APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 9, 1980.
Following a jury trial in the circuit court of Cook County, the defendant, Ellis McInnis, was found guilty of murder and armed robbery and was sentenced to a term of 25 to 40 years in the Department of Corrections. A co-indictee, Deola Johnson, pleaded guilty to the same offenses and was sentenced to 14 years. On appeal, the defendant argues (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the admission into evidence of hearsay acts and declarations of co-indictee Johnson violated his right to confrontation, cross-examination and due process of law; (3) his right to a fair trial was denied by the admission into evidence of statements not disclosed by the State; (4) the court erred by denying his motion for a new trial based on the discovery of a witness who was unavailable at trial; (5) he was denied due process because material evidence favorable to him was not disclosed by the prosecutor; (6) he was denied a fair trial by the court's denial of his motion in limine, which sought to preclude impeachment of his testimony with a prior criminal damage to property conviction; (7) he was denied due process by the court's refusal to instruct the jury as to the manner in which certain considerations granted a State's witness by the State could affect his credibility; and (8) plain error occurred where the prosecutor argued to the jury assumptions and statements of facts not based on the evidence.
Jean Dornhoefer, wife of the victim, Marc Gromer, testified that in the summer of 1977 they were living in a third-floor apartment at 5344 South Woodlawn in the city of Chicago. Both were students at the University of Chicago. On July 5, 1977, about 11:15 p.m. they decided to go to Jimmy's, a bar, because it was hot in their apartment. They arrived at Jimmy's about midnight and stayed there for about 45 minutes, talking to two friends. The victim had one or two bourbons. The couple returned home and Dornhoefer went to bed while the victim remained in the living room.
Shortly after 4 a.m. on July 6, 1977, Dornhoefer was awakened by voices in the living room. She opened the bedroom door and took one step into the hallway. She was wearing a nightgown. Someone grabbed her from behind, put an arm around her stomach, and pushed her head down. A knife was held at her chest. The person who grabbed her "hissed" at her to "Lie down, get down." Based on the clothing and arms and legs of this person, Dornhoefer thought he was a male. She was forced to assume a deep knee bend position with her head in front of her knees. She struggled briefly and called out "Mark, Mark, what's happening." Mark did not answer, but Dornhoefer heard a voice from the living room say something about "money." The person holding her told her to "get down, get your white ass down."
Before Dornhoefer was grabbed by the person with the knife she had one glimpse into the living room and saw her husband standing near another person. The other person was shorter than five feet six inches or five feet seven inches. She saw nothing in the hands of that person and could not describe the clothing the other person was wearing. The person holding her was wearing a striped multicolored shirt, tan pants, socks and dark shoes with laces.
Dornhoefer heard two people struggling in the living room. The man holding Dornhoefer said "kill him" and a short time later she heard the sound of breaking glass. She heard the words "rug," "T.V.," and "kitchen," and heard the voice from the living room say "Let's go" or "Let's get out of here." Dornhoefer got to her feet and a few seconds later the person who had been in the living room ran past her. She was only able to see the back of this person. She heard the kitchen door open and close.
Dornhoefer walked over to the living room window, looked down, and saw her husband lying on the sidewalk. She changed her clothes and went downstairs. On the sidewalk next to her husband was one of their kitchen knives. A strip of cloth was wrapped around his neck. She accompanied her husband to Billings Hospital where, at 8:30 a.m., she was informed that he was dead. She described the perpetrators as two male Negroes. The one in the living room was 13 to 15 years old and the one holding her was 18 to 21. She could not remember if she told the police that the person who held her talked with a hissing sound.
Later that day Dornhoefer returned to her apartment with two police officers and saw her living room was in disarray. Stereo speakers, a television, a suitcase with stereo equipment, a pair of curtains and a newspaper with some blood on it were on the floor.
Dornhoefer identified a photograph which portrayed her living room. The picture showed glasses and a pitcher which she and her husband used for dinner on July 5. She did not notice whether anything was missing from the apartment. She identified her husband's wedding ring in the police station on July 7, 1977. The victim always wore his ring except when he did the dishes.
On July 5, 1977, Dornhoefer parked the couple's 1974 Mustang on 54th between Woodlawn and Kimbark. The next time she saw the car it was parked at 54th and University.
Boyce Murphy, a caseworker at the Juvenile Detention Center, testified that he had known Deola Johnson for approximately five years and the defendant for approximately 1 1/2 years. He said that at about 1:30 a.m. on July 6, 1977, he saw the victim wandering around the Tiki Lounge talking to several people. He did not see the victim drink anything but he looked a little high. When Murphy left the bar at about 2 a.m. he saw the victim talking to the defendant and Deola Johnson in a car. Murphy said Johnson was dressed boyishly and had a boyish natural hairdo.
Levar Lewis testified that he pleaded guilty to a charge of attempt burglary on March 25, 1977. He received 60 days work release and three years probation. He was convicted of delivery of marijuana on August 29, 1975.
On July 5, 1977, at 11:15 p.m., Lewis arrived at Harper's Court at 53rd and Harper where he saw the defendant. The defendant's jaw had been broken and was wired. He talked through his teeth. The next day Lewis saw the defendant at the defendant's apartment. At that time the defendant told Lewis that he and Johnson had met a guy at the Tiki and were invited to his apartment. The defendant and Johnson agreed to "rip him off." The man "got wise" to what was happening so the defendant told him to lie down and then tied him up at knife point. They cut his ear. The defendant was gathering the stereo equipment when the man's wife came out of the bedroom. The defendant grabbed the wife, threw her down and told her to be quiet. The man was getting loose, the defendant told Johnson to kill him, and the man "pushed out the window with both hands out the window backwards." The defendant said no one pushed the man. After the man fell, the defendant wiped his fingerprints off the door and kitchen counter, ran out the back door and jumped over a fence. The defendant told Lewis the victim was white and lived at 54th and Woodlawn. The woman was wearing a nightgown.
Lewis saw the defendant again the next day, July 7, at the Unique Restaurant. He showed the defendant a newspaper article concerning the death of the victim. The defendant said he was worried that the man had talked before he died. He asked Lewis to look for Deola Johnson because he did not know if she had been arrested. Later that day Lewis learned that a reward had been offered. He went to the police and told them about his conversations with the defendant. He asked about the reward but he did not ask for any money. He went to the police before he read the newspaper. He admitted there was a lot about the incident in the newspaper. He saw the defendant again on July 8 at the Unique Restaurant. He said he did not remember what was said that day but admitted he could have told the defendant "Ellis, the police are looking for you," and that the defendant could have replied "I'll be right here working."
Lewis said he saw Phillip Grew about a week after he spoke to the police. Lewis denied telling Grew that the defendant had told him, Lewis, that the defendant had gone to the apartment and smoked marijuana and left and that nothing had happened to the man.
Lewis admitted that he was testifying for the reward. The State's Attorney was paying his rent while he was staying in the witness' quarters. He asked the police to relocate him from Hyde Park. In July he reported to the police that he had been shot at. He was never told that if he did not testify he would get three to five years. This is what he told his friends and sister, but he made it up. At the time of trial he had a violation-of-probation case pending. The State told him it would talk to the judge on the violation-of-probation case and would see if the probation could be extended. He had a battery case pending for which he had been charged after he got out of the witness quarters.
Lewis said he wrote a letter to the defendant. In the letter he said he had been arrested and that he would get three to five years if he did not testify. He admitted this letter was false. The reason he wrote the letter was in case the defendant knew who had shot at him.
Joseph Booth testified that at approximately 4:30 a.m. on July 6, 1977, he was awakened by Deola Johnson. She entered his apartment mumbling "[h]e went out the window." Johnson told Booth that she and her friend were on Woodlawn to "rip off" an apartment and that someone went out of the window backwards when they were in the process of tying him up. Johnson took a ring off her finger, put it on a table, and told Booth she did not want to get caught with it. Booth turned the ring over to the police. Booth knew Johnson was a heroin addict and a prostitute.
John Janda, a Chicago police officer, testified that he received a ring from Booth and that Dornhoefer identified it as her husband's ring.
Paul Marshall, a paramedic with the Chicago Fire Department, testified that on July 6, 1977, he responded to a call at 5344 South Woodlawn. He saw the victim lying on the sidewalk. He was bleeding, unconscious, and had a tan colored cloth about four inches wide in his mouth. Marshall observed blood on the left side of the victim's face. He saw no other blood. Marshall removed the cloth from the victim's mouth. He saw no knife. While they were working on the victim a policeman came up to them with a knife and asked them to look for a stab wound. They did not find a stab wound.
Dr. Jeffrey Korn, a physician, testified that at about 5 a.m. on July 6, 1977, he received the victim as a patient from an ambulance at the emergency room of Billings Hospital. The vicim had blood coming out of his ears, nostrils and mouth, was breathing weakly and was unconscious. At 6:30 a.m. he was pronounced dead. His injuries were no different from the injuries of anyone who might have fallen from a high place.
Dr. Robert Stein, chief medical examiner of the Cook County coroner's office, testified that he performed an autopsy on the remains of the victim on July 7, 1977. He observed numerous incised wounds, abrasions and contusions on the victim's head, face, chest, abdomen, inguinal region and lower extremities. It was his opinion that the cause of death was a severe cranial cerebral injury. He found no incised wound on the ear. He found no stab wounds. The injuries Stein observed were consistent with the victim having gone through a plate glass window and fallen on a hard substance 30 feet below. A toxicological report showed the presence of 129 milligrams percent alcohol in the blood and 116 milligrams percent alcohol in the bile. Tests for barbiturates, tranquilizers and opiates were negative; no tests were performed to determine the presence of marijuana.
Richard Thompson, a mobile lab technician with the criminalistics division of the Chicago Police Department, testified that on July 6, 1977, he was sent to 5344 South Woodlawn. He observed blood and broken glass on the sidewalk outside the apartment. He conducted a search for physical evidence in the apartment. He photographed the living room and found a piece of broken glass and a piece of newspaper with a red stain on it. Thompson took four sets of fingerprints from the living room, including prints from a stereo receiver.
Ronald Salter, an evidence technician with the Chicago Police Department, testified that he processed a 1974 Mustang for fingerprints. He obtained prints from the front window, rear view mirror and right rear seat latch.
Theatrice Patterson, a fingerprint technician with the Chicago Police Department, testified that the print obtained from the bottom of the stereo receiver was Deola Johnson's and that the defendant's print was on the right rear seat latch of the car.
Louis Vitullo, an employee of the police department's crime laboratory, testified that he examined the newspaper found in the victim's apartment. Two black and white animal hairs and one reddish-brown human Caucasian hair were found on the paper. The human hair was embedded in the blood. The blood was type AMN, which was the victim's blood type but not the type of the defendant or Johnson. The cloth found around the victim's neck also contained blood of the same type as the victim. A microscopic examination of the cloth did not indicate that it had been tied or bound.
Chicago police officer David Williams testified that he and his partner arrested the defendant on July 8, 1977, at the Unique Restaurant. The defendant spoke with clenched teeth; there was a hissing sound to his speech. Before testifying, Williams had read reports in which he had seen the phrase "hissing sound."
Wayne White, an investigator for the Chicago Police Department, testified for the defense. He said that a resident of the victim's building told him he saw someone coming down the stairs carrying an unidentified object at approximately 4 a.m. the night of the crime. The man told White he thought the person he saw was a male but it was dark and he was judging by the person's build rather than by any noticeable signs.
The defendant testified that on the evening of July 5, 1977, he was with the victim, Deola Johnson and another man outside the Tiki Lounge about 11 p.m. The defendant asked the victim for some of the reefer he was smoking. The victim said it was at his home and invited the defendant and Johnson to accompany him there. The defendant got in the back seat of the victim's car ...