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People v. Mctush

OPINION FILED SEPTEMBER 15, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JOHN MCTUSH, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Earl E. Strayhorn, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The defendant, John McTush, was convicted of murder and armed robbery and burglary on October 19, 1977, by a jury in the circuit court of Cook County. Lonzell Stone, a co-defendant, was tried without a jury contemporaneously and was also found guilty "in manner and form as charged in the indictment." After a hearing in aggravation and mitigation, McTush was sentenced to a term of 60 to 90 years' imprisonment and Stone was sentenced to a term of 25 to 50 years. On appeal to the appellate court (78 Ill. App.3d 603), the convictions of McTush were vacated and the cause remanded for an evidentiary hearing regarding the existence of an independent origin for a witness' in-court identification of McTush. Stone's conviction for armed robbery was reversed, his remaining convictions were affirmed, his sentence was vacated, and the cause was remanded for resentencing. The State appealed from the appellate court's judgment. We granted its petition for leave to appeal. (73 Ill.2d R. 315(a).) Only the validity of McTush's convictions is involved in this appeal.

On February 20, 1976, two men were observed entering the Kar-Life Battery Station at 6959 South Ashland Avenue in Chicago. According to the testimony of Terrence Watson, who was 11 years old at the time of the occurrence, he saw David Thomas, an employee of the battery shop, strike McTush in the mouth. McTush then shot Thomas four or five times and removed what was circumstantially proved at trial to be the shop's cash receipts from Thomas' jacket pocket. Terrence further testified that the other man, later identified as Lonzell Stone, went to the rear of the shop, out of his line of sight. Moments later Terrence heard more gunshots. Police officers who later searched the shop found the body of Dennis Harrison in the rear of the shop. He had been shot two times. As the men turned to come out of the shop toward their car, they looked directly at Terrence. Terrence then ran east on 70th Street toward Justine Avenue in a direction away from his home. After the men drove away, Terrence went home. Terrence later testified at trial that he saw the two men drive away in a black and brown Oldsmobile Delta 88 with a dent in the right fender. Terrence's mother, Mrs. Ira May Watson, looking from her kitchen window on the second floor of an apartment building adjacent to the battery shop, observed two men leave the shop and noticed that one of the men "strongly resembled" McTush.

On March 18, 1976, Terrence and his mother viewed a lineup, consisting of five black males of approximately equal height. One of the members of the lineup was McTush. Stone was not in the lineup. Neither Terrence Watson nor his mother identified any of the members of the lineup as a perpetrator of the offenses at the battery shop.

Subsequently, on May 24, 1976, shortly before testifying before the grand jury, Terrence and his mother were interviewed by an assistant State's Attorney. While his mother waited in another room, Terrence was shown a photograph of a separate lineup conducted on February 21, 1976. Terrence identified Stone from the photograph. McTush had not participated in that lineup. Terrence was then shown six photographs of various persons. Upon viewing the six photographs, Terrence indicated McTush as the man who had been with Stone on February 20, 1976. He also said that he had observed this same man in the lineup conducted on March 18, 1976. Mrs. Watson was unable to make a positive identification but she stated that McTush "strongly resembled" the man in the gray coat she witnessed leaving the battery shop.

At a hearing on a motion to suppress Terrence's out-of-court identifications of Stone and McTush, the trial court granted the motion as to the May 24, 1976, identification of McTush on the ground that it was impermissibly suggestive. The court said, however, that if evidence of an independent origin for the identification, apart from the identification made May 24, 1976, could be adduced, then Terrence could subsequently make an in-court identification of McTush. The court requested that defense counsel attempt to establish that there existed an independent origin for Terrence Watson's identification of McTush. The defense then called Terrence Watson and the following exchange occurred:

"Q. [MR. DEUTSCH] Okay. Now, what happened when you looked in that window? What did you see?

A. Well, I seen David Thomas hit McTush. I seen this man hit McTush in the mouth.

Q. Now, you seen David Thomas hit McTush in the mouth. Who's David Thomas?

A. The man that used to work in the battery shop.

Q. And when you saw — how did you know it was McTush?

A. He used to sit around the house.

Q. What house?

A. Over there where Stone ...


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