APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants were each found guilty of the murder of Mark Butterly, the attempt murder of John Sigle, and the aggravated battery of John Sigle. (Ill. Rev. Stat. 1975, ch. 38, pars. 9-1, 9-1 and 8-4, and 12-4(b)(1).) Defendant Belvedere was also found guilty of the attempt murder of John Beuchner. Defendants were sentenced to terms of 75 to 200 years for the murder, 25 to 50 years for the attempt murder of John Sigle, and 3 to 10 years for the aggravated battery. Additionally defendant Belvedere was sentenced to 25 to 50 years for the attempt murder of John Beuchner. The sentenced are to run concurrently.
In consolidated appeals, defendants contend that they should be granted a new trial because (1) they were denied a fair trial when the prosecutor was permitted to elicit testimony from a State's witness regarding defendant Belvedere's alleged attempt to coerce the witness to testify favorably in his behalf, and to examine the witness as to whether the person who supplied her heroin, with which she tried to commit suicide, was a friend of defendants; (2) they were denied a fair trial because the court erred in permitting a former prosecutor to testify, express his personal belief as to defendants' guilt, and relate the hearsay testimony of ten other witnesses; (3) the trial court improperly permitted the prosecution to introduce into evidence defendant Bailey's prior narcotic conviction; (4) the prosecutors made prejudicial remarks during their closing arguments; and (5) the sentences were excessive. We affirm the trial court.
During the early morning hours of August 3, 1975, while in the vicinity of the Hasty Grill Restaurant, Mark Butterly was killed after having been repeatedly struck by defendants with an automobile jack and jack handle, and John Sigle was allegedly beaten with the same automobile jack and jack handle. Moreover, John Buechner, during the same incident, was struck by an automobile operated by defendants. The pertinent testimony follows.
Joseph Peters testified that on August 3, he worked as a part time grill man at the Hasty Grill which is located at 1801 West North Avenue, Melrose Park, Illinois. He arrived at the Hasty Grill around 5:30 a.m. to relieve Bill Parker, the regular grill man. When he entered the grill he saw four boys on the west end and two boys and two girls on the east end. After he washed up, he came out of the washroom and noticed the place was empty except for Parker, the grill man, and a young girl. He looked outside and on the far west side of the parking lot, near the funeral parlor, he heard shouting and saw two men in a white convertible Buick driving back and forth and saw the Buick "brush" a boy. The boys got away from the car and then the car turned around and knocked two of the boys out on North Avenue. Later he saw someone striking a Volkswagen on the driver's side with a jack handle. Then he observed the fellow with the jack handle hit the young boy in the head as the boy was getting out of the Volkswagen. The boy was hit with the jack handle again and he fell to the ground. Then the other fellow hit the boy two or three times on the head with the jack part while the boy was on the ground. Peters tried to make a telephone call to the police, but the girl in the grill tried to prevent him from doing so by hitting him with the telephone receiver. Nevertheless, he finally contacted the police. After the police arrived, he went outside and saw the boy on the ground with blood coming out of his mouth. He later identified the man he saw with the full jack as Belvedere.
Cynthia Saccomanno (hereinafter Cindy) testified that on August 3, she was with Ursula Rumas at the Tenement West lounge and that defendants arrived at about 3 a.m. She had known Belvedere two years and Bailey nine months. Each of them had several alcoholic drinks at the lounge. They left in Belvedere's white convertible Buick and drove to the Hasty Grill. While sitting at the counter Cindy got into an argument with Belvedere and he punched her in the mouth. She fell to the floor. Belvedere then dragged her to the parking lot and started beating her. She heard somebody say "don't hit a girl, she's bleeding, bring her to the hospital or call an ambulance." After the beating, she started walking and reached 19th Avenue and Bloomingdale in Melrose Park when a car, occupied by defendants, stopped. Bailey got out of the car and started kicking her in the face with his foot. He knocked her to the ground and kicked her three times in the face.
On cross-examination she admitted that when she left the Tenement West lounge with defendants, all of them were under the influence of intoxicating liquor.
Police Officer Michael Klugger testified that after receiving a radio dispatch call of a murder at the Hasty Grill, he proceeded westbound on North Avenue and as he approached 15th Avenue he observed a white Buick convertible coming southbound on 15th; it made a left-hand turn through the red light and proceeded east on North Avenue. There were two white males in the front seat of the vehicle, and the driver of the automobile looked directly at him. He identified the driver as Belvedere. Upon his arrival at the Hasty Grill he observed the decedent lying on his right side in front of a Volkswagen vehicle. The victim's head was in a pool of blood. When he looked at the vehicle, he observed that the rear window on the driver's side was broken out.
John Beuchner testified that on August 2, he was a waiter at the Rusty Scupper Restaurant at O'Hare Plaza. Decedent had formerly worked as a waiter at this restaurant but had been transferred to the Rusty Scupper Restaurant on Clark Street in Chicago. Decedent and John Sigle, also a waiter at the Rusty Scupper on Clark Street, came by the O'Hare Plaza restaurant before it closed. They had planned to attend a going-away party for a cook who was leaving for college. The party was to be held at the home of the manager of the O'Hare restaurant. Beuchner arrived at the party at 2:30 a.m. and John Sigle, Pat Angelo and decedent were already there. He said that he had imbibed one rum and coke while still at the restaurant and had consumed one beer at the party. He left the party at 4:30 a.m. with Sigle, Angelo and decedent who was driving Sigle's Volkswagen and together they went to the Hasty Grill. When they arrived, Beuchner ordered breakfast. He then noticed a man dragging a girl by her hair out of the door. As the girl was dragged out, she hit against the side of the door and he heard decedent say, "That is no way to treat a girl. What are you doing? Are you beating up on this girl?" He heard the other man holding the door reply, "Mind your own business. It does not concern you." He identified Belvedere as the man he saw dragging the girl out of the Hasty Grill and Bailey as the man he saw standing holding the door open.
Beuchner further testified that he observed a trickle of blood coming from the girl's mouth. He saw her get up, swear at the shorter man and walk away. He went back into the restaurant. He then heard Sigle say, "Beuchner, they're beating on the girl. Let's go out there." He followed Sigle outside and saw defendants, Angelo and decedent facing each other. He heard both Angelo and decedent tell defendants to get into their car and leave. Decedent told them to "get the hell out of here." Belvedere then got in the driver's side and Bailey got in on the passenger's side of a white two-door convertible Buick. The car was put in drive, proceeded forward, and made a "swipe" at the four of them. They dodged the car. The driver stopped, put the car in reverse and made another "swipe" at them. Beuchner ran with Sigle and Angelo to the wall by the funeral home; decedent, however, remained out on the drive. The car continued to attempt to strike decedent. Beuchner ran out to decedent and was standing beside him when the car struck them both and knocked them down. They got up and the car then made another "swipe" at them, just missing. He saw decedent and Sigle get into the Volkswagen, but since he had the license number of the white convertible he started for the Hasty Grill. He had one shoe off and his leg felt asleep and twice as large as was normal and he was hobbling. He looked over his shoulder and saw two men, whom he later identified as Belvedere and Bailey, beating on the driver's side of the Volkswagen. When he got into the restaurant, he shouted for somebody to call the police. He went outside the restaurant and saw decedent on the ground with his head lying in a pool of blood. He observed that Sigle's back and hand were cut.
Patrick John Angelo testified that on August 2, he was a waiter at the O'Hare Rusty Scupper Restaurant and was a graduate of Loyola University where he had met decedent. He also attended the same party as Beuchner, Sigle and the decedent. While at the party he had one beer. He left the party at approximately 4:30 a.m. or 4:45 a.m. with Beuchner, Sigle and decedent in Sigle's Volkswagen automobile. They went to the Hasty Grill. At the Hasty Grill, he saw a man hit a girl and drag her by her hair to the door. He observed decedent get up from his seat and go over to the two men who were with the girl and tell them that they should not hit a lady. He heard one of the men say "Stay away, back off. You are going to get hurt and it's none of your business." He identified Belvedere as the man who struck the girl and Bailey as the person who spoke to decedent. He further testified that he pushed decedent back and told him to leave the men alone. He looked out the side window of the restaurant and saw a white Buick convertible pull up to the girl who previously had been hit. Belvedere, the driver, got out, punched the girl in the face and kicked her. Angelo stated that he walked out of the restaurant, went over to the automobile, and told Belvedere, who was standing over the girl, to leave and that the police had been called. He was followed to the automobile by decedent who asked "Why are you hitting this girl? What in the hell is wrong with you?" He observed that Beuchner and Sigle had also arrived at the car. Belvedere then got in the driver's seat and Bailey into the passenger's side of the car. He saw the car come toward him. He ran toward the Hasty Grill. He saw Belvedere back the car up, then go forward, and hit Beuchner and decedent with the front of the car, lifting them onto the top of the hood. The car then took off heading west. He saw Beuchner and Sigle get up and he went over to them. He then walked to the Hasty Grill to call the police. While he was on the phone, a girl who had remained in the restaurant swore at him and scratched him on the neck and ear. He pushed her into the aisle and she fell on a chair. He told the grill man to hold her while he made the call. He looked out the window and saw Belvedere with a jack and Bailey with a tire iron. He observed decedent sitting in the Volkswagen and then standing up with his hands covering his face. Belvedere then hit decedent on his head three times with the jack and Bailey hit decedent on his legs with the tire iron. As Angelo exited the Hasty Grill, he saw Belvedere with the full jack standing over decedent near his head and Bailey with the jack handle standing near decedent's legs. Bailey looked at him and took a few steps toward him. He saw Sigle, with his hand and back bloody, and told him to run and he ran with him. He and Sigle returned from a nearby apartment complex where they had gone for help and they went towards the Hasty Grill. As he approached the Hasty Grill he noticed police cars, saw decedent lying in a pool of blood, and went and felt his pulse and temple. Decedent had no pulse and he was not breathing. Angelo testified that he observed that the Volkswagen automobile roof on the driver's side was collapsed and the window was broken. He viewed photographs at the Melrose Park Police Station and identified Belvedere. On September 25, he observed a lineup held at the Cook County Jail and identified Bailey.
On cross-examination, Angelo admitted that he failed to tell the grand jury that Bailey hit decedent on the legs with the tire iron, and he conceded that two days before trial was the first time he had ever said that Bailey hit decedent on the legs with the tire iron.
John Sigle testified that in August of 1975, he was employed as an urban planner for the City of Chicago and as a waiter at the Rusty Scupper Warehouse in Chicago. While working there, he had become acquainted with Angelo, Beuchner, and decedent. On August 2, Sigle owned a 1973 Volkswagen automobile and loaned it to decedent and another person to attend a party for one of the cooks. Sigle left the Rusty Scupper about 12:30 a.m. and rode with a friend to the Rusty Scupper located in the O'Hare airport area. When he arrived there he saw decedent, Angelo and Beuchner. The four of them then went to the night manager's apartment for a party. Around 4:30 or 4:45 a.m., they left the party and went to the Hasty Grill. They rode in Sigle's Volkswagen which was driven by decedent. When they arrived at the Hasty Grill they ordered breakfast. While waiting for breakfast Sigle heard a commotion near the door area of the grill. He looked towards the counter and saw a lady being dragged by her hair across the floor. He identified Belvedere as the man who dragged the woman across the floor and Bailey as the man who was standing by the door holding it open. Decedent went to the door and told Belvedere to "lay off the girl and that was no way to treat a lady." Sigle heard Bailey tell decedent to "mind his own business or he'd get hurt or he'd get in trouble." Afterwards, the girl, who was bleeding profusely from her mouth and face, got up and wandered off. Belvedere and Bailey then got into a white Buick convertible. Sigle went back to the counter and sat down, and while he was waiting to be served, he heard Angelo say that they were "beating on" the girl again. Sigle looked into the parking lot and observed that the car had stopped and that Belvedere was outside of the car and the girl was on the ground. Sigle, Angelo, Beuchner and decedent went outside to help the girl. When Sigle arrived at the scene, he saw Belvedere beating the girl who was lying on the ground. The girl then got up and walked away. Decedent told Belvedere to leave the girl alone; Angelo told Belvedere that the police had been notified, were on their way to the scene and that he should get out of the area as quickly as possible. Belvedere began swearing, and then he and Bailey got into the Buick. Belvedere started the auto and began driving back and forth attempting to hit Sigle, Angelo, Beuchner and decedent. Sigle, Angelo and Beuchner ran to a funeral parlor north of the auto. Decedent was left standing by himself. While they were running, Belvedere drove the car in their direction, then put the car in reverse, started the car forward again and struck decedent and Beuchner. Both decedent and Beuchner were knocked onto North Avenue. The car left the parking lot and Sigle went over to them. Both of them were shaken and Beuchner complained that his leg hurt and he was holding his shoe. Sigle and decedent entered the Volkswagen auto and sat down, leaving the doors open. As Sigle was reaching for a pencil and paper to write down the license number of the auto, he heard a crashing sound and felt a blow to his left hand. He moved toward decedent and saw that Belvedere had hit him on the hand and hip with a car jack. He watched Bailey go around the car, and pull decedent out of the car. Belvedere also appeared on the driver's side of the car. Sigle got out of his side of the car and saw Bailey hit decedent on the head with a tire jack handle; decedent fell to the ground and Belvedere and Bailey then struck him with a tire jack and tire iron. Sigle's left eye and hip were injured and he ran with Angelo to some apartments across the street. When he returned to the scene, the police were there and decedent was lying on the ground in his blood. Sigle was taken to the hospital where it was disclosed that he had sustained a lacerated tendon on his left hand, eye lacerations and a fractured pelvis.
On cross-examination, Sigle admitted that he never testified before the grand jury that he saw Bailey pull decedent out of the car.
Ursula Rumas testified that on August 3, she had known Belvedere about eight or nine months and was "going out" with him. She also had known Bailey for about six years. She was with Belvedere, Bailey and Cindy Saccomanno at the Hasty Grill at about 5 a.m. on August 3. Belvedere told Cindy to shut up and she replied, "No guy is going to tell me to shut up." She stood up and Belvedere hit her, knocked her to the ground, and caused her mouth to bleed. A young man asked Ursula if she needed any help. She replied that she needed no help, and then the man told Belvedere and Bailey "that was no way to treat a lady." Belvedere grabbed Cindy by the hair and Bailey stood in front of her and they backed out. Ursula began crying while standing at the counter, looked towards her left, and saw Cindy walking towards the funeral parlor. She next heard a car screeching and glass breaking. As she continued to look out the window, she saw a Volkswagen auto and someone holding a crowbar on the driver's side of the car, but she could not see the person's face. A man ran in and said "[c]all the police." She saw Belvedere holding someone with his left hand and a pipe or something with his right. She ran up to the fellow on the phone and told him not to call the police. He knocked her down and then hung up the phone. He picked her up, apologized and went back to use the phone. She put her finger on the phone to tell him not to call the police. He told her that his friend was hurt and that he had to get him to the hospital. She went outside and saw a body lying alongside the Volkswagen. She walked up, checked his pulse, but could not feel any pulse. The police arrived and took her to Melrose Park Police Station where she gave a statement and was charged with a crime.
On September 30, Ursula appeared in court and the charge that had been placed against her was dismissed. After the dismissal, she received a grand jury subpoena calling for her to appear on October 8. On that day, she talked to Assistant State's Attorney Gertie who told her to return on October 16 with her lawyer and also informed her that the statement given at the Melrose Park Police Department did not "really fit in." On October 16, she did not testify in front of the grand jury but talked to Assistant State's Attorneys DeJohn and Vicaro. She then moved to the home of Pamela Kubes, a girlfriend.
On October 26, in response to a telephone call from Anthony Belvedere, defendant's brother, Ursula and Pamela left the house and went to a discotheque lounge. When she walked into the lounge she saw defendants, Belvedere and Bailey. Anthony walked in and joined defendants, Pam and Ursula at a table. Defendant Belvedere told Ursula that he liked what she had told the Melrose Park Police Department regarding the incident and that he wanted her to tell his lawyer that she saw blood on his face at the time of the incident. Although she did not recall seeing any blood, she agreed to tell his lawyer that she saw blood because she was afraid of him. Belvedere told her that "we should have killed them all." He further told her that he would take her to his lawyer the next day, and if she went, he would buy her things and they would go on a trip. She then left with the other four persons and rode with defendant Belvedere in his car to the Tenement West lounge. After leaving the Tenement West, she went with Belvedere to a restaurant. All five of them left the restaurant and Belvedere took her to his house where he made love to her.
On October 27, Ursula left Belvedere's house and he took her to her parents' home. From her parents' home she went to Cindy's house. She and Cindy then went to Mock's bar. While there, she met a guy who gave her some heroin. She took it and overdosed on it. She said that she injected this heroin in order to kill herself. She had taken heroin four or five years before this incident.
Ursula testified on cross-examination that neither she nor Bailey was under the influence of alcohol at the time of the incident. She also testified that she never told Penny Fuentes about the events at the Hasty Grill. In her evidence deposition, however, she stated that she had "lied" to Penny about the occurrence. Confronted during trial with the prior statement, Ursula testified that she had told the "fake" story to both Penny and Ann Fuentes. She further stated that she also lied to Pamela Kubes about the events of that morning.
She testified that a guy named Sherman offered her the heroin and that she did not know him but that Cindy did. The heroin consisted of "brown stuff" in a tinfoil packet. She got a kit, which consisted of a hypodermic needle, syringe and spoon, from Sherman and injected the heroin into her arm while in the bathroom. She did not pay for the heroin. She stumbled out to the bar and passed out.
Ursula admitted that in her statement to the Melrose Park Police Department she had said that Bailey was driven home because he was drunk. She also stated that in her police statement she put the crowbar in the hands of someone other than defendants because she was "afraid" of Belvedere.
On redirect examination, the prosecutor asked: "This fellow Sherman that gave you the heroin, you know if he knows either of the two defendants?" The defense objection to the question was sustained and the motion for mistrial was entertained and later denied.
John Gertie, former Assistant State's Attorney, testified that on September 30, he met Ursula Rumas in Oak Park, appeared in court and requested the court to dismiss the charge that had been placed against her. After the court dismissed the charge, an investigator served Ursula with a grand jury subpoena that commanded her to appear before the grand jury on October 8. No promises were made to Ursula; the charges against her were dropped because they could not be proven. On October 8, he had a conversation with her in the presence of her brother. After the conversation, the subpoena was continued to October 16. He told her brother to come back with her on that date, but to bring her attorney. On October 16, he saw her again but did not speak to her since he was on trial and had turned over the case to Assistant State's Attorneys DeJohn and Vicaro.
Gertie denied that he told Ursula what other witnesses had said but he admitted on cross-examination that he did say that other witnesses' versions of the event were different from hers. He also stated that he intended to convey to her that he thought she was lying.
Dr. Robert Stein, a pathologist, who was Director of Forensic Pathology of Cook County, testified that he performed a post-mortem examination of decedent on August 3. He observed several marks of violence consisting of contusions and lacerations about the head and body of the decedent. He testified that the cause of death was a cranial cerebral injury in association with traumatic laceration of the kidney and spleen.
Oreste Belvedere testified that he and Bailey went to the Tenement West lounge in the early morning hours of August 3, and met Ursula and Cindy. While there, he consumed 8 to 12 shots of gin. Bailey drank about the same amount but he was not drinking gin. Cindy and Ursula also had about the same number of drinks. The four of them left the Tenement West lounge after 5 a.m. and went to the Hasty Grill. They sat at the counter and ordered coffee. Cindy became loud and began complaining about the grill man telling her to shut up. Belvedere then told her to shut up and she started swearing and yelling at him. He lost his temper and slapped her with the back of his hand. She fell, then got up bleeding from her lip, and walked out. He told Bailey, "Let's get out of here." As they walked out, four men got up and followed them out. He and Bailey got into his white Buick and he drove in front of the Hasty Grill. As he got a little past the Hasty Grill, the four men who had followed them out of the grill started kicking his car, calling him names and telling him to "get the hell" out of the car. He got out of his car, and told them to go inside because he and Bailey did not want to fight with them. While he was talking, someone struck him in the mouth, breaking his dental plate and causing him to bleed. Bailey then got out of the car to help him and two of the men jumped on Bailey and started fighting. Belvedere got back into the car, backed up, and tried to turn the car closer to Bailey so that he could enter. Two of the men were struck by the car. Immediately after hitting them, Belvedere slammed on the brakes and the motor died. Bailey then jumped into the car and Belvedere heard someone shout, "Get the golf clubs." He got his jack and tire iron from the floor in the back seat of his car and he and Bailey followed the men toward the grill. One of the men jumped into the Volkswagen and reached for the glove box. Belvedere thought that he was reaching for a gun and yelled to Bailey, "[g]un." Then Belvedere hit the man sitting on the driver's side of the Volkswagen with the jack. He saw Bailey on the ground fighting with the other man. He turned around, swung the jack and knocked the man off Bailey. They then left the area in the car.
On the way to his apartment, they saw Cindy walking down the side street. They stopped, Bailey got out of the car, started talking to her, hit her and then got back in the car. They then drove to Bailey's apartment.
On cross-examination, Belvedere stated that when he approached the Volkswagen he hit the top of the car on the driver's side and broke the window. He admitted that he never saw a gun but thought that he had been struck by something that looked like a blackjack. He testified that he struck decedent once or twice and saw Bailey strike decedent several times with a tire iron. He further admitted that he took the license plates off his Buick and put them on a car belonging to Bailey, and that they took the jack and jack handle with them, but later threw them away on the highway.
Robert Bailey's testimony was substantially the same as Belvedere's regarding their activities prior to their arriving at the Hasty Grill. He stated that while sitting at the counter one of the girls knocked over her coffee. All of them started laughing and became a little loud. The grill man came over and told them to shut up. Cindy started moaning and saying, "Is he going to tell me to shut up," and Belvedere said to her, "Why don't you shut up." She replied, "No man is going to tell me to shut up." Belvedere then struck her in the face and she fell down. Her mouth was bleeding when she got up and she then ran for the door. Belvedere started for the door and three or four men came up behind him yelling, "That's no way to treat a lady." He told them to be nice and asked them "Why don't you guys mind your business?" He and Belvedere got into the car and Belvedere started driving out when he saw two men on the driver's side of the car and two on the passenger's side kicking the car and saying, "Come on. Get out of the car." Belvedere stopped the car, got out and walked back. Bailey saw that Belvedere's mouth was bleeding. He got out of the car and walked towards Belvedere but did not make it that far because he began fighting with two men on his side of the car. Belvedere jumped back in the car and started driving the car back and forth. While driving the car near to Bailey, he struck two men and knocked them to the ground. Bailey then ran and got in the car. He retrieved a jack handle and Belvedere retrieved a jack from the back seat of the car. They got out of the car and proceeded to the Volkswagen where two men were seated. As he and Belvedere approached the Volkswagen, he heard Belvedere yell, "gun." He did not see a gun that night. He looked into the Volkswagen and saw the man in the driver's seat reaching for the glove compartment. Bailey ran from the driver's side around to the passenger's side of the car. Using the jack handle, he hit the hand of the man reaching for the glove compartment. The man sitting in the passenger's side then tackled him and threw him on his back. Bailey began hitting the man on the back with the jack handle. The man he was fighting with let go and he got up. Belvedere came around to help him and the man let go after he was hit. Bailey was hit on the arm. He and Belvedere ran, jumped in the car, started it and drove away.
While driving, they saw Cindy walking down the street. Belvedere stopped the car and Bailey got out and said, "[b]itch, you caused a lot of trouble." He pushed her down, kicked at her, jumped back in the car, and they then drove off. They went to Bailey's house and Belvedere telephoned the grill, asked for Ursula, and was told that the tall man involved in the incident had died. Bailey observed that Belvedere's dental plate was broken. They left the house, took the license plates off Belvedere's car and put them on Bailey's car, and then left the Chicago area. Bailey threw the jack and handle out of the car on the highway.
The prosecution offered in their rebuttal case the prior Federal narcotics conviction of Bailey for the purpose of impeaching his credibility. The relevant facts of the conviction were that on August 20, 1971, Bailey pleaded guilty to the Federal offense of unlawfully distributing narcotics. On surrebuttal, Bailey admitted that he had pleaded guilty to that charge.
Bailey had previously made a motion to exclude evidence of his prior conviction on the grounds that it did not pertain to his credibility as a witness and would unduly prejudice him before the jury. Later during the trial, the motion was renewed and denied by the court.
After arguments and instructions, the jury found Belvedere and Bailey guilty of the murder of Mark Butterly, the attempt murder of John Sigle, and the aggravated battery of John Sigle. In addition, the jury found ...