APPEAL from the Circuit Court of Cook County; the Hon. WAYNE
W. OLSON, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendants, Ben Dorsey and Leon Harris, were charged with murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and attempt armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 8-4) of Roger Walton. Following a jury trial, both defendants were found guilty of murder and not guilty of attempt armed robbery. They were sentenced to serve a term of 14 years to 14 years and 1 day in the Illinois Department of Corrections. Defendant Dorsey asserts on appeal that (1) the court erred in denying his request for severance from Leon Harris; (2) failure to give a limiting instruction prohibiting jury use of the Harris statement as evidence against Dorsey was plain error; (3) the trial court erred in extending the speedy trial term; (4) he was prejudiced by deliberate prosecutorial defiance of the court's ruling that conversations between Mattie Grady and the police were irrelevant; (5) non-cumulative, critical, hearsay testimony about the failure of Gene Williams to identify Curtis Nelson requires reversal; (6) the trial court erred in receiving certain evidence from Gene Williams; (7) the trial court applied an erroneous standard in excluding evidence from the victim; (8) he was denied his right of confrontation when the court prevented inquiry into the address of the State's chief witness; (9) appointed counsel's defaults deprived him of a fair trial and full and timely appellate review; (10) misconduct on the part of the prosecutor deprived him of a fair trial; and (11) the errors in this case were not harmless.
In April 1975, defendants Leon Harris and Ben Dorsey were charged by indictment with three counts of murder and one count of attempt armed robbery. On April 13, 1976, defendant Harris filed a petition for severance of his trial from that of defendant Dorsey. Defendant Dorsey joined in that petition at a hearing held on October 6, 1976, at which time the petition was denied.
On October 15, 1976, the State filed a petition for a 60-day extension of time with respect to the trial of defendant Dorsey. In support of its petition, the State presented Donald Conley, a State's Attorney investigator, who testified that he was assigned to locate Mattie Grady, an alleged eyewitness. He stated that he went to 7016 South East End Avenue, in Chicago, and learned that no one by that name lived there. Investigator Conley also contacted the Chicago police department, the United States Postal Service, and the Department of Public Aid, none of which had any records under the name Mattie Grady. He further contacted certain agencies in Biloxi, Mississippi, at the suggestion of his fellow investigator, Russell McKibben. He communicated with the Mississippi police department, which was to contact the Department of Public Aid in Biloxi. Conley stated he had not received any word from the Biloxi police department or the Department of Public Aid, nor had he attempted to reach them after the initial call. The court granted the 60-day extension.
Prior to trial, the Assistant State's Attorney informed the court of the State's intention to introduce the prior written statements of defendants Harris and Dorsey. He indicated the statements would be edited to avoid references to a co-defendant. The defense attorneys objected, arguing that excising the statements would not eliminate the possible prejudice that could result from their admission into evidence. The trial court determined the statements, as edited, were admissible.
The prosecution called Gene Williams as its first witness. He testified that on February 13, 1975, at 4:15 a.m., he was at the home of a friend who resided at 52d and Aberdeen. He and his friend, Eddie, left there and took a Checker taxi to 47th and Shields. According to Williams, Eddie left while he waited in the cab with the driver. About 10 to 15 minutes later, a Cadillac automobile with several occupants pulled along side the taxi and stopped. The occupants looked into the cab, whereupon the driver backed the car toward the corner of 48th Street and stopped. Two men got out of the Cadillac and walked toward the cab. When they were only a few feet away, the men stopped and then ran the remaining distance to the taxi. Williams was able to see the faces of the two men, whom he later identified as Ben Dorsey and Leon Harris. According to the witness, each man had a pistol. Dorsey was on the driver's side of the cab and Harris was on the passenger's side. Dorsey said a few words, and then Dorsey and Harris began shooting. Williams testified that because he had ducked onto the floor of the back seat of the cab, he did not see the shooting, but he heard about a dozen shots. When the shooting stopped, he heard the men running away; he rose to watch them as they ran back to the Cadillac. The defendants got into the car and drove away. Williams stated he got out of the taxi and attempted to make the driver comfortable before looking for assistance. He returned to aid the cab driver until the police arrived.
Williams attended a lineup on February 14, 1975, where he identified Harris. He also attended a lineup on March 24, 1975, at which time he identified Harris and Dorsey.
Williams also testified that as a juvenile he was found delinquent and guilty of aggravated battery and voluntary manslaughter. As an adult, he had been convicted of burglary, delivery of a controlled substance, possession of a hypodermic needle, and shoplifting, twice. At the time of trial, a charge was pending against him for possession of a "1 tin" bag of heroin. He further testified that he used heroin between the winter of 1975 and May 1976, but he had not used any narcotics since that time.
Officer Wayne Raschke testified that on February 13, 1975, after receiving a telephone call, he went to 4750 South Shields where he observed a man standing in the doorway of the driver's side of a Checker cab. The man was holding the driver up on the seat of the cab so as to prevent his falling to the floor. The driver, Roger Walton, was bleeding from both sides of his upper body and arms. The officer identified the other man as Gene Williams. The officer stated that Williams was bleeding from the hand and neck. Prior to both men being taken to the hospital, Williams related the incident to Officer Raschke and described both offenders.
Prior to cross-examination of Officer Raschke, the State presented a motion to preclude defense counsel from eliciting testimony concerning any conversation between Officer Raschke and Roger Walton. Defense counsel stated he intended to show that the victim had made a dying declaration. Following an in camera hearing during which Officer Raschke was questioned, the court ruled that any statements made by the victim did not qualify as a dying declaration.
Assistant State's Attorney Irwin Solganick testified that on February 13, 1975, at about 8:30 p.m., he spoke to Ben Dorsey at the police station. Dorsey gave an oral statement to him and agreed to give one before a court reporter. Solganick stated he then spoke to Mattie Grady, defendant Dorsey's girl friend, who told him she witnessed the incident. Additional references were made to Mattie Grady, and both defense counsels moved for a mistrial. The motion was denied.
Solganick read Dorsey's edited statement to the jury. Dorsey acknowledged he had been at the scene in his 1968 Cadillac. He conceded that after the shooting he was afraid, left the scene, and initially denied involvement. He stated that after leaving a party at 4713 South Shields he, Mattie Grady, two men and two other women got into his car. They drove to 48th and Shields so that Dorsey could obtain a radiator from an all-night junkyard. After he left the junkyard and returned to his car, one of the men in the car, Curtis, said Dorsey could drop him at that point since there was a taxi further up the street. Curtis began walking toward the cab. The other man in the car got out and began walking toward the junkyard. Dorsey saw Curtis standing on the driver's side of the taxi. Next, Dorsey heard shots and saw Curtis running back toward the car. Dorsey drove his car into the alley; the other man got into the car and they drove away.
Assistant State's Attorney Arthur Stefans testified he interviewed defendant Harris at the police station on February 14, 1975. In Harris' edited statement, he said that at 3:30 a.m. on February 13, 1975, he left a wake at 4714 South Shields with his girl friend, Carol, Curtis Nelson and Mattie Grady. They all went in one car to his home at 4765 South Shields. Harris stated that at about 4:30 a.m. "he" left and then returned approximately 10 minutes later. "He" then asked Harris to help him rob a cab driver, but Harris refused because he did not want to run the risk of violating his parole. "He" had a gun and told Harris if the man "acted funny" he would shoot him. Harris stated that "he" was standing approximately 2 feet from the driver's side of the cab. "He" shot the cab driver from the passenger's side, and then "he" went around to the back of the cab. "He" stated the cab driver had a gun, but Harris did not see one in his hand. "He" began shooting, firing five times. Nelson was standing next to the taxi during the shooting. Thereafter, Nelson and "he" ran from the scene.
According to Harris' statement, he and his mother were standing on the front porch of his house, approximately 300 feet from the cab, during the shooting. His mother went inside when she heard the shots, but Harris remained on the porch until the incident was over. Thereafter, he went inside and went to bed. About 2 hours after the shooting, Harris went to Curtis' house. While there, ...