APPEAL from the Circuit Court of Cook County; the Hon. WAYNE
W. OLSON, Judge, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendant, Tommy Lee Williams, was convicted of attempt robbery and murder (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 9-1(a)(3)) and sentenced to concurrent terms of 1 to 3 years, and 14 years to 14 years and 1 day. The issues presented for review are (1) whether defendant was proved guilty beyond a reasonable doubt, and (2) whether there was a fatal variance between the indictment and the proof at trial.
Lutherene Johnson testified that she lived in a third-floor apartment with her three young children. Vickie Dean and a woman named Sheila also stayed with her on occasion. On March 26, 1976, she went to a lounge about 10 p.m. with Vickie Dean where she saw Sheila and defendant. Before leaving the tavern, Sheila, who was a prostitute, asked her whether she could take Richard Yarber (the deceased) back to her apartment and try to get some money out of him. She then left the tavern at about 3:30 a.m. with Sheila and Yarber who was already drunk when she arrived at the tavern. When Yarber drove them back to the apartment, he was driving slowly and "wobbly." He parked the car near the front of the apartment. Her babysitter, Tony Gordon, left immediately upon their return. After a few drinks at the apartment, Sheila and Yarber went into the children's bedroom. At this time, defendant and Vickie Dean arrived at the apartment. Sheila then came out of the bedroom and said she had only gotten $4 from Yarber and left.
Defendant went into the bedroom, saying that Yarber had some money, and he was going to get it. Defendant closed the door, and she then heard some "bumping and struggling" noises. She also heard defendant tell Yarber to give him his money because he knew he had it, and Yarber replied that he did not have any. When she went into the bedroom and saw defendant strike Yarber in the face with his hand, she told him to stop because he was waking the children. Upon going into the washroom, she heard glass breaking from the bedroom. Defendant walked out of the bedroom and said that Yarber had jumped out of the window, although he had tried to hold him.
Johnson further testified that defendant then went outside into the alley and called to her to pour water out of the window to "scrub up the blood on the concrete." Defendant later returned to the apartment and told them to pack up food, dress the children, and go to his apartment and pretend they had been there for the entire weekend. This witness refused and called the police. Before the police arrived, Tony Gordon had returned.
Johnson further related she first told the investigating officer that deceased had come to the apartment with a person named Janet Austin, and that both had asked to use the bedroom to talk. She told police that shortly thereafter an argument started; she heard the sound of cracking glass; and Miss Austin ran out of the bedroom and left the apartment. She further told them she then called defendant, and he came over.
Vicki Dean testified that on March 26, 1976, she had been with Lutherene Johnson all day getting "high." They arrived at the lounge where she saw Marlo and Joseph who were friends of Johnson's. She left the lounge at about 3:45 a.m. with defendant and went to the apartment. Upon arriving there, Johnson was drinking, and she heard sounds from the bedroom like the rocking of a bed. Sheila came out of the bedroom, stated that Yarber only had $4, and left. Defendant then said the man had some money and he was going to get it. He went into the bedroom and she heard a lot of thumping sounds and then the sound of breaking glass. When she ran into the bedroom, she looked out the window and saw a man on the ground.
Defendant left the apartment and called up to throw some water down. He then returned to the apartment and suggested they take food and pretend they had been in his house all weekend. However, Dean said Johnson refused and called her mother before calling the police.
Officer Joseph Murphy testified that upon investigating the incident at about 5 or 6 a.m. he went to the third-floor bedroom and observed spots that appeared to be blood on the wall. He looked out the window of the bedroom and saw nothing in the alley immediately below the window. However, upon investigating the alley, he noticed several fragments of glass and immediately below the window there was a spot of what appeared to be blood. The officer identified a photograph that showed the body of the deceased lying adjacent to a garage in the rear of the building.
The officer testified he confronted Johnson and told her that the position of the body was inconsistent with the story she had given him. He had another conversation with her and thereafter arrested defendant.
At police headquarters, defendant was again advised of his constitutional rights, and he stated he was not in the apartment at the time Yarber (the deceased) went out the window. Defendant was also asked if he could explain the presence of what appeared to be bloodstains on the lower portion of his trousers and on his shoes. Defendant told police he got the bloodstains when he was trying to break up a fight between Yarber and two other individuals who were in the apartment. He denied either robbing or striking Yarber.
Officer Murphy further testified that upon leaving the building his partner found the deceased's billfold lying on the grass immediately off the sidewalk. The wallet contained identification but no money. There was also a bill of sale for a 1968 Chevrolet. A full description and vehicle identification number of the car was obtained, but the car was never found.
It was stipulated that the bloodstains taken from defendant's clothing matched the blood type of the decedent. It was also stipulated that the cause of death was "multiple injuries" and an analysis of the decedent's blood showed 197 milligrams percent ...