APPEAL from the Circuit Court of Cook County; the Hon. JOHN A.
NORDBERG, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Anthony Singletary, also known as Bernard Berry (defendant), was found guilty of the murder of Edward Zwolinski and aggravated battery of Geraldine Ciborowski. He was sentenced to concurrent terms of 30 to 90 years and 3 to 9 years for these offenses respectively. Defendant appeals.
Defendant's brief in this court raises 13 issues. This opinion will state the evidence, consider the issue of reasonable doubt and then consider each of the remaining issues in order.
Shortly after midnight of July 4, 1975, seven young men and women were together at a tavern on the west side of Chicago. They all left upon four motorcycles being driven by four young men. The three young ladies rode as passengers. They proceeded west on Blackhawk Street to Ashland Avenue. Geraldine Ciborowski was riding behind the deceased, Edward Zwolinski. Karen Quinn rode behind George Bawall and Diane Jenko rode behind Jerrold Battista. Armando Delgado rode alone. At Ashland Avenue the group made a left turn and proceeded south. As they went by the intersection of Ashland Avenue with Milwaukee Avenue, a diagonal street, they heard a group of noisy people congregated on the northeast corner. Geraldine Ciborowski observed a woman from the group chase a man and shout a racial epithet. After a stop for the traffic light at the intersection, the cyclists all continued south.
The next east and west intersecting street was Division Street. Armando Delgado and Jerrold Battista with Diane Jenko continued on south of Division Street. They then noticed that the remaining two cyclists were not behind them. They saw that their friends had made a right turn to proceed west on Division Street and were waiting for them at the corner. Accordingly Battista and Delgado drove back in a northerly direction on Ashland Avenue and turned west on Division Street to join their friends.
There is testimony from George Bawall, who, accompanied by the deceased, was waiting for the other two motorcyclists to return, that a man identified as the defendant walked up to the group and asked who had addressed a racial slur to him. Bawall responded, "Nobody called you anything." By this time the two other motorcyclists had rejoined the group. Armando Delgado testified that he heard the question by the defendant to the deceased and that the deceased responded, "No one called you nothing." The defendant then drew a pistol and waved it at the group. Defendant walked over to Armando Delgado and pointed the gun at his head. Delgado testified that he told defendant, "Please, man, don't shoot. We are leaving." The defendant, with the use of a different racial slur, ordered the group to leave. None of the cyclists had left their machines. There is evidence that two women walked up behind the defendant and spoke to Diane Jenko.
All of the motorcycles then proceeded in a westerly direction on Division Street. Some members of the group heard four shots as they headed west. Geraldine Ciborowski testified she told the deceased she thought the defendant had fired some shots because a bullet went through her "pants." The deceased executed a U-turn with his motorcycle and then turned again to continue in a westerly direction. Two shots were fired. The deceased was hit and Geraldine Ciborowski attempted unsuccessfully to steer the motorcycle. It was struck by an oncoming vehicle. The deceased and Geraldine Ciborowski were thrown into the air.
Armando Delgado testified that when he heard the four shots he saw the defendant standing in the street with a gun in his hand. He saw the motorcycle of the deceased execute a U-turn then complete the circle and continue west. As the deceased was going west, Delgado heard two more shots and saw defendant pointing his gun at the group. He said that the defendant "was squatting aiming at us." Jerrold Battista testified he heard the four shots. He saw the defendant squat down and fire two more shots.
There is expert testimony that the fatal bullet entered the head of the deceased from the rear, slightly to the left of center. Geraldine Ciborowski spent more than one month in the hospital as a result of her injuries.
After the incident, one of the cyclists pointed out to a police officer the two women who had spoken to Diane Jenko. These ladies, Sylvia Moore and Debra Cooper, later accompanied police to their home located on Ashland Avenue slightly south of Division Street. Police found the defendant in the premises. Defendant was first seen crawling along the floor and then crawling out of a window in the basement door. In due course defendant was taken into custody in the basement. That part of the premises was unlighted and the defendant was standing behind a pillar. The basement had a dirt floor and there were rags and junk in the area. There was no bed, stove or toilet. The police officers found another woman, Mabel Crowlin, and her daughter, Brenda Smith, in the premises. Mabel Crowlin took the officers to the second floor front apartment. The police entered a bathroom where a gun was found in a purse in the shower stall. The name of Mabel Crowlin appeared on papers in the purse. At the police station, after defendant had been properly warned, he told the police that he had not been on the corner of Division Street and Ashland Avenue that night but that he had been with Mabel Crowlin. He stated that he had not shot anyone.
A ballistics expert examined the gun recovered by the police and the fragments of the fatal bullet. In the opinion of the expert, it was impossible to state conclusively that the fatal bullet had been fired from the gun. The expert's opinion was that the bullet could have been fired from that gun but also could have been fired from similar guns made by four other manufacturers.
Defendant testified that he lived on the premises where he was arrested and that he had another apartment on the north side of Chicago. He paid rent in both places. He accompanied Mabel Crowlin, Sylvia Moore and Debra Cooper to two bars on the night in question. He saw about 15 people in a group on the sidewalk at the intersection of Ashland Avenue and Milwaukee Avenue. Some of these people were throwing firecrackers. Defendant and Debra Cooper went for a short walk alone and then they walked by the corner of Ashland and Division. As some motorcycles passed, defendant heard someone address a racial slur to him. He asked who had done so. The deceased stopped his motorcycle at the curb and denied that anyone had called defendant anything. Defendant told the deceased to leave but the deceased left his motorcycle and walked over to the defendant with his hand in his pocket. As the deceased approached to a distance of about 4 or 5 feet, the defendant drew his own gun from a holster. This was not the gun found by the police in the purse, which defendant testified he did not own.
Defendant then heard Geraldine Ciborowski request her group to leave. The four motorcycles all left in a westerly direction. Defendant and Debra Cooper started to walk across Division Street. Defendant saw two motorcycles about 50 to 100 feet away from him coming 60 to 70 miles an hour "directly at me." He recognized Zwolinski, the deceased, and Delgado on these bikes. He waited for 3 seconds. The machines increased their speed. They could have been going 80 or 90 or even 100 miles per hour. Defendant squatted down and pointed his gun at them. He waited another 5 seconds. He then fired two shots. At that time he had his head down and his eyes closed and did not aim the gun at anyone. "I was pointing the gun in that direction." "At that time I did not know if I had shot anybody." He fired the gun because he was afraid of being hurt. The motorcycles then made a U-turn and went back west.
After firing the shots, defendant ran home. Part of the way he went down an alley and approached the apartment from a gangway. He threw his own gun away in the middle of Marshfield Avenue, which is the next street west of Ashland. He did not know the caliber or the manufacturer of that weapon. Defendant was living in the basement of the Ashland Avenue premises. Debra Cooper lived there with him. He had a foldaway cot in the basement in the room which had formerly been a coal bin.
1 We will first consider the reasonable doubt issue and then, in order, the remaining points raised by defendant. The issue of reasonable doubt is readily decided contrary to the defendant's contention. Defendant admitted in his own testimony that he had fired two shots in the direction of two motorcycles speeding toward him. His theory was that he did not aim at the cyclists but shot with his eyes closed. The fact beyond dispute, as shown by the physical evidence here, is that the shots were fired while the cyclists were riding away from defendant. The testimony of the pathologist is that the entry wound from the fatal bullet was at the rear of the head of the deceased.
Defendant testified that he fired only two shots. On the contrary, three witnesses for the State heard shots as they were traveling away from the defendant. Defendant's testimony contains its own refutation in other particulars. His testimony is that he saw the motorcycles from 50 to 100 feet away from him and that some 8 seconds went by before he fired the shots. During this time interval the cyclists increased their speed from 60 to 70 to perhaps from 80 to 100 miles per hour. If the machines actually traveled at 80 miles per hour, this was equivalent to a speed of about 117 feet per second. Thus, they would have been long past the point where defendant was standing after an 8-second interval. Also, according to defendant's version of the facts, all of the cyclists left in accordance with the request of Geraldine Ciborowski and after defendant had pulled his gun. Since there was no evidence that any of the group was armed, it would seem incredible for two of their number to ride continuously and directly toward defendant whom they all knew had drawn a gun.
In addition, defendant apparently ran away after the occurrence and threw his gun away in the street. If he had acted in self-defense, this conduct would not have been reasonable. After defendant's flight he proceeded to secrete himself in the basement and to attempt an escape by the rear door. The gun identified as the one with which defendant was armed was found in a different portion of the same premises. Also, defendant's initial statement to the police directly contradicted his testimony at trial. Serious doubts may well be raised regarding the veracity of defendant's testimony that he lived simultaneously in two apartments and paid rent for both. An issue exists as to the habitability of the basement room in which defendant was apprehended from a position behind a pillar. In short, the testimony of guilt in the instant case is beyond reasonable doubt to the point of being overwhelming.
We cannot set aside the verdict since the evidence presented at trial is definitely not "so improbable as to raise a reasonable doubt of guilt." (People v. Yarbrough (1977), 67 Ill.2d 222, 227, 367 N.E.2d 666.) There are areas of conflict in the testimony but the resolution of the resulting questions of fact and problems of the credibility of the witnesses are within the province of the jury. 67 Ill.2d 222, 227.
Mary Paul was tentatively chosen as one of the jurors in a second panel of four. Next morning, before the panel was sworn, the assistant State's Attorney reported to the trial court that he had received a telephone call from a person purporting to be an attorney and the husband of Mary Paul. Mrs. Paul had stated on voir dire that her husband is an attorney and also that she had previously been the victim of a battery and burglary. The State's Attorney told the court that the husband stated that Mrs. Paul had told him that she wished to be a member of the jury and that she had been excluded from previous jury service because of her husband's profession.
2 The State's Attorney then requested that the juror be excused for cause. Defendant's counsel objected. After hearing argument the trial court excused the juror for cause. The trial court was of the opinion the incident demonstrated that the prospective juror reasonably might not be able to abstain from discussing the case with her husband. Counsel for defendant stated that there should be a hearing so that the juror's husband could be brought in to testify. The trial court denied this request.
This entire incident amounts to a determination by the trial court as to whether or not the prospective juror would be able to give the parties a fair and impartial trial. With apparent good reason the trial court excused the juror. This ruling rested "in the sound discretion of the trial judge. His determination should not be set aside unless it is against the manifest weight of the evidence." (People v. Cole (1973), 54 Ill.2d 401, 414, 298 N.E.2d 705.) The result here reached was, in our opinion, well within reasonable discretion. Also, the entire incident did not present sufficient cause to expend the time and effort required in taking testimony of the prospective juror's husband and perhaps other persons. The result reached by the trial court was a practical solution of the problem.
3 These questions which arise in connection with the selection and management of the jury raise myriads of problems with different aspects. It seems to us that the answers necessarily depend upon a determination of whether the right of the defendant to a fair trial was prejudiced by the ruling of the court. We find this matter of existence of prejudice used as a measuring stick by courts> of review in varying situations. It appears in a case in which a juror made unintentional misrepresentations during voir dire (People v. Rohwedder (1969), 106 Ill. App.2d 1, 245 N.E.2d 282). People v. Harris (1979), 74 Ill.2d 472, 386 N.E.2d 60, refers to incidents involving an accusation by defendant of alleged misconduct by a juror during recess and subsequent conduct by the trial court which defendant sought to advance as a ground of prejudice. People v. Rosenborgh (1974), 21 Ill. App.3d 676, 687, 315 N.E.2d 545, citing Rohwedder, deals with failure of a juror to disclose facts on voir dire.
Applying this test of prejudice, we find no evidence thereof in this record. Mere conjecture cannot be considered as a basis for a claim of prejudice. (People v. Witherspoon (1973), 55 Ill.2d 18, 21, 302 N.E.2d 3.) Furthermore, it may well be urged that defendant improved his position with ...