APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
After a jury trial defendant was found guilty of the murder of Thomas Johnson and the involuntary manslaughter of James Reed and was sentenced to serve concurrent sentences of 35 to 60 years for murder and three to nine years for involuntary manslaughter. Defendant appeals.
The issues presented for review are (1) whether the prosecutor withheld allegedly exculpatory evidence from defendant; (2) whether defendant was denied a fair trial because of allegedly improper prosecutorial conduct in cross-examination of Euna Parker and in closing argument; (3) whether in ruling on an objection the court advised the jury that it believed defendant to be guilty; (4) whether the trial court improperly limited defense counsel's opening argument; (5) whether the court improperly limited defense counsel's cross-examination of Eric Johnson *fn1 in regard to his possible interest in testifying against defendant; (6) whether the prosecutor improperly presented evidence to the jury that defendant had a prior criminal record; (7) whether the court erred in granting the State a 40-day extension of the trial term; and (8) whether defendant was convicted of murder and involuntary manslaughter beyond a reasonable doubt.
On April 6, 1973, at approximately 4 p.m., Thomas Johnson was shot and killed while driving his car in an alley near 63rd Street and Ellis Avenue in Chicago. Thomas Johnson's car then struck and killed James Reed. Defendant was arrested in May 1974 in Washington, D.C., and charged with the murders of Johnson and Reed.
On March 8, 1976, prior to trial, the State filed a motion for an extension of the trial term under the Fourth Term Act (Ill. Rev. Stat. 1975, ch. 38, par. 103-5) to secure the presence of a witness, Eric Johnson, at trial. The following evidence was presented by the State in support of their motion.
Gerald Rochowicz, a sheriff's police investigator, testified that he made numerous attempts to contact Eric Johnson in January and February 1976, including attempts to serve Johnson with five or six subpoenas. Rochowicz also contacted Eric Johnson's girl friend, aunt, roommate and the building manager at Johnson's apartment in his efforts to locate the witness.
Assistant State's Attorney Agran testified that he had personally spoken with Eric Johnson in December 1975 and that the witness assured Agran that he would be available to testify at trial. Agran arranged two appointments to interview Johnson. Johnson failed to appear for the interviews, and Agran enlisted investigator Rochowicz to locate Johnson. Agran learned that on March 27, 1976, Eric Johnson was scheduled to appear under an assumed name in "gun court." He stated that there was reason to believe that the witness' presence at trial in the case at bar be secured because Johnson had been present at previous court appearances in "gun court."
The court ruled that the State had demonstrated due diligence and the court granted a 40-day extension of the trial term.
At trial Eric Johnson testified that at approximately 4 p.m. on April 6, 1973, he was standing on a corner at 63rd Street and Ellis Avenue in Chicago. He observed defendant, whom he had seen on two prior occasions, "just standing around and talking." Johnson observed a white Pontiac driven by Thomas Johnson stop directly across the street and then "accelerate down the alley." As Thomas drove down the alley, defendant drew a gun and fired six shots in the direction of the white car.
Eric fled after the incident, but he later told a friend of Thomas Johnson that he had witnessed the shooting. On May 3, 1973, the mother of Thomas Johnson contacted Eric Johnson and asked if Eric would speak to the police. Accompanied by police officers, Eric proceeded to the police station and viewed 17 photographs. He identified defendant in a photograph as the assailant of Thomas Johnson. Eric again identified defendant in a lineup held on May 14, 1974.
Thelma Rembert and her foster daughter Victoria Lynch testified that at 4 p.m. on April 6, 1973, they were sitting on their porch which overlooked an alley leading to Ellis Avenue. They heard "gun shots" and saw a white car "speeding down the alley out of control." The car then hit an old man walking his dog, hit a post and "stopped in front of our house."
George Edgar, a Chicago police officer, testified that at approximately 3:45 p.m. on April 6, 1973, he had a conversation with Ken Wright *fn2 and Thomas Johnson near 63rd Street. Edgar observed Thomas Johnson drive away in a white automobile and shortly thereafter Edgar heard gunshots. Edgar proceeded to Ellis Avenue where he observed a woman *fn3 had been shot, suffering only a "flesh wound." Edgar then found an old man, later identified as James Reed, lying in the alley. Further in the alley Officer Edgar found Thomas Johnson "slumped over the wheel of the car."
It was stipulated that Dr. Shalgos, a Cook County coroner's pathologist, would testify that Thomas Johnson died as a result of internal injuries from a .38-caliber bullet wound, and James Reed's death resulted from "extreme skull fractures" caused by the impact of an automobile.
Euna Parker, a social worker residing in Texas at the time of trial, testified for the defense as follows: On April 7, 1973, she was walking on Ellis Avenue and observed a "17 to 18-year-old man with a baby face" shoot at a white car. At the police station Ms. Parker viewed 17 photographs, but she could not identify anyone as the assailant. She testified that after she had moved to Texas, State's Attorney Agran sent her a photograph of a lineup which included defendant, but that she could not identify anyone in the picture as the shooter.
Investigator Martin testified that Euna Parker had viewed only five or six photographs, not 17 as she had testified. He testified that she never told him that defendant was not the shooter; that Euna Parker told him that the photograph of defendant "was close" and "resembled the man that did the shooting."
The jury found defendant guilty of the murder of Thomas Johnson and of the involuntary manslaughter of James Reed.
1 Defendant contends that the State withheld from defense counsel allegedly exculpatory evidence that Euna Parker was unable to identify defendant as the assailant. In Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, the United States Supreme Court held that an accused is denied a fair trial when the prosecution withholds exculpatory evidence from the accused until after trial. However, in United States v. Agurs (1976), 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392, the Supreme Court held that the prosecutor's failure to disclose exculpatory evidence must be "material" and result in the denial of a fair trial. The court defined "materiality" as omitted evidence which creates a reasonable doubt of guilt that did not otherwise exist. The Agurs court further held that the mere possibility that evidence "might have aided the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense."
2 In the case at bar, while the fact that Euna Parker failed to identify defendant as the assailant is arguably favorable to the accused, it is not alone sufficient to raise a reasonable doubt which would require reversal. See People v. Owens (1st Dist. 1977), 46 Ill. App.3d 978, 990, 361 N.E.2d 644; also see People v. Starr (5th Dist. 1976), 37 Ill. App.3d 495, 498, 346 N.E.2d 410.
Euna Parker's inability to identify defendant raises only an issue as to the credibility of the witness Eric Johnson. Where identification is at issue the testimony of a single witness is sufficient to convict defendant if the witness is credible. (People v. Gonzales (1st Dist. 1978), 60 Ill. App.3d 980, 989, 377 N.E.2d 91.) Thus if the jury believed Eric Johnson's testimony, it was sufficient to convict defendant.
Defendant cites People v. Elston (4th Dist. 1977), 46 Ill. App.3d 103, 360 N.E.2d 518, as authority that the mere failure of a witness to identify a defendant is exculpatory evidence. In Elston four or five witnesses were shown a lineup which included defendant Elston. Two witnesses could not identify defendant, and two witnesses identified someone other than defendant. Additionally, each witness was shown five black and white photographs of other individuals and a color polaroid shot of defendant. Two witnesses identified the polaroid photograph, and two witnesses could not identify anyone. The court found the suggestiveness of the color photograph, coupled with the series of nondisclosures, denied defendant a fair trial.
Elston is distinguishable from the case at bar. Here there was only one alleged nondisclosure of a failure to identify defendant and no misidentification by the witness, whereas in Elston several witnesses failed to identify or identified someone else as perpetrator of the crime. Under the "materiality" test of Agurs, the evidence does not "create a reasonable doubt that did not otherwise exist."
3 Furthermore, we note that Euna Parker was listed as a possible State's witness in a list of witnesses furnished to defendant before trial. Also after the State rested its case, defense counsel was informed that Euna Parker had failed to identify defendant. Assuming arguendo that her failure to identify defendant was "material" exculpatory evidence, the record does not show that defendant was severely prejudiced because Euna Parker testified in defendant's behalf. In People v. Tate (1976), 63 Ill.2d 105, 112, 345 N.E.2d 480, defendant contended that the State withheld exculpatory testimony found in the grand jury testimony of a witness until that witness testified at trial. The court held that the failure to furnish the exculpatory evidence to defendant before trial did not violate Brady v. Maryland and did not unduly prejudice ...