APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and received a sentence of 50 to 100 years. On appeal, he contends he was denied a fair trial because (1) the prosecutor asked him questions on cross-examination which insinuated that the co-defendants had implicated him in the crime, but failed to prove such accusations on rebuttal, (2) the prosecutor's closing argument shifted the burden of proof regarding missing witnesses to defendant, (3) during the trial, members of the jury read newspaper accounts of a co-defendant's trial and conviction and, (4) the trial court instructed the jury on felony murder even though there was no evidence that defendant was attempting to commit armed robbery. Defendant further contends that (5) the trial court erred in allowing expert testimony which was based upon speculation, and (6) his sentence is excessive.
The following pertinent evidence was adduced at trial.
William Leubscher, Evergreen Park Police Officer
At approximately 11:40 p.m. on July 19, 1973, he received a radio message concerning a shooting and proceeded immediately to the M & R Theater in the Evergreen Plaza Shopping Center. When he entered the theater lobby he observed an elderly white male, later identified as Karl Hyle, lying on his back just outside of the office. He and Officer Watson, who had also arrived, attempted to revive the man, but realized he was dead. He observed a "spent bullet casing" on the floor about a foot from the dead man's body. The theater office is located in the northeast corner of the lobby and has a safe on the south wall. He observed a hole on the east wall of the office, directly behind a desk and chair. Hyle's body was taken to a hospital where Leubscher removed the blood soaked clothes and observed a hole in the left chest and a laceration along the left temple.
John Charters, Assistant Manager of the M & R Evergreen Park Theater
He was on duty during the day of July 19, 1973, and was relieved by Karl Hyle at approximately 4 p.m. At that time he gave Hyle the key to the office safe. Two keys are required to open the safe, the second being in the possession of a messenger from the armored guard service which picks up the money. At closing time the manager would deposit the money from the cashier into the safe.
John Watson, Evergreen Park Police Officer
He substantially corroborated the testimony of Officer Leubscher. After attempting to assist Hyle, he recovered an expended cartridge casing from the floor approximately a foot from Hyle's body and a spent bullet from the floor in the office. He identified these at trial.
She resides at 9831 S. Leavitt in Chicago. At about 8:30 a.m. on July 20, 1973, she discovered a shoulder bag on the driveway with a package of cigarettes and an open box of bullets lying nearby. She called the police and two officers arrived. She observed one of the officers inspect the items in the bag, including a card with names and numbers. The name "Collins" was definitely on the card. The police took the shoulder bag and left. Several minutes later Officer Thomas Faragoi and another officer arrived and proceeded to search her backyard and alley area.
Thomas Faragoi, Chicago Police Officer
At approximately 9 a.m. on July 20, 1973, he went to the Evergreen Park Police Station, had a conversation with several officers and at approximately 10:30 a.m. proceeded to 9831 South Leavitt. Officer Shay arrived five minutes later and the two officers began to search the area for evidence or possibly a suspect. As they were conducting the search, he observed a male Negro running northbound on Hamilton Avenue, the street east of Leavitt. He immediately returned to the squad car and approximately 10 minutes later he and Shay arrested Collins in a restaurant at 2139 W. 95th Street.
Kenneth Christiano, Chicago Police Investigator
He interviewed Joseph Collins at the Evergreen Park Police Station at approximately 10:30 p.m. on July 20, 1973. Collins admitted to taking a pouch into the theater, but stated that it was "Archie's." Collins denied having a gun. Christiano told Collins that "if the gun had not been fired we could prove it with a test." Collins then told him that he had put the gun underneath some high bushes near an alley where he had stayed all night. Collins had dropped the pouch while running through a yard and into the alley. Christiano proceeded to 9827 S. Leavitt where he found a 9mm Browning automatic pistol buried under the bushes in the yard. The pistol was "in the cocked position with the safety off." He identified People's Exhibit 20 as this pistol.
On cross-examination he testified that Adrienne Taylor had told him that Collins had entered the theater with a pouch.
James O'Neill, Chicago Police Officer
While on patrol at approximately 11:40 p.m. on July 19, 1973, with Officer Urban, he "received a simulcast of a robbery and shooting" at the Evergreen Park Theater. He also received a physical description of two suspects. A short time later he observed a "husky male Negro," later identified as Archie Smith, running across 96th Street near Hoyne Avenue and proceed to the front porch of 9558 S. Seeley. After attempting to open the door, Smith "threw something into the yard" and ...