APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A jury convicted defendant Derrick Bass of murder and attempt armed robbery, for which he was sentenced to a term of from 25 to 50 years in the penitentiary. He appeals his convictions, raising as issues the questions of whether or not: (1) material evidence favorable to the defense had been suppressed notwithstanding defendant's pretrial discovery request for such evidence; (2) a mistrial should have been declared, or, in the alternative, a new trial granted by virtue of misconduct of the state's attorney during the opening statement, trial and final argument; (3) defendant was proved guilty beyond a reasonable doubt; and (4) defendant's arrest should have been quashed and certain evidence suppressed. For the reasons hereinafter set forth, we reverse and remand for a new trial.
The evidence revealed that George Bell, the homicide victim, owned and operated a neighborhood grocery store on South Ridgeway Avenue in Chicago for a number of years prior to the date of his demise, February 9, 1977. On that date Bell opened his store for business at about 7 a.m. Between 8 and 8:30 a.m. Jonathan Mayfield, a recently hired stockboy, arrived to begin his third day of work. A customer who had been present at that time left the store and Bell sat down behind the candy counter while Mayfield moved to the rear of the store behind the meat counter. According to Mayfield, an intruder entered carrying a long dark gun and announced a stickup. The intruder fired two shots, fatally wounding Bell.
Evidence adduced at a hearing on defendant's pretrial motion to quash his arrest and suppress certain evidence reveals the circumstances of his alleged involvement. Three days after the shooting, on February 12, Iver Brown, married to Mayfield's sister, had a conversation with two Chicago Police officers, Cornelius Johnson and Arthur Jackson at Area 4 Homicide Police Headquarters at Harrison Street and Kedzie Avenue concerning Bell's death. Johnson testified at this hearing that Brown told him and Officer Jackson that he and Derrick Bass, known to Brown as "Dink," walked to Bell's grocery store together on the morning of the shooting, but that Bass entered alone. A few seconds later, Brown stated to Jackson, he heard a couple of shots and saw Bass run out of the store and away from the location. He looked through the door and saw Bell lying on the floor bleeding. At that time the butcher (later identified as Brown's brother-in-law, Mayfield) came out and said that Bell had been shot. Later that morning Brown received a call from Dink, who told him that he shot Bell when the latter reached for a gun.
Brown and the officers went to his mother's apartment where they were joined by homicide investigators Daniel Darcy and William Frost. In a rear bedroom, a cap, coat and .38-caliber revolver were recovered. Brown had defendant's phone number and apparently at police direction called him. Defendant agreed to meet Brown. The four policemen and Brown left the apartment, the latter entering his own vehicle followed by two police cars containing the police officers. Brown pulled up in front of a building on South Avers Avenue, from which defendant emerged and entered the car driven by Brown. They drove away and were later curbed by the police. Defendant was placed under arrest, read his constitutional rights and removed to homicide headquarters.
Defendant testified at the hearing on his motion that when Brown's car was stopped he asked police what was going on but received no answer. He was handcuffed and removed to the police station where he was fingerprinted and advised of his rights, but was never told why he was being arrested. Twenty minutes after his arrest he was placed in a lineup, at which time he was told the reason why he was there. After the lineup, he gave a statement to a police officer which was transcribed by a clerk and which he signed.
After reviewing the evidence, the trial court found that the police officers had probable cause to arrest defendant; they acted reasonably in proceeding without a warrant; and there was no basis upon which to quash the arrest or suppress the evidence. Defendant's motion was denied.
At the trial Mayfield testified as State's witness that he had known Bell for most of his (Mayfield's) life, and had begun working for him as a stockboy two days before the shooting. On the fatal morning, while washing meat pans, he heard the door open and saw defendant enter. He knew defendant as "Dink" and had seen him before. Dink was wearing a blue parka and a black cap, and was holding a long, dark gun in his hand. Dink announced a stickup and, when Bell reached down to his side, Dink fired a shot. Mayfield dropped to the floor behind the meat counter where he remained until he heard the door of the store open and close again. Rising from the floor, he called out to Bell lying on the floor and when he received no response ran out of the store and shouted, "call the police." Circumstances surrounding Mayfield's activities for the rest of the day were brought out at a post-trial hearing which will be described later in the opinion. On cross-examination, Mayfield stated that he did not tell police who had shot Bell when they first arrived. On redirect examination Mayfield testified that he gave the name Dink to the police immediately after he had taken a lie detector test; the defense maintains this was the first time it knew of such an examination. Mayfield testified that he had delayed several hours before informing the police of the name of the killer because they asked for his name, rather than his nickname.
Investigator Darcy testified that he and his partner, William Frost, investigated Bell's homicide. At the grocery store they observed the lifeless victim and had a conversation with Mayfield who accompanied them to Area 4 Headquarters and was with them until 6 or 7 p.m. that day. They spoke to Mayfield again on February 12 at Area 4 Headquarters and then proceeded to the second floor apartment of Iver Brown. His description of events taking place thereafter coincided with Officer Johnson's testimony given at the hearing on defendant's motion to quash.
Concerning other post-occurrence activities, Mayfield also testified at the trial that after he had viewed the lineup he went with police officers first to his own house and then to Iver Brown's house where police officers recovered a blue parka and a hat identified by Mayfield in court as the clothing he had seen defendant wear at the time of the murder. After viewing the long-barreled gun recovered in Brown's apartment, Mayfield stated that he had not seen it prior to February 9 and that it was not Iver Brown's gun.
For the defense, Dyrell Bass, defendant's 16-year-old brother testified that on the morning of February 9, 1977, he and defendant left home a little after 9 a.m., although he had not looked at a clock. He was late and had to be awakened by his father for attendance at the "Y" high school. After leaving the house he and his brother met a couple of friends who lived across the street and stopped at "Downey's" store on Cermak Road which defendant entered alone as Dyrell waited outside. Shortly thereafter they parted company. On cross-examination Dyrell could not remember at what time he woke on February 9, 1977, or the time he left the house that day, the day of the week on which that date fell, the fact that Bell was murdered on that day, or what his brother had been then wearing.
Robert Bass, defendant's father, testified that he overslept and missed a 9 a.m. appointment on February 9, 1977. He had awakened his sons shortly after 8:30 a.m. and saw defendant again at 8:40 a.m., telling him to get ready for school. When Robert left the house at about 8:50 a.m. defendant was still there.
Jim Downing, who owned the grocery store on Cermak Road, testified that he had known defendant and his brother Dyrell prior to February 9, 1977. On that date he saw defendant between 9:05 and 9:10 a.m., when the latter had come to buy cigarettes, although the store was not then open. He spoke to defendant through the bars of the door, through which he passed the cigarettes. He knew the Bass family for 12 to 15 years and had known defendant since he was little.
Karl Hobbs was called as a witness for the defense. He had been twice convicted of burglary and sentenced to probation the first time and 1 to 2 years the second. He was also known as Larry White and Carl Sherrard. He knew Iver Brown, Jonathan Mayfield and defendant, by the names, respectively, of "Dennis," "Nooney" and "Dink." He had been to Dennis' (Brown's) apartment 20 times before over a three-month period and had seen him with a long black gun every time he was in the apartment. People's Exhibit 9, the gun removed from Brown's apartment, belonged to Dennis according to Hobbs. He never saw Dink with the gun. Nooney [Mayfield] worked in Bell's store and was frequently seen by Hobbs at Dennis' apartment. He spent the entire day of February 8 with Dennis and Nooney in Dennis' apartment. Dennis and Nooney discussed robbing Bell's store and Nooney said the best time would be in the morning. Dennis was to be the "triggerman" and everyone was to spend the night ...