APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and attempt armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 8-4 and 18-2.) He was sentenced to a term of 30 to 75 years for the murder conviction and 5 to 15 years for the attempt armed robbery conviction, the sentences to run concurrently.
On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly precluded defendant from impeaching one of the State's witnesses with a prior felony conviction; (3) the prosecutor made improper statements in opening argument and failed to offer any proof of the statements; (4) it was reversible error to admit certain hearsay testimony; (5) he was improperly required to model clothes identified as those worn by the assailant; and (6) the court improperly allowed a photograph of defendant indicating a prior arrest to be viewed by the jury. We reverse and remand. The pertinent facts follow.
In his opening statement, the Assistant State's Attorney commented on what he felt the evidence introduced would show. After describing the offense, the victim and what he expected the testimony of several witnesses to be, he said, "I believe there will be additional evidence that will be brought to this courtroom because you will learn that certain clothing was recovered in the case, clothing belonging to that man, the Defendant." (Emphasis added.)
The following witnesses were called and testified:
Felma King. She was married to the victim, Willie D. King, and he owned a record store located at 5921 South Halsted (Dusty Records). On May 28, 1976, he drove her to the El at about 8:30 a.m. She next saw him at the Cook County Morgue at about 3 p.m. He was dead.
Martha Morrow. On May 28, 1976, she visited the Dusty Records shop between 9:30 and 10 a.m. She knew Mr. King and had stopped at the shop about 10 to 15 times previously. She was still in the store at about 11:20 a.m. when she noticed someone approach the store on a yellowish bike. He got off the bike and entered the store. He was a black man, between 18 and 24 years old, and wore a black hat with a bill down the front, a hoop-style gold, pierced earring, a short, dark waist jacket with a button on each side, and black pants. The witness was then shown several articles of clothing, including a short waist coat, a pair of pants, a pair of suspenders, a sweatshirt, and a black hat with a small bill. She identified the pants, jacket and cap as the same ones worn by the assailant. She then identified the defendant as the assailant.
Ms. Morrow stated that when the assailant entered the store only she and Mr. King were in the store. The assailant asked Mr. King for a Fats Domino record and when Mr. King looked for the record, the assailant put one arm around Ms. Morrow's neck and held a gun in the other hand. He told them not to move. At this point Ms. Morrow looked at the assailant's face. Mr. King turned around and the assailant shot him. The assailant said, "Money" and then left the store quickly. He rode his bike towards 60th and Halsted. Mr. King told Ms. Morrow to call a policeman. She left the record shop and told a man at a barber shop that Mr. King had been shot.
About four days later she was shown eight photographs by the police from which she picked one. At trial, eight photographs were shown to her which she identified as being the same photos she had been shown previously. She again picked the same photograph as the picture of the assailant, which was a photo of the defendant.
On cross-examination Ms. Morrow admitted that when the police came, she told them her name was Denise Brown. She also told the police that the assailant was between 5'4" to 5'6" tall and between 120 and 140 pounds. In court, she estimated the defendant's height to be 6'4" or 6'5". In addition, the first time she saw the photographs she did not pick any of them as that of the assailant. Later the same day the police returned, and Ms. Morrow then selected a photo of the defendant. She also admitted that she saw the assailant for a total of two to three seconds and that prior to trial she had told defense counsel that the only time she saw the killer was for a "split second" before he came in the store.
On redirect, Ms. Morrow stated that while she told the police her name was Denise Brown she gave them her correct phone number. She gave a false name because she did not want to get involved and because of fear.
It was stipulated that if Dr. Tilong An were called as a witness, he would testify that on May 29, 1976, he was a licensed pathologist employed by the Cook County Coroner's Office. On that date he performed an autopsy on Willie King, and it was his opinion that the cause of death was a bullet wound of the chest lacerating the lung and heart.
Before the next witness, Edna Scott, was sworn, the State made a motion in limine to prevent the defense from impeaching Edna Scott with her prior convictions for attempt armed robbery on March 7, 1966, and soliciting for prostitution in 1968. The motion was allowed. The defense objected to this action and sought a mistrial which was denied.
Edna Scott. On May 28, 1976, she was approaching the record shop when she heard a shot. She saw a young man in his twenties leave the record shop. He was about 5'9" tall and weighed about 155 to 160 pounds. He was wearing a black cap, black trousers and a black jacket with a belt around it. He got on a black bicycle with yellow decorations on the wheel and started down Halsted towards 59th Street, but then turned around and went to 60th Street and then east.
The next day she contacted the police. After viewing about 25 pictures, she picked one she believed to be the assailant, but requested to see him in person to make a more positive identification. About two days later, she viewed a six-man lineup. At trial, she was shown a photograph of the lineup she had viewed. She circled the head of the individual she had identified at the lineup. She then identified the defendant as that man, and as the man she saw leaving the record store. She was shown the articles of clothing which she identified as those worn by the assailant.
On cross-examination Ms. Scott denied having picked a photo of one Earl Jackson as the assailant. She further stated that at the lineup she viewed the same lineup twice. The first time, although she identified defendant, he wore "elevator" shoes and she asked that they be removed. Once removed, she was more positive of her identification.
Ray Luth. On May 28, 1976, he was an investigator for the Chicago Police Department, investigating the death of Willie King. On May 31, 1976, he and his partner, Officer Kehoe, went to Ms. Morrow's residence and showed her eight photos. She said nothing at that time. Officers Luth and Kehoe returned about an hour later and showed the same eight photos to Ms. Morrow. She went through the photos quickly and picked out defendant's photo. When Luth asked why she did not make an identification after the first viewing, she stated that she was frightened.
On June 1, 1976, Officers Luth and Kehoe spoke to the defendant's aunt, Margaret Hoffman. They asked where defendant could be found and whether any of his clothing was in her apartment. She showed the officers where the clothing was and they took it. They also asked her to contact them if she saw the defendant.
In court, Officer Luth identified the articles of clothing previously shown to Ms. Morrow and Ms. Scott as those he removed from Ms. Hoffman's apartment.
Kenneth Hamilton. He was at his girlfriend's house at about 11:30 a.m. on May 28, 1976. He saw the defendant riding a bike at about 61st and Union, which is one block east of Halsted. He borrowed the bike from defendant and was stopped by police about a minute later. He was placed in a police car and brought ...