the way she showed police where William lived. At the station Tawny viewed a lineup and identified the third and sixth persons as being at the party. During the lineup police asked her if William Pearson did the shooting and she replied no. Tawny also heard police say that they had been "wanting Pearson for some time."
Kyle Kirkwood testified that he was at the Scott residence when the shooting occurred, and he went to the police station with his sister and several others. Kyle viewed a lineup during which police stated that "Pearson was the one" and that "Pearson had gone home and changed clothes." Kyle testified that before each person in the lineup stepped forward and stated his name, police asked him to point out William Pearson. Kyle did not identify anyone in the lineup.
Dwaine Clark testified that he was at the Scott residence when the shooting occurred. He first spoke to police at the house and told them he did not see the shooter. Dwaine gave police his name and went home. About 4 a.m. police came to his house and took him to the police station to view a lineup. During the lineup police asked if he recognized William and he replied in the negative. Dwaine recognized the sixth person in the lineup as being at the party.
Officer Alex McCrae testified that he and his partner took photographs of the lineup to the hospital so that Terry Taylor could view them. Terry Taylor did not recognize anyone. Officer McCrae then went to the Moore residence and saw Karen Moore and Sam Clark, and his partner showed them the photograph. They then found Larry Moore and he was shown the photograph.
Karen Moore testified that she was at the Scott residence when the shooting occurred, but she did not talk to police immediately after the shooting or give her name. Later in the morning, as she was walking with Sam Clark, police stopped them and asked if they would look at some pictures. One officer took Karen aside and showed her two photographs of a group of people. She recognized the third person as being at the party. After another officer showed the photographs to Sam Clark, they got in the police car and went to find Karen's brother, Larry Moore, who had also been at the party. They found Larry and then went to the police station where she again viewed the photographs and recognized the third and sixth persons as being at the party.
Larry Moore testified that he was at the party when the shooting occurred, but he did not speak to police until about noon on January 4, 1975. Police came to the Taylor home where he was visiting with Terry Taylor's mother and asked him to view some pictures. His sister and Sam Clark were in the police car. He viewed two photographs while standing outside the car, and he did not recognize anyone. Larry then got into the car and went to the police station. On the way he viewed the photographs again and recognized the third person as being at the party. Larry testified that police never mentioned the name "William Pearson," and that he did not have a conversation with his sister or Sam Clark before making the identification.
Defendant testified that police stopped him near his house and told him he was suspected of murder. He was taken to the police station and placed in a lineup. Defendant was held for the night and then released at 8 a.m. on January 4, 1975. Defendant testified that police returned to his house at 4 p.m. the same day with a warrant for his arrest and took him to the police station.
After hearing all the evidence, the court found that there was no probable cause for defendant's arrest at 3 a.m. on January 4, 1975. The court suppressed the lineup identifications of all the witnesses except Tawny Kirkwood. The court found that Tawny had an independent basis for her identification. The court denied the motion to suppress the photographs of the lineup and the identifications made from the lineup photographs.
The following facts were adduced at trial: On the evening of January 3, 1975, Darrell Scott gave a party in the basement of his home at 9921 South Aberdeen. Darrell Scott and Myron Taylor stood at a door at the top of the basement stairs and collected 50 cents from each person entering the party. There was a light at the top of the stairs, six stairs to the basement and two lights in the basement, a light near a record player and a red light near the stairs. The basement was approximately 40 feet long and 20 feet wide.
At approximately 12 or 12:15 a.m. a group of seven or eight boys came to the Scott residence and began arguing with Darrell Scott. Larry Moore testified that he was at the door with Darrell when the boys came and that they were trying to get into the party without paying. Larry identified defendant as the person who was arguing with Darrell. Karen Moore testified that she was standing at the bottom of the stairs when the group came to the door, and she also identified ...