APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendants John McTush and Lonzell Stone were jointly indicted for the murders and armed robberies of two men and for burglary. McTush was tried before a jury and was found guilty of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1), armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), and burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1). Stone was simultaneously tried without a jury in a bench trial and was found guilty "in manner and form as charged in the indictment." Following a hearing in aggravation and mitigation, McTush was sentenced to a term of from 60 to 90 years imprisonment and Stone was sentenced to a term of from 25 to 50 years imprisonment. Both defendants appeal.
We note at the outset that the evidence adduced at the trials differ as to each defendant. It is therefore necessary that we recite the testimony at some length. For purposes of clarity, we will first present the pertinent evidence adduced at the suppression hearing and jury trial of McTush.
Prior to trial, McTush moved to suppress evidence of a photographic identification of him and any resultant in-court identification. Stone did not join in this motion. At the suppression hearing the following pertinent evidence was adduced.
John Ridges, Chicago Police Officer
On February 21, 1976, he was assigned to investigate a double homicide which occurred the day before at the Kar-Life Battery Shop at 6959 South Ashland in Chicago. In the course of his investigation a lineup was held on March 18, 1976. The lineup consisted of five men and included McTush. Terrence Watson, an 11-year-old boy, and Ira Watson, his mother, separately viewed the lineup through a one-way mirror. Neither the boy nor his mother were able to identify any member of the lineup as a participant in the double homicide of February 20.
On May 24, 1976, he was present when Mrs. Watson and her son were interviewed by an assistant State's Attorney. While his mother waited in another room Terrence was shown a photograph of a lineup conducted on February 21, 1976. Terrence identified Stone from the photograph. Terrence was then shown photographs of six individuals from which he identified McTush and stated that he had previously seen McTush at the lineup on March 18. Mrs. Watson was then shown these photographs. She identified Stone as "having all the physical characteristics and similarities" of the man she saw at the battery shop on February 20.
On cross-examination, Ridges testified that Terrence told him he previously did not identify Stone or McTush because he was afraid of what might happen to him and his family. Ridges noticed at the March 18, 1976, lineup that Terrence Watson appeared very upset and nervous. He further testified that sometime after May 24, Terrence Watson told him he knew McTush from his neighborhood prior to February 20, 1976.
At the conclusion of Ridge's testimony, the trial court found the photographic identifications of May 24 to be impermissibly suggestive and required counsel for McTush to elicit evidence of independent origin. Counsel for McTush called Terrence Watson to the stand.
On the evening of February 20, 1976, he was playing on the street outside of the Kar-Life Battery Shop. When he looked through the window of the shop, he saw David Thomas, an employee of the shop, hit McTush in the mouth. He knew it was McTush because he was familiar with McTush from the neighborhood.
After hearing this testimony by Terrence Watson, the trial court ruled that the photographic identification of McTush made by Terrence Watson on May 24 was impermissibly suggestive and would be suppressed. The trial court further ruled that an independent origin for Terrence Watson's identification existed and therefore an in-court identification of McTush by Terrence Watson would be permitted.
The following pertinent evidence was adduced at the jury trial of McTush.
Joseph Meier, Chicago Police Officer
At approximately 5 p.m. on February 20, 1976, he and his partner Officer Santucci responded to a radio call and proceeded to the Kar-Life Battery Shop at 6959 South Ashland, on the northeast corner of Ashland Avenue and 70th Street. The shop has windows facing both streets. Upon walking through the door on the 70th Street side of the shop, he saw a body lying face down on the floor. It was the body of David Thomas. He then proceeded to the rear work area of the shop and found the body of Dennis Harrison. After the arrival of his superiors, he began to question people gathering outside the shop.
On cross-examination, he stated that one of the people he questioned was Terrence Watson. According to Watson, two men were involved in the killing. One of the offenders wore a green coat with white fur trim and the other wore a black coat. The man with the black coat was approximately 18-19 years old. Watson also said that one of the offenders had a fight with David Thomas, a Kar-Life employee, inside the shop. On redirect, he stated that Terrence Watson was very nervous when they talked.
He lives on the first floor of the apartment building on the south side of 70th Street across from the Kar-Life Battery Shop. While sitting in his living room around 5 p.m. on February 20, 1976, he saw a brown 1969 or 1970 Oldsmobile park on the south side of 70th Street. Two men got out of the car and walked toward the battery shop. The car's right front fender was damaged. He identified People's Exhibit 10 as a photograph of that car.
On cross-examination, he admitted that he failed to inform the investigating police officer of the damaged fender of the car.
He lives in the second floor apartment above John Tucker on 70th Street. On the evening of February 20, 1976, he was reading a newspaper at the seat near the front window of his apartment. Upon looking outside, he noticed a brown car with a black top parked on 70th Street. At that time, he observed the first three digits of the license plates on the car were either 846 or 648. The car had gained his attention because of its similarity to his wife's car.
On cross-examination, Thomas admitted that he did not know when the car was parked outside or who arrived in the car.
He was 11 years old on February 20, 1976. At approximately 5 p.m. on that day, he and a couple of friends were flying a kite on 70th Street just east of Ashland. He saw a brown Delta 88 Oldsmobile with a black top park on 70th Street. The car had a dent in the right front fender. The driver of the car was wearing a green leather coat with white fur trim and the passenger was wearing a gray leather coat. He identified in court Stone as the driver of the car and McTush as the passenger. He had seen both defendants before that day. When they got out of the car, McTush crossed the street and entered Kar-Life Battery Shop. Stone stood outside the battery shop. Watson went to the window of the shop and looked into the front area of the shop. He saw David Thomas, an employee of the shop, hit McTush in the mouth. McTush pointed a gun at Thomas and shot him several times at close range. At this point, Stone walked past Watson and went inside the shop. He saw Stone walk through the front part of the shop and enter the rear working area out of his view. He then heard three more gun shots. While Stone was in the work area, McTush was going through the pockets of David Thomas. Stone and McTush left the shop and were walking toward him to their car. As they were approaching, he fled east on 70th Street and then ran home. He identified People's Exhibit 10 as a photograph of the car he saw defendants driving that day.
On cross-examination, he denied telling the police on February 20 that he went to the window of the shop after he heard the first set of gun shots or that Stone was the man he saw inside the shop. He further denied telling the police that he ran as soon as Stone saw him. He told a police officer on February 20 that he had seen McTush before that day. He did not recall whether he told the assistant State's Attorney on May 24, 1976, that he knew McTush before February 20. He admitted he viewed a lineup on March 18, 1976, through a one-way mirror and did not identify anyone in that lineup as one of the offenders. On redirect, he stated he was a "little bit" afraid when he saw David Thomas killed. He also stated he had seen McTush about four times prior to February 20, 1976.
She is the mother of Terrence Watson and was in their apartment on the evening of February 20, 1976. Their apartment is on the second floor of the building adjacent and north of Kar-Life Battery Shop on Ashland Avenue. When Terry was outside playing, she heard several noises that sounded like gun shots. She looked out of the window, which faced south, and saw a man standing outside of the Ashland Avenue window of the battery shop. The man wearing a green coat with a white collar and a red cap. He entered the shop and went to the rear working area. She again heard noises which sounded like gun shots. After the shots, a man with a gray leather coat came out of the shop and then the man with the green coat exited. They walked south to the corner and turned east on 70th Street. Defendant McTush "strongly resembles" the man in the gray coat, but she could not be positive.
Terry returned home shortly after the second set of gun shots. She asked Terry if David Thomas had been target practicing inside the shop. He said no. She then asked him what were those noises. Terry replied, "Those dudes killed him". Terry looked "very frightened, stunned." Although Terry told her not to go down to the battery shop, she did. She discovered Thomas' body on the floor in the front of the shop and then called the police. Later that night, she noticed Terry was still frightened and would not sleep apart from his parents.
The next day February 21, 1976, she and Terry were brought to the police station to observe a lineup. Terry was nervous and frightened and did not want to go to the police station. On March 18, 1976, they were brought to the police station to observe another lineup. Terry was again reluctant and appeared frightened. After viewing the lineup, she said one of the men "strongly resembled" the man in the gray coat. That man was McTush.
On cross-examination, she denied telling the police one of the men wore a black leather coat. She admitted she never saw a complete frontal view of the man in the gray coat. She believes Terry told the police prior to May 24, 1976, that he had seen McTush in the neighborhood before February 20, 1976.
She knew defendant McTush for approximately a year and a half prior to February 20, 1976. She and McTush jointly owned a brown 1969 Delta 88 Oldsmobile. The car had a black top and the right front fender was damaged. She identified People's Exhibit 10 as a photograph of their Delta 88 Oldsmobile as it appeared on February 20, 1976. On that day, she saw the defendant in the Delta 88 at 9:30 a.m. and at noon. At approximately 6:05 p.m. that evening, McTush drove to her home in the Delta 88. He was wearing a gray leather coat. When she left her home about 25 minutes later she took the Delta 88 and left him another car which they also jointly owned.
On cross-examination, she stated the reason why she took the Delta 88 was because the heater did not work on the other car. She said an assistant State's Attorney suggested that she testify that McTush told her to exchange cars the evening of February 20. She said this was not the truth. On redirect examination, she admitted signing a statement on February 22, 1976, in which she stated that McTush told her to exchange cars. This statement was given before she ever talked to an assistant State's Attorney.
He lived with his wife at 7126 South Honore. McTush and Stone lived with them on a part-time basis. Between 5 p.m. and 5:30 p.m. on February 20, 1976, Stone and McTush came home. They stayed in the house approximately 25 minutes to change clothes and then left separately. He asked McTush where he had been all day. McTush said he had been to visit his brother in Joliet, Illinois, and had left Joliet for Chicago at 3:15 p.m.
On cross-examination, he admitted that McTush came into the house about five minutes after Stone. He didn't notice the color of the coat McTush was wearing. He didn't see McTush change clothes or leave the house because he had fallen asleep.
As general manager of the Kar-Life Battery Company, one of his duties was to pick up the receipts from the Kar-Life Battery Shop at 6959 South Ashland. Every two days he would go to the battery shop and pick up the receipts from David Thomas. Generally, Thomas carried the receipts in his pocket. On the morning of February 20, 1976, he called Thomas and asked him, "if he had a lot of money." Thomas said no. After being notified of the homicides, he went to the battery shop at approximately 6:45 p.m. He searched for the receipts, but found no money.
Mary Ann Moran, Microanalyst, Chicago Police Department
Upon examination of powder burns on the clothes worn by David Thomas on the day he was killed, she was able to determine he was shot at close range.
Thomas Morley, Chicago Police Officer
On April 15, 1975, he spoke with a man who identified himself as John McTush. McTush said he lived at 7006 South ...