APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The State maintains that Hector Escobar drove a car which carried a gunman who fired upon and killed Bryan Wagner. Escobar denies being the driver. The State's single occurrence witness recognized the driver as an old high school acquaintance whom he knew only as "New York. Escobar also denied being that acquaintance. He was tried before a jury, convicted of murder, and sentenced to 14 to 30 years in prison. He appeals.
Before trial, the court denied motions to quash arrest, to suppress statements, and to suppress identification.
The State's only occurrence witness, Joseph Bradtke, was 18 years old when he testified, 17 at the time of the murder. He had known Bryan Wagner "for many, many years," and was a good friend of Bryan. Bradtke had attended Lakeview High School, but had left school several years earlier.
The resolution of this appeal requires that Bradtke's testimony be set forth at some length. At 12:30 a.m. on August 19, 1976, Bradtke and six friends, including Bryan, were drinking beer on or near his front porch at 1623 West Byron Street in Chicago. Bryan and Ronnie Yukawa were riding bicycles in front of the porch near the curb.
A blue Chevrolet automobile turned onto Byron Street, almost hitting Bryan. The witness, who did not observe anyone else in the car, yelled out "slow down" to the driver. The driver responded by gesturing with his middle finger and yelling something in Spanish.
Meanwhile, Ronnie Yukawa, who had ridden to the corner on his bicycle, was heading back to his companions. The car pulled alongside and the driver asked Ronnie, "What did you say?" Ronnie replied, "I didn't say anything." The witness approached the car and told the driver that he, not Ronnie, had said, "Slow down." The driver began cursing and Ronnie punched him in the face. The witness said, "Why don't you just be cool and leave this neighborhood. Don't start no trouble here." The driver told the witness he was crazy and began cursing again, and Ronnie punched him again. The witness then told the driver, "Please, just leave before any more trouble starts," to which the driver replied, "Yes, I'm leaving, but I'll be back."
When later cross-examined about this portion of the evening, Bradtke admitted, after being shown a copy of his statement to the police, that he had not told the police he and the other boys had been drinking that night. Bradtke also admitted that during two interviews with the police on August 19, he had not told them that Ronnie hit the driver with a belt wrapped around his fist. He did not tell them of any physical acts against the driver. Bradtke explained that he had not forgotten, but had "decided to cover for my friends." Not until 3 days later, when Ronnie told Bradtke "not to cover for him" but to tell the police the whole truth, did Bradtke reveal these facts to the police.
Having run out of beer, Bradtke and his companions headed down Marshfield north toward Irving Park Road to buy some more. Ronnie and Bryan rode their bikes while the rest walked. Bradtke testified that during this walk, he observed a car coming about 35 m.p.h. southbound on Marshfield; the car, either a Vega or a Pinto, then slowed to about 3 m.p.h. Bradtke was "face to face" with the driver. At that point, the witness saw a man who had been hiding in the back seat raise his head. The driver appeared to have a conversation with his passenger, as the witness and his friends continued on their way, some of them throwing bricks after the car.
On cross-examination about this episode, Bradtke testified that, during his contacts with the police on August 19, he did not tell the police that there were bricks and stones thrown at the car, because he wanted to "cover for" somebody. Although he had told the police that it was about 20 minutes between the blue Chevy driving away and the second car appearing, on cross-examination he was only able to set the time interval as somewhere between 20 minutes and an hour and a half. He further testified that the four other boys (excluding Bryan and Yukawa) were standing around him, within 4 or 5 feet from one another as the car passed; he also said that it was dark.
As they approached Irving Park Road, Bryan, who was still riding his bike, said, "There is that car again." The car, now on Irving Park eastbound, slowed as it approached the corner of Marshfield. Bryan, who was ahead of those on foot, made a U-turn with his bike and came toward the witness and the others. As the passenger side of the car came alongside where the witness and his friends were standing, the car stopped, and a person in the rear right seat fired a gun. Bryan, who was about 5 feet from Bradtke, began pedalling away from the car. The witness heard six shots.
When Bradtke realized that he was being fired at, he took cover near a wall. Then, as the car began to pull away, he saw Bryan fall over the handlebars of his bike, get back up, and walk over to him. The witness, observing blood over Bryan's lips and nose, asked if he was all right. Bryan replied, "I don't know," and then, "Let's get 'em, Joe." As Bryan spoke those words, he vomited blood and fell into a nearby store doorway.
On cross-examination, Bradtke testified that, before the gunman began to fire, he was able to see the entire side of the car. It was a two-door, and the rear right side window was rolled down, with an inch of glass showing in the window frame. He saw only the first two letters on the license plate, and these letters were "NY." He told the police that the car was either a Vega or Pinto. The police report he signed described the car as a red Vega. Several of the other boys were standing around Bradtke when the shooting began.
Bradtke made an in-court identification of the defendant as the driver of the second car. He testified that he had first met the defendant 2 or 3 years before the shooting, when Bradtke was attending Lakeview High School. He had also seen him occasionally since then. At school he knew the defendant only by the name of "New York." On the night of the shooting, he described the driver to police as 19 to 20 years old with a little goatee and very curly hair which was frequently slicked down. He added that the driver was about 6 feet tall, and always wearing high-heeled shoes. Bradtke further testified that, on the night of the shooting, he would have been unable to determine ...