APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, the defendant, Luis LeBron, was convicted of three counts of voluntary manslaughter (Ill. Rev. Stat. 1973, ch. 38, par. 9-2). He was sentenced to 3 concurrent terms of not less than 6 nor more than 18 years. Defendant appeals from his conviction. We affirm the trial court.
Defendant contends on appeal that (1) he was denied a fair trial, free from prejudicial error, where certain physical evidence was wrongly admitted, and (2) the prosecutor's closing argument was improper and prejudicial.
Jesse Abrego testified for the State that on August 10, 1975, at approximately 12:50 a.m., a small crowd gathered outside the Nite Lite tavern located at the corner of Tripp Street and North Avenue, in the city of Chicago. People were arguing and yelling at one another. According to the witness, defendant ran away from the crowd and away from North Avenue toward him (Abrego) and his companion, Joanne Santiago. Defendant was dressed in a dark velvet jacket and black trousers. Abrego testified that defendant stopped near the fence at the back of the tavern and stated, "If you MFers don't like it, I'll come back and kill you." He then reached into his jacket and drew out a revolver. Thereafter, he walked approximately 20 feet to a little side door near the fence on the right side of the tavern. Defendant raised the revolver and fired five shots in the direction of the men outside the tavern.
Abrego further testified that the first gunshot struck Johnny Flores. The second and third shots struck Arthur Arcia, and the fourth and fifth shots struck Joseph Morris. After defendant fired the fifth shot, he turned and ran toward the alley. He stopped in the alley and "took something out of the gun [and] put it in his hand." In the alley he was joined by two other men and they all proceeded eastward down the alley.
The witness stated he walked toward the tavern after defendant fled. He observed the three bodies and called the police. When the police arrived, they asked some of the people whether they saw anything happen; there were no responses. While the police were searching the grassy area next to the building, Abrego told them to look in the alley by the telephone pole. There, the police found a suspended shell and four casings.
Abrego gave an investigator a statement regarding the shootings and told the police he would go to the police station and give a statement if they so requested.
Patricia Paris, who lived across the street from the Nite Lite tavern, testified that at about 3 a.m. on August 10 plain-clothes officers spoke with her in her apartment. She told them she saw the gunman approach the corner from the north, and when he reached the corner he fired four or five shots. During the defense's case, Officer Radke testified Patricia Paris told him that after the assailant fired the shots he fled, along with three other men.
On the morning of August 10, 1975, Investigators Storck and Mudry were assigned the investigation of the triple homicide. On that same day, Storck interviewed Robbie Rivera and Esteban Rosario. The officer obtained a description of the assailant, but not his identity. After further investigation on that date, Officer Storck contacted several security agencies. On August 12, he and Investigator Mudry, accompanied by Rosario, went to defendant's place of employment. Rosario went inside the building and upon returning told the officers the man they were looking for was inside.
Investigators Storck and Mudry entered the building and saw defendant toward the rear, dressed in a security guard uniform. The officers asked defendant to surrender the weapon on his person, which he did. Thereafter, he was arrested and taken to the police station.
A lineup was held on the afternoon of August 12, 1975. Defendant participated in the lineup, dressed in a velvet jacket with a boutonniere, pants and shirt. Jesse Abrego, Patricia Paris, Rosario, and John Mocheo viewed the lineup. Abrego identified defendant as the person who shot the three men on August 10, 1975. John Mocheo told Abrego he could not pick the assailant out of the lineup.
Jesus LeBron, defendant's father, stated that on August 11, 1975, defendant gave him a gun and instructed him to put it in the house. Thereafter, Jesus LeBron gave the gun to defendant's brother-in-law, Nelson Cortez. Officer Sesso testified that on August 14, 1975, he visited the home of Nelson Cortez and spoke with him. After their conversation, the officer left and thereafter placed the building under surveillance. Cortez later went out the rear door of the premises and placed a brown paper bag over a fence. Officer Sesso retrieved the bag which contained the gun.
Officer Smith, a firearms identification expert, identified the revolver as the gun which fired the shell casings found in the alley behind the Nite Lite tavern. He also identified the gun as having fired the bullets removed from Arthur Arcia and Joseph Morris.
Tirso Escanio testified for the defense, stating that on the night of the shootings he was at the Nite Lite tavern. He stated that during the band's intermission he and a friend went outside. He noticed a fight break out near the back door of the tavern involving defendant and six Americans. He stated that so many people were talking at once he could not understand what anyone was saying. Escanio told the court his attention was drawn to the crowd when somebody called out "`A man pulled out a gun.'" He stated that someone had also said, "`Mike, pull out the gun,'" but he did not know who made the statements.
At certain points during Escanio's testimony, he gave conflicting statements. Initially, he testified that when the first shot was fired he did not know where it came from, subsequently, he testified the shot came from defendant and the others. He also stated that when the first and second shots were fired defendant and three other people were struggling with the gun on the back fence; thereafter, he testified that after the second shot he saw defendant struggling with three other people near the rear door of the tavern. Still later, he testified defendant had his back against the fence with three men facing him.
Escanio further testified that one man was struggling with defendant and another was hitting him. He also stated they were punching defendant, the defendant "went down," and they were "rolling against the fence" as defendant struck back with his hands. He did see "something" in defendant's hands as defendant rolled along the chain fence to the alley. Finally, the witness stated he was in his car and ...