APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendant, Thomas Morano, was sentenced to 7 to 15 years imprisonment after a jury in the circuit court of Cook County convicted him of attempted murder. (Ill. Rev. Stat. 1975, ch. 38, par. 8-4.) On appeal he contends he was deprived of a fair trial because: (1) the court did not correctly instruct the jury on the elements of attempted murder; (2) the prosecutor, in his closing argument, made improper comments; (3) the court allowed hearsay testimony to be introduced concerning identification of the defendant; and (4) the court unfairly admitted prejudicial photographs of the defendant into evidence.
Albert Suma was shot and permanently paralyzed from the chest down. Both Suma and Judith Hull, his companion on the night he was shot, testified that before the shooting they had visited several taverns in Chicago, Illinois. Sometime between 11:30 and midnight on Saturday, February 22, 1975, they left a tavern, intending to drive to either Hull's home or to another tavern. As Suma merged his car on to the Stevenson Expressway entrance, a black 1973 or 1974 Cadillac sped by, almost colliding with him and forcing him into a guardrail. The Cadillac did not stop but continued on to the expressway, traveling west. Suma inspected the damage to his car, then chased after the Cadillac, hoping to get its license number. He overtook the Cadillac and noted the license number, TM 336. Both Suma and Hull stated that they saw two persons sitting in the front seat of the Cadillac.
Suma said the Cadillac veered from lane to lane in front of him, preventing him from exiting the expressway. While both cars were in the right lane of the expressway, the Cadillac unexpectedly stopped, causing Suma to halt his car 10 to 15 feet behind it. The man driving the Cadillac got out of it and rapidly walked toward Suma's car. Suma and Hull described the driver as a white man with dark hair in his 20's, 5'6" or 7" tall weighing about 160 lbs. Hull said she noted that he carried a .38 caliber gun in his hand as he walked toward their car.
Suma opened his car door. The driver of the Cadillac was by that time less than two feet away from him. Suma stated he looked up at the driver. The driver simultaneously kicked the car door shut and shot Suma in the chest. Suma turned to Hull, repeated the license number of the Cadillac, TM 336, and passed out. Hull wrote the number in the dust on the dashboard of Suma's car.
Suma made an in-court identification of Morano as the man from the Cadillac who shot him. He also testified that he was shown four or five photographs of different men by the police and asked to pick out the person who shot him. Suma said he chose Morano's photo.
Hull made an in-court identification of Morano as the man who shot Suma. She testified that she was shown five or six photographs by the police, and identified Morano's picture from this group. On direct examination she said she also identified Morano out of a group of men at a police lineup. She denied that anyone described his appearance to her before the lineup.
Glenn and Rita Lesniak also witnessed the shooting on the Stevenson Expressway. Their description of the incident corroborated the version given by Suma and Hull. They testified that the man who approached Suma's car was a white male in his 20's with black hair, 5'7" or 8" tall and weighing 155 to 160 lbs. At trial both said Morano looked like that man, although they stopped short of making a positive identification of him. They said they viewed a lineup at a police station. Glenn Lesniak said he chose Morano out of the lineup as looking like the man who did the shooting on the expressway but he could not positively identify him. Rita Lesniak testified in court that Morano looked like the man who did the shooting. She said that at the lineup she did not pick him out because she was not "100% positive" that it was he.
Several policemen testified about the incident and the investigation of it. Officer Ptak said he showed five or six police department photographs to Hull. He testified she identified the pictures and that Morano's picture was in the group. He also showed the pictures, including the defendant's, to Suma. Suma, according to Ptak, identified one picture from that group as the picture of his assailant, saying, "This is the man." Upon objection by Morano, the latter remark was stricken from the record and the jury cautioned to disregard it. The photographs used for the identification, however, were admitted into evidence over Morano's objection, after all writing on them was blanked out. Officer Crescenzo testified that he conducted a lineup at a police station several months after the shooting. On cross-examination, he said he did not tell any person who viewed the lineup anything about the defendant. Another State's witness said that in April 1975, he purchased a 1974 black Cadillac from Morano.
During the trial the Assistant State's Attorney, Michael Agran, testified that after Hull's appearance in court, she told him that her testimony concerning her lineup identification of Morano was untrue. She said she was told ahead of time by a police officer, not Crescenzo, what Morano would wear and what he looked like so that she could easily pick him out. Hull testified a second time and admitted this. Although she said her identification of Morano was not positive, she was fairly sure that he was the man who shot Suma.
Morano, Michael DiFoggio and Angeline Worth, testified for the defense. Morano said that on February 22, 1975, at about 2 p.m., he went to a bar in Chicago called the Play Spot. He stayed there for about two hours, had several drinks and went home. He drove back to the bar at about 8:30 or 9 p.m, that evening in his car, a 1974 black Cadillac with license plate TM 336. He said he drank heavily and that about 11:30 p.m., he fell asleep on the bar. His friend DiFoggio, the bartender, woke him, took his car keys from him and drove him home. They rode in DiFoggio's car, leaving Morano's Cadillac near the bar.
Morano said that about 1:30 a.m., while at his home, his father woke him and told him that the police were looking for him because his car was involved in a shooting. He testified he went back to the Play Spot at 2 a.m., and asked DiFoggio for the keys to the Cadillac, explaining that the car was involved in a shooting. Morano asserted that he looked outside the Play Spot for his car but could not find it.
DiFoggio's testimony substantially corroborates the testimony of Morano. However, he stated that he never reported anything about it to the police. DiFoggio denied giving the Cadillac keys to anyone that night and testified that he was not aware of what Morano did between 11:30 p.m. and 2 a.m. after he left him at home. He said that at 3 a.m., when the Play Spot closed, he and Morano drove around the vicinity in DiFoggio's car, looking for the Cadillac. They did not find it. After several hours, DiFoggio drove to Morano's cousin's house in Cicero, Illinois and left Morano there.
Morano said he borrowed money from his cousin and rented a room under an assumed name where he lived until May 1975. During the time he stayed at the rooming house, both Morano and his sister, Angeline Worth, testified that they spoke to each other frequently over the phone. During the conversations Worth told him that the police and others were looking for him and wanted to ...