Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. James M. Bailey, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Following a jury verdict of guilty, defendant was convicted, in the circuit court of Cook County, of the offenses of murder and attempted armed robbery in connection with the shooting death of Sam Blue. He was sentenced to 60 to 80 years in the penitentiary. The appellate court reversed (63 Ill. App.3d 953), and we granted the State leave to appeal.
The State contests both of the appellate court's alternative grounds for reversal of defendant's conviction, which were: (1) the trial court erred in allowing testimony of a prosecution witness regarding the contents of a letter which had not been received in evidence; and (2) the opening statement of the prosecutor resulted in substantial prejudice to the defendant.
At approximately midnight on the night of July 28, 1974, Sam Blue died of a bullet wound in the chest while outside his grocery store on the corner of 60th Place and Halsted Street in Chicago. A somewhat detailed review of the testimony is necessary.
For the State, Leo Carter testified as follows. On the evening of July 28, 1974, between 11:30 p.m. and midnight, Carter was standing on a basketball court across the street from Blue's grocery. Defendant, whom Carter had known for over a year, stood nearby talking to two others. Blue was standing outside his store talking to a woman. When the woman left, defendant and his two companions crossed the street and approached Blue. Carter saw the defendant grab Blue around the neck and put his hand up to Blue's head, but could not determine whether defendant had a gun in his hand. Defendant and Blue wrestled briefly, and a gun was fired. The two individuals who had been with defendant ran down Halsted Street, while defendant ran in another direction. Blue began to chase and shoot at the defendant but, after firing three or four shots, fell near the side of his store.
Subsequent to the shooting, Carter testified he and Leslie Scott, also an eyewitness, went to Carter's house and then to a local lounge. There they again saw defendant, who had since removed his shirt. While at the lounge, Carter learned that Blue had died. After a short while, Carter and Scott left the lounge and were thereafter stopped by the police. At that time, Carter, because he did not want to get involved, told the police that he knew nothing about the shooting of Blue. Upon being taken to the hospital, however, and being shown Blue's body, he told the police that defendant, while in the company of two others, had shot Blue. Later at the police station, Carter gave the police a written statement to that effect. The police presented a group of photographs to Carter, who identified defendant out of this group as the man who shot Blue. Carter again identified the photo at trial, and made an in-court identification of the defendant.
Carter stated that, on September 23, 1974, both he and Scott testified at defendant's preliminary hearing in connection with the Blue shooting.
Over defendant's objection made in a motion in limine on the first day of trial, Carter testified to an occurrence on June 14, 1975. On that date, at approximately midnight, Carter was with his brother Henry and Leslie Scott behind a building in the 600 block of West 60th Place. Defendant's brother, Michael Baptist, and three others, Wayne Lindsey, Lenox Lawrence and John Perkins, forced Scott and the two Carter brothers to stand against the wall of the building. Lindsey drew a gun and shot Leo Carter in the head and back. Leo's brother Henry and Leslie Scott were similarly shot. Leo survived, but Henry and Scott died as a result of the shootings.
Leslie Scott's preliminary hearing testimony was introduced by the State, and reads as follows. While standing in the vicinity of 60th Place and Halsted on the night of the Blue shooting, Scott was approached and asked by defendant if he wanted to assist defendant in a robbery. Defendant displayed a handgun during this conversation. Scott declined and walked away from defendant toward a vacant lot about 50 feet from where Blue was standing. Scott stated that, although it was dark, there were street lights on the corner and, when he looked back, Scott saw defendant and the two others approach Blue. It appeared to Scott that defendant put the gun to Blue's head. Scott heard three shots, saw Blue start to run after defendant, and then saw Blue fall.
Annie Carter, Leo's sister, also testified at trial for the State. She had known the defendant and his brother Michael for two or three years. Over defendant's objection, Annie stated that, in late August of 1974, the month following the Blue shooting, she received a letter that had been mailed to her. The return bore defendant's name and address at the Cook County jail. The letter was signed at the bottom with the name "Eli," the name by which Annie knew the defendant. It stated that he liked Annie and her family but that, if Leo testified against him, he would have his brother and cousin do something to her family. Annie stated further that she did not show the letter to the police prior to Leo's shooting because she did not know that anything was going to happen to her brother and that, after her brother was shot, she did not show the letter to police because she was afraid. It was only one day prior to trial that Annie told the prosecution about the letter. We note that the record indicates the letter was made known to the court during defendant's motion in limine, referred to earlier. Annie testified that she could not produce the letter because it was engulfed in a fire that destroyed her house about two weeks earlier.
Investigator Kentalla of the Chicago Police Department testified that at approximately 1 a.m., on July 29, 1974, he was assigned to investigate a homicide in the vicinity of 60th Place and Halsted. He testified that, at the corner location of Blue's grocery store, he found a small pool of blood on the sidewalk alongside of the building. The investigator also stated that he displayed to Leo Carter the photographs from which Leo had identified the defendant and otherwise fully corroborated Leo's testimony regarding Leo's identification of the photograph of defendant.
The final witness for the State, Investigator Herman of the Chicago Police Department, testified as to the June 14, 1975, shootings of Leslie Scott and the Carter brothers. He stated that he discovered the bodies identified as Henry Carter and Leslie Scott, then went to the hospital and talked to Leo Carter. Michael Baptist, Wayne Lindsey, Lenox Lawrence and John Perkins were subsequently arrested for these shootings.
Carl Dawson, a correctional officer at the Cook County jail, was called as a defense witness. Dawson testified that on July 28, 1974, he had worked the evening shift, and, upon leaving work at about midnight, drove his automobile toward his destination at 71st Street and Halsted. En route, traveling at approximately 25 miles per hour, he passed the intersection of 60th Place and Halsted. He observed a man standing against a wall, his hands in the air, and three men facing him, then saw three flashes from a gun and heard the shots. After traveling a short distance, Dawson made a U-turn and returned to the scene. He saw three individuals run in the same direction on 60th Place and into an alley. He searched for and located a police car nearby, told the two officers in the car about the shooting, and then proceeded to his destination. Shortly thereafter, he returned to the scene and ...