APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
J. MALONEY, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 11, 1979.
This is an appeal by defendant John Outlaw (hereinafter "Outlaw") from a jury verdict finding him guilty of two counts of murder, one count of conspiracy to commit burglary, one count of burglary and one count of armed robbery. He was sentenced to concurrent terms of imprisonment of 150 to 300 years on each count of murder, 25 to 50 years for armed robbery and 10 to 20 years for burglary.
The appellate issues presented include whether (1) the testimony of an accomplice witness was sufficient to support the conviction of defendant for the murder of two men during an abortive burglary; (2) the trial court committed reversible error in denying defendant's motion to suppress certain statements made by him and should have made specific findings of fact and conclusions of law in ruling on the motion; (3) the State concealed evidence or misled defense counsel with respect to certain evidence; (4) cross-examination of alibi defense witnesses regarding their failure to notify police and the State of defendant's alibi, and comment upon their failure to do so, violated due process and had the effect of shifting to defendant the burden of proving his innocence; (5) prior consistent statements of a witness may be introduced to bolster and corroborate his trial testimony where the statement was made at a time within which the witness had a motive to fabricate; (6) the confrontation clause requires disclosure of the facts leading to a prior conviction of an accomplice witness to show that the bargain struck by that witness and the State was unduly favorable to the witness; (7) the introduction of certain gruesome photographs and other exhibits denied defendant due process where they related to no disputed issue of fact, are cumulative of other evidence, and tended to inflame the emotions of the jury; and (8) the court erred in admitting certain hearsay evidence over defendant's objections.
For the reasons hereinafter set forth, we affirm.
This case involves the murders of two men, Michael Rysiewicz (hereinafter "Rysiewicz") and Lawrence O'Connor (hereinafter "O'Connor"), who were bludgeoned to death on January 23, 1976, during an abortive burglary of fur trim and leather coats from the Chicago warehouse of the Spiegel Corporation (hereinafter "Spiegel"). Because defendant's conviction is founded substantially upon circumstantial evidence, we will set forth the facts in some detail.
The fur trim and leather coats were located in a locked vault on the fifth floor of a large Spiegel warehouse known as building "K" located at 1200 W. 35th Street, Chicago. Outlaw was one of Spiegel's employees who worked in the warehouse as a shipping clerk on the day of the murders from 7:20 a.m. to 4 p.m. O'Connor was on duty in building "K" as a Spiegel security guard whose work hours began at 4 p.m. and ended at midnight. He was assigned to guard the front door of building "K". Rysiewicz was a Spiegel maintenance man assigned to building "K" where he worked from 9 a.m. until 5:30 p.m. Another Spiegel security guard, working in the building "K" dock area was Alvin J. Holmes (hereinafter "Holmes"). Company rules required that all security guards be unarmed.
On the evening of the murders, Holmes testified, he began work at 4 p.m. and was assigned to the rear gate of building "K". The dock area guarded by Holmes, utilized in loading and unloading of trucks, had 18 docks, numbered 1 through 18, from east to west, and was surrounded by a fence with a single gate for ingress and egress by vehicles. At about 6 p.m., Holmes saw an unfamiliar orange and silver U-Haul truck approach the gate and partially enter the yard. Holmes told the driver, subsequently identified by him as Gregory Williams (hereinafter "Williams"), a cousin of Outlaw, that the area was restricted; no merchandise could be picked up after 4 p.m.; and Williams would have to leave. He gave Williams permission to drive into the yard so as to make a U-turn and saw Williams drive the truck to dock 10, turn it around and then pause. He began walking westward to see why Williams wasn't coming out of the yard and as he did so, noticed that dock door 7 was up almost all the way. He opened the door further and looked inside because the door should have been down. It was dark outside and the lighting conditions inside "K" building were poor since most of the lights had been turned out for the evening. He saw an individual inside the building some six feet away, about 6'1" tall and weighing from 170 to 175 pounds, and wearing dark clothing, including a coat that came between his waist and his knees. He could not discern facial features but was fairly certain that the individual was a black male. This man ran further into the building eastward and Holmes ran back northward to the guard office at dock 1 and telephoned his supervisor about what he had seen. The U-Haul truck was still within the yard; the driver, Williams, had been conversing with some postal employees near dock 10. Acting upon instructions, Holmes closed the gate so that the U-Haul truck could not exit. Holmes' supervisor arrived at the scene five or six minutes after the call, armed Holmes, and directed him to call Chicago police. The police arrived within a few minutes and took custody of Williams.
At 4 a.m. on January 24, 1976, Holmes attended a police lineup, in a police station known as "Area 3 Homicide," at 39th Street and California Avenue. He identified Williams as the U-Haul truck driver and Outlaw as a Spiegel employee whom he had known for about five years. Outlaw was of the same height and weight as the person he saw inside the doorway of dock 7.
Raymond Stafford testified that he was Spiegel's protection manager on the day of the murders, and worked the 4 p.m. to 12 midnight shift. While in his office at 1040 W. 35th Street, he received a phone call to come to "K" building. He went to the main entrance on 35th Street, tried to unlock the door, and then noticed that the door was unlocked; it should have been locked at that time, 6 p.m. The guard who should have been on duty, O'Connor, was not at his desk. Stafford made a cursory search for O'Connor on the first, second and third floors, calling to him in each instance, but received no answer. He then went to the dock area and saw the orange and silver U-Haul truck parked near the gate and instructed Holmes to call the police, giving him a weapon, and telling him to hold Williams until they came.
Frank Cusimano, a Chicago police officer, testified that he was assigned to the 9th District Station at 35th Street and Lowe Avenue on the day of the murders, working from 4 p.m. to midnight. He and his partner, Officer Dave Allen, were assigned to search building "K" at 6:30 p.m. The first floor in the northwest area of the building was poorly lighted and he and his partner were carrying flashlights. He saw a silhouette lying on the floor. With his flashlight he saw a white male lying on his back in a pool of blood, his eyes and mouth wide open, several scratches on his face and a large gaping hole in the left side of his head. Several pieces of brain matter were lying splashed within a 1 1/2-foot area from the top of his head. He later learned the name of that person to be Michael Rysiewicz. After calling for assistance, he remained at the scene until members of the K-9 police dog search unit arrived.
Theodore Zudyk, a Chicago police sergeant assigned to the K-9 unit, testified that on the day of the murders he was assigned to search the third floor of building "K" at about 6:45 to 7 p.m., together with Officer James Roser and a K-9 dog. He found a large trail of blood leading to and under a door at the east end of the cafeteria; on the other side of the door the trail of blood led to a "gurney" (a wooden pushcart designed to move merchandise, waste paper and refuse), under which was another large pool of blood. After he removed a fiber barrel in the gurney, he saw a middle-aged white male, wearing a guard's uniform, lying on his side at the bottom of the gurney, his face and neck covered with blood with large, gaping puncture wounds apparent. He found no pulse. He later learned that the name of that person was Lawrence O'Connor.
Meanwhile, Williams, the driver of the U-Haul truck taken into custody by police, was removed to the 9th District Station. Williams testified that police examined his wallet which was found to contain John Outlaw's driver's license. He first told the police that he was John Outlaw. He did not remember whether he had Outlaw's social security card in his wallet, or not. He was thereafter removed to Area 3 Homicide. There, at first, he refused to talk to the police about the burglary. Then, he lied to them, but not about the case; he told them nothing about the case. He was later asked about killings at the warehouse. When he told them that he knew nothing about the killings, he was not lying. At about 4 a.m., the police told him what they knew about the case. After talking with his mother, whom he had summoned, he told the police and Michael Crane, an assistant state's attorney, what he knew of the attempted burglary and gave them a 12-page typewritten statement.
Williams, a former Spiegel employee, testified at the trial that in mid-January, Outlaw suggested the burglary of coats at the Spiegel warehouse where Outlaw worked; they would need a truck, which Outlaw asked him to get. Williams agreed and the burglary was tentatively set for Thursday, January 22, 1976. Williams was unable to get the truck that day and Outlaw told him to meet the following morning at 11:45 in front of the bank near the Spiegel complex often used by Spiegel employees to cash their checks. Outlaw also told him that he would give him his driver's license because Williams' license had been revoked. He met Outlaw at the bank on 35th Street at 11:45 a.m. on Friday and Outlaw gave him $80 and his driver's license. Outlaw told him he was to be at Spiegel's at 6 p.m. with the truck, drive into the yard, pull up to dock 8 and Outlaw would have the coats ready. Williams would load the coats on the truck and leave. He again agreed to commit the burglary as he and Outlaw spoke together in front of the bank.
At about 4:30 or 4:45 p.m. that day, Williams rented a truck at an Arco gas station located at 56th Street and Cottage Grove Avenue. He gave the truck rental people $75 and showed them Outlaw's driver's license. He signed a receipt for the truck in the name of Johnny Outlaw. He left there at about 4:50 p.m., drove to a tavern at 52nd and Halsted where he had a drink, left the tavern and arrived at Spiegel's near 6 p.m. There was too much activity in the yard then; people were still working there and tractors were moving around. He circled the block, came back, parked the truck at about 6:05 p.m., and alighted from the truck. Outlaw joined him at the side of the truck, coming up behind him, and told him that everything was set and that he was to pull his truck into the yard and go to dock 10. Outlaw was then wearing a wool ski cap, a green army-type jacket and dark blue jeans. Thereafter Outlaw left and went back towards the Spiegel building. Williams got back in the truck and drove into the yard, to dock 10. A trailer was already there. He parked his truck as far in as it would go and alighted. A security guard approached him; he told the guard that he was to pick up a package for a friend. The guard told him that nothing could be picked up from the warehouse after 4:30 p.m. He got back into the truck and drove to a point 20 feet from the gate where the security guard stopped him and prevented him from leaving. He was held at gunpoint by the guard until the arrival of the Chicago police.
Chicago Police Officer Joseph Stack testified that he and his partner transported Williams to the 9th District Station after his arrest at Spiegel. At the station, Williams gave them a truck rental receipt and a driver's license, both bearing the name John Outlaw. Because the physical description on the driver's license did not coincide with Williams' appearance, Stack told Williams that he did not believe he was Outlaw, and asked him where Outlaw could be contacted. After considerable investigation, he learned that Outlaw lived at 8338 S. Sangamon Street. Going there, Stack met defendant who was wearing a white terry-cloth robe; his hair was very wet. Inside Outlaw's apartment, they questioned him concerning the U-Haul truck, which he denied renting; and his driver's license, which he stated was in his wallet that had been lost two days before, but was not reported to the police. Stack took Outlaw first to the 9th District, where they arrived at 10 p.m., and then to Area 3 Homicide, where he turned Outlaw over to Investigator Craig Cegielski. Between 1:30 and 2 a.m. the mother of John Outlaw, Sarah Lee Outlaw, signed a consent to search form in the presence of Officers Stack and Cegielski, allowing them to search her home.
Stack and other police officers then proceeded to Mrs. Outlaw's first floor apartment at 906 W. 53rd Street, in the company of John Outlaw's stepbrother, Anthony Romero, who had a key. They arrived at sometime between 2:30 and 3 a.m. In the kitchen, Stack observed two green plastic garbage bags and one brown paper bag. In the first green bag he observed a pair of brown leather gloves that appeared to be blood stained and a blood stained, torn army-type jacket. Removing nothing from the bag, he summoned evidence technicians and waited until they arrived between 5 and 5:30 a.m. The technicians removed the clothing from the bag, as previously described, and also a pair of blue jeans. They then examined the other green bag, which contained household garbage, and the brown paper bag, in which they found a blood-stained wallet, belonging to the murdered maintenance man, Rysiewicz.
Thomas Bachelder, an evidence technician assigned to the Chicago Crime Laboratory, testified that he and his partner, Officer Hajek, photographed the victims' bodies at the Spiegel warehouse and took blood samples, which were sent to the Crime Lab for microanalysis. They then went to the fire escape at the east side of the third floor. Bachelder observed a piece of twine hanging from the door and through a hole in the door where the door handle used to be. By pulling the twine from outside, the inside handle could be moved so as to open the door. The fire escape was extended downward. A long ladder was positioned near it. In the first floor dock area he saw that the door handle to dock door 10 was broken off; it was dusted for prints, but only smears and smudges were seen. No tools were found in the area. Between dock doors 5 and 6 were found some coats on racks. Bachelder testified that they later received a call to go to 906 W. 53rd Street. In the kitchen of the first floor apartment there, he saw two open green trash bags and one brown paper bag. In one green bag he found blue jeans, a soiled army field jacket and a pair of brown leather gloves. In the brown paper bag was a dark colored wallet which appeared to have blood stains; it contained numerous papers bearing the name Michael Rysiewicz. The wallet and clothing were submitted to the microanalysis section of the Crime Lab.
George A. Spreyne, a police microanalyst examined vials containing blood samples on cotton swabs, blood samples taken from the bodies of the two men at the morgue, and blood samples taken from the bloody clothing recovered from Outlaw's mother's kitchen. He determined that Rysiewicz had blood type A, also the type of blood taken from the first floor of the warehouse and the wallet. O'Connor had blood type B, as was a sample of blood taken from the third floor of the warehouse. Blood type A was found on the left leg of the pants, and types A and B were found on the right pants leg of a pair of blue jeans. Blood type A was found just above the cuffs of both jacket sleeves and both types A and B were found on the front panels of a green, torn army-type jacket. The jacket possessed a sleeve length of 25" and the circumference of its base was 46". A different jacket identified by Spiegel employees as belonging to Outlaw and taken from the employees' work clothes rack at Spiegel's, was found to have a sleeve length of 25" and a base circumference of 46". The inseam of the blue jeans found in the kitchen measured 35" and the waist measured 35". The inseam of the pants leg of Outlaw's work clothes, similarly identified at Spiegel's, measured 34" with a 35" waist.
Anthony Siaulys, a dock guard working at the center of building "K", testified that when he left work at 4:45 p.m. on January 23, 1976, the south fire escape was up and there was no ladder present. When the fire escape stairs are up, a ladder would help reach it. When he left work that day he exchanged greetings with O'Connor who had come on duty.
Vern Bridges, senior stock man for Spiegel, testified that a vault on the fifth floor of building "K" contained coats made with fur and leather; all were locked away when he left work on Friday, January 23, 1976. Several racks of coats were missing when he returned to work on the following Monday; some of them were found near the elevator and some in a gurney.
An employee of the District National Bank of Chicago testified that the payroll check of John Outlaw had been cashed at that bank at sometime between 9 a.m. and 1 or 1:30 p.m. on January 23, 1976.
Dr. Tae An, the coroner's pathologist who performed the autopsies on the bodies of O'Connor and Rysiewicz testified that both sustained extensive skull fractures and hemorrhages. The causes of death were severe damage brought about by repeated blows to their heads with a heavy, blunt object probably having a round striking surface.
Harold Kunz, an investigator assigned to Area 3 Homicide, testified that on January 23, 1976, he and his partner, Officer Small, responded to a call at the Spiegel warehouse, and then went to the 9th District Station and examined an Illinois operator's license and U-Haul rental receipt. He went by automobile to 56th and Cottage Grove and returned to 35th and Racine, checking the odometer on his vehicle. He found an excess of four blocks between the mileage on his vehicle and the difference between the mileage showing on the rental receipt and the mileage recorded on the U-Haul truck odometer parked at the rear of Spiegel's ...