APPEAL from the Circuit Court of Cook County; the Hon. VINCENT
BENTIVENGA, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1980.
After a jury trial, Kevin Tolbert (defendant) was convicted of murder and armed robbery. He was sentenced to 16 to 20 and 6 to 20 years respectively. He appeals.
In this court defendant urges the State failed to sustain its burden of proving that confessions by defendant were voluntarily made; the State failed to prove defendant guilty beyond reasonable doubt by evidence other than defendant's own confessions; the trial judge erred in communicating with the jury outside of the presence of defendant and his counsel and abused his discretion by denying the jury's request to hear testimony of a police officer and two defense witnesses although the trial judge did read defendant's statements and in this manner gave said statements undue prominence; and the trial court erroneously considered defendant's prior arrests in imposing sentence.
James Henderson died on a Chicago street during the early morning of July 27, 1975. The cause of death was a bullet wound of the head. At trial, Carrie Henderson, wife of the victim, testified that she accompanied him to a bar on Fifth Avenue shortly west of Pulaski Road in Chicago. The couple remained in the lounge until about 10:30 p.m. The deceased and others indulged in drinking and gambling. About 1:30 a.m. the deceased walked home to use the washroom. Mrs. Henderson remained in the lounge until it closed at 3 a.m. She then drove home with two friends.
She testified she saw a crowd of people and some police officers in the 600 block of South Karlov Avenue. She saw her husband bleeding on the sidewalk. Later at home she found one money clip belonging to the deceased. She thought there should be a second such clip. In the belongings of her late husband she found less than $100. The police gave her an additional $25. She saw a jacket under her husband's head on the sidewalk. It was not his jacket. She had never seen it before.
Police Officer John Cruz went to the Karlov location after a radio call at about 3 a.m. Several lights on the block were not working. Lighting conditions were "rather poor". He saw a "plaid jacket" under the head of the deceased. There was a pool of blood at the head of the deceased. The officer remained there about half an hour. He did not recall seeing Mrs. Henderson at the scene.
Officer Thomas Clinton testified he recovered a man's "multicolored jacket" from under the back and head of the deceased. He stated the jacket was "not plaid."
The autopsy testimony showed an entrance bullet wound in the outer aspect of the left eye. The resulting wound to the brain was the cause of death. The bullet was retrieved.
Officer Percy Hollins testified that on September 20, 1975, he and Officer Robert Wasmund were assigned to speak to a person in custody in the lockup who had some information regarding a homicide. At the lockup they met the defendant. Defendant told the officers "he wanted to explain about a killing that happened on Karlov Avenue earlier".
In an interview room defendant was given his Miranda rights. He told the officers he understood these rights. Defendant told the officers he was 16 years old. After a check of police records, Hollins arrived at the opinion that defendant was then 17 years of age. To eliminate any possible doubts the officers then contacted Youth Officer Patricia Partika. She returned with Hollins to the interview room and remained there.
Defendant told the officers he had been to a party on Arthington Avenue, about 4000 west. About 2:30 a.m., defendant, accompanied by Kevin Davidson, Clay Horton and a person named Callahan left the party. At Davidson's home they talked about going out for a "stickup". Defendant put on a ladies' coat, Davidson put on a short plaid jacket and Horton put on a jacket. Horton and defendant walked on the east side of Karlov Avenue in the 600 block and Davidson on the west side. A man approached on the east side. Davidson ran up with a gun and said it was a stickup. The man attempted to seize the weapon and Davidson shot him in the face. All three ran back to Davidson's house. Defendant discarded the ladies' coat in a garbage can. Defendant removed the clip and all bullets from the pistol, a .45 automatic. Davidson hid the gun in his basement. Defendant went to his father's house where he had more bullets. All of the bullets were thrown into a sewer. Defendant walked back to the scene and saw the victim lying on the ground. He stayed there about 10 minutes and then went home by taxicab.
Then, also in the presence of Youth Officer Partika, at about 3:20 a.m., the defendant gave a similar statement which was typewritten by Officer Hollins. Hollins asked defendant to correct any errors in the statement. Defendant checked the statement. He corrected his age from 17 to 16, initialed each page and signed the statement, dated September 20, 1975.
This first completed written confession was substantially the same as the first oral confession. The written confession was read to the jury. The oral confession was that defendant and his friends left the party about 2:30 a.m. In the written confession they left at 12:30 a.m. and the shooting occurred at 2:30 a.m. The written confession recited that defendant had taken the automatic pistol in a previous burglary and sold it later. The written confession added that the street lights were off at the time; nothing was taken from the victim and defendant did not know how Davidson's jacket got under the head of the victim.
Ernest Blomquist, then assistant State's Attorney, testified that on the morning of September 22, 1975, about 10 or 10:30 a.m., he spoke to an officer named Bertucci. The officer said defendant wished to talk to an assistant State's Attorney about the Henderson homicide. Blomquist interviewed defendant at about 11 a.m. He gave defendant his Miranda rights. Defendant stated he understood these rights. Defendant said he did not want a lawyer or anyone else to be present. Blomquist testified defendant told him verbally about going out with the two men, changing clothes and the homicide, as above related. Defendant said he would give a statement to the court reporter. At about 12:50 p.m. the confession was taken by the reporter, typed, read by defendant and signed. On that date, other charges pending against defendant were dismissed.
Blanca Lara, a qualified court reporter, who had taken and transcribed the written confession, testified that, after defendant had corrected, signed and initialed the document, she took his picture with a Polaroid camera. She then endorsed the date, time and place on the back of the picture and signed it. Defendant wrote his name, address and age on the back of the picture. Assistant State's Attorney Blomquist also signed the back of the photograph. Blomquist testified defendant "looked healthy" at that time. The State then rested.
On behalf of the defendant, Alberta Walker, a friend of deceased and his widow, testified she saw the victim and his wife at the bar. The deceased had "a roll of money" and was gambling. This witness left the bar between 2:30 and 2:45 a.m. She drove west on Fifth Avenue and saw the victim standing on the corner of Karlov Avenue. There were two men and a lady with the deceased. One man was short and "really dark" and wore blue jeans and a vest. The other was about 6 feet 2 inches tall, also dark, and wore a blue jean jump suit. There was also a slender, dark lady weighing 105 or 110 pounds wearing yellow or beige clothes. None of these people wore coats. The witness testified the street lights were out and it "was dark" but her car lights were on so she could see. She stopped her car and the deceased looked at her but did not greet her. She did not see a plaid jacket or a woman with a long coat. She did not hear a shot. She did not see a gun. Defendant was not present. The deceased was then facing toward the lounge.
R.C. Jones, a friend of the deceased, saw deceased at the lounge. The deceased was shooting dice. The deceased had two $100 bills in his possession. He put these bills in a money clip and said they were vacation money which he was "not going to lose." Some time later, about 10:30 p.m., the deceased told the witness he had "won over one hundred dollars." The street lights were off on Karlov that night.
Genelle Treadwell testified she lived on Karlov Avenue. One night during the summer of 1975 she heard a shot and heard a woman scream a couple of seconds later. She did not look out of her windows. She could not recall the date or time ...