APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 14, 1980.
Following a jury trial in the circuit court of Cook County, defendants Michael Evans *fn1 and Paul Terry, jointly tried, were found guilty of murder, aggravated kidnapping, rape, deviate sexual assault, and indecent liberties with a child. The trial court entered judgment on all of the verdicts except indecent liberties with a child which was held to have merged. Defendants were sentenced to 200 to 400 years for murder, 75 to 150 years for aggravated kidnapping, 75 to 150 years for rape, and 50 to 100 years for deviate sexual assault, each sentence to run concurrently.
Defendants appeal contending that (1) the evidence was insufficient to prove them guilty beyond a reasonable doubt, (2) prejudicial comments made by the prosecution during closing argument denied them a fair trial, and (3) the trial court erred in directing the jurors to continue to deliberate after the jurors had indicated on two occasions that they were deadlocked.
The record indicates that the victim, 9-year-old Lisa Cabassa, and her 11-year-old brother, Ricky, left their family residence at 8628 South Saginaw in Chicago on the evening of January 14, 1976, to walk home a friend who lived about five blocks away. The children walked north to the corner of Saginaw and 86th Street and then proceeded east on 86th Street. On the way, Lisa complained of a headache and decided to return home. Ricky continued walking his friend home, turning around once to see Lisa walking west on 86th Street about a block east of Saginaw. Mrs. Cabassa testified that the children left the house at 7:45 p.m. and Ricky returned home at 8:25 p.m., at which time she inquired as to Lisa's whereabouts. After Ricky explained that Lisa returned home ahead of him, the Cabassa family engaged in an unsuccessful search for her. At about 9 p.m., they contacted the police. At 2:45 a.m. the next morning, Lisa's body was discovered in an alley a number of blocks away.
The doctor who performed the autopsy on the victim's body testified that there were abrasions on her neck, her vagina and anus were torn and bleeding, and spermatozoa was present in the rectal area. He stated that the injuries in the vaginal area were compatible with rape, and that the apparent cause of death was asphyxiation due to mechanical strangulation. It was his opinion that the injuries were inflicted by more than one person.
The evidence which linked defendants to the crime consisted of the testimony of a single witness, Judith Januszewski. Mrs. Januszewski, who was employed as a secretary at a real estate office located on East 87th Street, testified that on the night of January 14, 1976, she left work at 8 p.m. and walked home. She lived at 8547 South Saginaw Street, a block north of the Cabassa family. She proceeded east to the intersection of 87th Street and Saginaw, then north on Saginaw along the west side of the street. She testified that when she was about two or three houses from the intersection of Saginaw and 86th Street, she noticed four persons near the southwest corner. When she reached that corner, she observed two male youths struggling with a young girl. They were holding the girl's arms behind her back with the girl bent forward and she heard the girl say "No." She said the group was about 12 to 15 feet west of her and facing east toward her. The fourth person she observed was standing just off the southwest corner within touching distance of her and was facing west toward the others.
Mrs. Januszewski recognized the young girl to be Lisa Cabassa whom she had known for about one year. She recognized the male standing to the left of Lisa to be defendant Evans whom she had known for 1 1/2 years, had spoken to on more than 10 prior occasions, had seen at least 50 times, and who lived seven houses south of her. She identified Evans at trial. As to the male standing to the right of Lisa, Mrs. Januszewski testified that she had never seen him before. She described him as wearing a dark, waist-length jacket, dark pants, high-heeled shoes, and had distinctive eyebrows. Mrs. Januszewski identified defendant Terry from a lineup in November 1976 as this person. She also identified him at trial but noted that his appearance differed in that he was wearing glasses, his hair was longer, and his eyebrows were no longer distinctive. She recognized the fourth person standing near the corner as Earl Jones, whom she had seen on at least 20 prior occasions. She identified a James Davis in court as the person she knew as Earl Jones. *fn2
Mrs. Januszewski testified that she stood at the corner and observed what transpired for about 10 to 15 seconds. She looked at the defendants for some 5 to 10 seconds. She stated that the lighting conditions were good with illumination provided by a streetlight located on the southeast corner of the intersection directly behind the spot where she was standing. She continued home and upon her arrival she looked out her window but did not see anyone on the corner. She did not contact the police or the Cabassa family that night. She stated that the next day when she learned that Lisa Cabassa had been murdered, she did not contact the police because she was scared. She did, however, talk to her mother about the incident on January 15 or 16.
Mrs. Januszewski testified that on the morning of January 16, she received a phone call at work from defendant Evans who told her if she told the police anything, the same thing that happened to Lisa would happen to her. She said she recognized defendant Evan's voice since she had heard it on numerous prior occasions, and it was distinctive in that he spoke with an occasional slur, mispronounced words, and sometimes stuttered.
On January 19, after talking to her mother, she contacted Frank Martin, who had advertised a $5,000 reward in the newspaper to persons with information regarding the murder of Lisa Cabassa and promised anonymity. She said at the time she spoke to Martin she was unaware of the reward money. Although her mother told her names would be withheld, Martin told her he would have to contact the police with her information. Later that day, Mrs. Januszewski spoke with police officers about the incident.
At about 7 p.m. that evening, police detectives took Mrs. Januszewski to the police artist. She described to the artist the two men she observed struggling with the victim as 19- to 25-year-old black males, with medium complexions, and that one of the males was wearing a hat. She did not mention to the artist that she also had observed a third male at the scene or that she knew one of the two males she described. Thereafter, at about 10:30 p.m., the detectives took her to the police station, against her wishes, in order to take her statement. Her statement indicated that she left work on the night in question at 6:37 p.m., gave a description of the two men she saw struggling with the victim, describing defendant Terry as having very black eyebrows, "like they were painted" and a light mustache. On cross-examination, when questioned about the time discrepancy between her statement and her testimony at trial as to when she left work, she denied telling the officers that she left work at 6:37 p.m. She said she told them she was unsure of the time and would verify it with her time sheets. It was later brought out at trial that her time sheets indicated she left the office that night at 8 p.m. She did not tell the detectives when they took her statement that she knew the victim or the identity of one of the males she had described. She also did not mention a third male being present. She said she intentionally withheld information from the police because she was afraid of becoming too involved. Mrs. Januszewski testified that she read her statement at the police station but did not sign it because she was afraid. She stated that at the time she gave the statement she was nervous, scared, and very upset, she was sitting in a cold and drafty room, and she wanted to leave or call her husband, but was not allowed to do so. She said that she left the police station at about 1:30 a.m., after her husband called and demanded that she be brought home.
Mrs. Januszewski testified that on January 22, 23, and 26, defendant Evans came to the real estate office sometime before noon, while she was there alone, and threatened the life of her sister, and on one occasion made a lewd comment. She said that defendant Evans again came to the office on February 13 and inquired as to why the police had been there. She said that after each visit by Evans at her office, she made the notation "ME" on her desk calendar. This calendar was admitted into evidence.
On the night of February 23, she heard glass being broken on the side of her house. The next night the man she knew as Earl Jones came to her house, called her a lewd name, and handed her an envelope which contained a note and two bullets. She contacted the police and gave these items to them. The following night she heard a pounding on the side of the house, looked outside, and saw defendant Evans leaving. She called the police and for the first time disclosed the name of defendant Evans to them as one of the men she had seen struggling with the victim. She said she finally did so because she feared that her family was in extreme danger. The next day, she was accompanied to her office by two police officers who hid in a back room. As defendant Evans walked by the office, at about 11 a.m., Mrs. Januszewski pointed him out and the officers arrested him. She stated that on March 25, someone called her, a voice she did not recognize, and told her to meet Earl at 9 p.m. at a certain location. She drove there with a police officer in the back seat of the car but did not see anyone.
During the investigation, Mrs. Januszewski was shown numerous books of photographs by the police, among which included a 1974 Bogan High School yearbook, from which Mrs. Januszewski picked out a picture of Jeffrey Coleman as resembling the person she knew as Earl Jones. However, she did not identify Coleman as Earl Jones after viewing Coleman in a police lineup. Mrs. Januszewski did not identify defendant Terry's picture which was in the same yearbook.
The defendants did not testify in their own behalf nor present any alibi evidence. They did call several police officers as witnesses. Officer Monegiin testified that a report he made indicated that he spoke to Mrs. Cabassa on January 14, 1976, concerning the disappearance of her daughter, and she told him Lisa was last seen at 6:30 p.m. On cross-examination he stated that in his discussion with Mrs. Cabassa there was some fluctuation as to this time, and that 6:30 reflected the initial time they discussed. Investigator Leracz testified that he spoke to the Cabassa family at 4:30 or 5 a.m. the morning of January 15, 1976, shortly after Lisa's body had been discovered, and that Ricky, who was upset at the time, said he and Lisa left the house the previous evening at 6 p.m. Investigator Tuider testified that he distributed a police bulletin in the neighborhood where the incident occurred which indicated that Lisa was last seen at 6:45 p.m. on January 14, 1976. Officer Centracchio testified that he spoke with Mrs. Cabassa on the phone sometime between 4 and 12 p.m. on January 14, 1976, about her daughter's disappearance, and his report indicated that Mrs. Cabassa last saw Lisa at 6:30 p.m. that evening.
Officer Katalinic testified that he talked to Mrs. Januszewski at the police station on January 19, 1976, and she told him that she had observed two black males pulling a young girl west toward an alley on 86th Street and Saginaw; that she did not get a good look at the girl's face and was not sure whether this was an abduction or an older brother bringing his sister home; that she had seen one of the males on a couple of prior occasions but had never seen the other male before; that another black male whose name she knew was present, but she was not sure whether he was with the others; that she had known this other male for about a year and became acquainted with him when he would stop by the real estate office and speak to her and the other employees. Katalinic said he spoke with Mrs. Januszewski again on February 25, and she told him she heard a banging noise on the side of her house. He did not recall her telling him that she saw defendant Evans outside. On March 25, after Mrs. Januszewski received the phone call telling her to meet Earl at a certain location, Katalinic said he tried to arrange to have a policewoman substitute for Mrs. Januszewski, but that Mrs. Januszewski insisted on going and that he accompanied her.
Vera Larkin, Annie Thompson, and Reverend Thomas Hawkins, all friends of the Terry family for many years, testified to defendant Terry's good reputation in the community.
We first consider defendants' contention that the evidence was insufficient to prove them guilty beyond a reasonable doubt.
1 We initially note that a reviewing court will not disturb the jury's determination of guilt unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill.2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.) Where the identification of the accused is at issue, the testimony of one witness is sufficient to convict provided the witness is credible and viewed the accused under circumstances as would permit a positive identification to be made. (People v. Manion; People v. Stringer (1972), 52 Ill.2d 564, 569, 289 N.E.2d 631.) In determining whether an accused has been positively identified, this court has considered whether the identifying witness had sufficient time to observe the offender at a reasonable distance and under adequate lighting. (People v. McGee (1976), 38 Ill. App.3d 889, 893, 350 N.E.2d 13.) Where the identification of the accused is doubtful and vague, and does not produce an abiding conviction of guilt, a conviction cannot be sustained. People v. Clarke (1971), 50 Ill.2d 104, 110, 277 N.E.2d 866.
Mrs. Januszewski testified that she was about two or three houses from the intersection of 86th Street and Saginaw when she first noticed a group of people standing near the corner. She continued walking while watching the group. When she reached the southwest corner, she observed defendants struggling with a young girl she recognized to be Lisa Cabassa. She said at this point defendants were 12 to 15 feet west of her and facing east toward her so she could see their faces. Defendants point out that in her statement to the police she said defendants were 75 to 100 feet west of her. The record indicates that she gave this answer in response to the question, "where were these subjects when you saw them?" It is possible that the 75 to 100 feet referred to the distance at which she initially saw the group. She also testified that as she approached, the group was moving from the west to the east and getting closer to the corner. She said she observed the struggle for 10 to 15 seconds and looked at the defendants for 5 to 10 seconds. She also stated that illumination was provided by a streetlight on the southeast corner of the intersection. Identifications made from ...