APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, William Jackson, was charged by indictment with three counts of murder in violation of sections 9-1(a)(1), 9-1(a)(2), 9-1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 9-1(a)(1), 9-1(a)(2), 9-1(a)(3)), and one count of arson in violation of section 20-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 20-1(a)). Following a jury trial defendant was found guilty of murder and was sentenced to the Illinois Department of Corrections for a term of not less than 40 years nor more than 120 years. Defendant appeals presenting the following issues for review: (1) whether defendant was proved guilty of murder beyond a reasonable doubt; (2) whether sufficient foundation was laid for the admission of expert testimony; (3) whether defendant was deprived of his right to a fair trial because he was not permitted to examine one witness, a Frank McMahan, as a court's witness; (4) whether the trial court erred when it refused to permit the jury foreman to ask a question; and (5) whether defendant's sentence should be reduced or the cause remanded for resentencing.
For reasons hereinafter set forth we affirm the judgment of the circuit court of Cook County.
Georgia Mae Lang (hereinafter referred to as the victim) resided with her daughter, Dorothy Lang Thompson, her son, Christopher Lang, and defendant in a first-floor apartment of a building located at 5260 West Adams Street in Chicago, Illinois. *fn1 This building was owned by the victim and her brother, Charles Jordan, who resided in the apartment contiguous to the one occupied by the victim. Christine Jordan, the victim's sister, occupied the basement apartment directly beneath the victim's apartment.
On June 25, 1975, at approximately 1:30 a.m. the victim returned home from her employment. At approximately 2:30 a.m. defendant returned home and was admitted to the apartment by the victim, whereupon he followed the victim into her bedroom. A conversation between the victim and defendant ensued during which both Thompson and Lang heard "loud voices" and "cursing." Thompson heard the victim tell defendant not to "shove" her and to "go back to the streets where [his] women [were]." Both Thompson and Lang remained awake until approximately 5 a.m.
Thompson was awakened at approximately 8:45 a.m. by the ringing of the telephone. Defendant, who was fully dressed, brought the telephone, which had a long extension cord, to Thompson's bedroom. As Thompson talked on the telephone, she walked into the den and saw her mother, who was lying on the couch, look up at her. As Thompson was concluding her conversation, she saw defendant enter the apartment carrying a silver pipe-shaped object approximately eight to ten inches wide. *fn2 Thompson returned to her bedroom and fell asleep.
At approximately 9 a.m. Lang was awakened by the loud voices of his mother and defendant emanating from the den. Lang heard his mother tell defendant "to leave and to go back to the street with his lady." Defendant responded that "he would be glad to" so do. Lang fell asleep but was subsequently awakened by "something." He opened his bedroom door and observed that the "whole den was on fire." He jumped from his bedroom window, ran to the corner and "pulled the fire alarm" even though it appeared that "someone had already pulled the alarm." Lang returned to the back of the apartment building where he saw a neighbor, Frank McMahan, attempting to extinguish the fire with a garden hose.
Thompson was awakened by her mother's "loud agonizing scream." She opened her bedroom door, saw smoke and flames, and then jumped out of her bedroom window. From the outside she could see that the den, where she had last seen her mother, was on fire. Thompson saw her brother running towards the fire alarm. After the fire was extinguished, Thompson observed that most of defendant's clothes were missing from the living room closet in which defendant kept them.
At approximately 8 a.m. on the morning of the fire, as Christine Jordan carried her garbage to the alley, she observed defendant's white 1974 Cadillac parked, facing east, at the gate. Approximately 45 minutes later Jordan saw Frank McMahan in the back yard. McMahan had entered the back yard through the alley entrance and had observed a white Cadillac, which he had seen driven by defendant, parked at the gate. Jordan then invited McMahan into her apartment for coffee. Approximately 15 minutes later, while sitting with McMahan in her living room, Jordan heard a "quick-like scuffling" and a "thud-like noise" from the den of her sister's apartment located directly above her living room. McMahan also heard a "scuffle" and a "thud on the floor." Jordan started toward the back door and while at her kitchen door, which is located approximately five feet from the outside door, she heard a "boom, boom noise." McMahan who had remained seated on the couch from where he could not see Jordan who was in the kitchen also heard an explosion above him which sounded like "hoof." Jordan "backed back," called for McMahan to come quickly and observed black smoke coming into her kitchen through a hole where a radiator had been removed from the kitchen upstairs. McMahan responded as quickly as possible and also noticed dark smoke coming into Jordan's kitchen. As Jordan stood at her kitchen door, she heard footsteps descending the stairs from the first floor. She then saw defendant. As she ascended the steps from her apartment to ground level, she saw defendant run through the yard to the alley and run in an easterly direction in the alley. Defendant was holding a bright can by its handle. Jordan lost sight of defendant for a few seconds because her view was blocked by a garage and trees. Defendant then turned around, ran in a westerly direction (back towards his automobile), got into his automobile and drove away. When McMahan reached Jordan's kitchen door, Jordan was already outside on ground level. As McMahan ascended the steps from Jordan's apartment to ground level, he observed defendant's car in the alley. As McMahan was uncoiling a garden hose, he saw someone get into the white Cadillac and drive away.
Jordan ran up the stairs to the victim's apartment, calling her sister's name but receiving no response. She then ran to the corner and pulled the fire alarm while McMahan attempted to extinguish the blaze with a garden hose.
On June 25, 1975, at approximately 10 a.m. Russell Haley, a Chicago firefighter, responded to a report of a fire at the victim's apartment building. Upon his arrival Haley entered the victim's apartment through the kitchen. Five to eight other firefighters had begun to extinguish the fire. Haley assisted another fireman who had discovered the victim's body in the den. Haley pulled the body into the kitchen.
Officer Dennis Semple of the Chicago Police Department received a radio communication directing him to the victim's building where a fire was in progress. Upon his arrival at 10:15 a.m. he observed a first floor apartment burning and was assigned to "direct traffic and crowd control."
Sergeant James Nemec, an evidence technician for the Chicago Police Department, and his partner, Thomas Ginnelly, spoke with fire personnel regarding the origin of the fire, took photographs, and searched the kitchen and den for possible evidence of arson. Nemec and his partner collected samples of debris from the den, including burned fragments of the couch and floor.
John Bailey, an investigator for the Chicago Fire Department assigned to the Chicago Police Department Bomb and Arson Unit, and his partner, Lieutenant William Kennehar, arrived at the scene of the fire at approximately 10:35 a.m. Bailey entered the kitchen and photographed the body lying on the floor. He examined the extent of burning in the den, and determined the origin of the fire to be at floor level in front of the couch. When Bailey entered the den, he smelled the odor of gasoline. He had also smelled gasoline in the kitchen while the body was lying on the kitchen floor. Bailey testified that the cause of the fire was the ignition of gasoline vapors which produced a "flash type fire" or an "instant explosion type fire" which was accompanied by a "whoosh" type explosion or a "boom" sound. He also noted that the building had not been "set up" by an arsonist.
After speaking with Christine Jordan, Bailey went to the alley behind the building, proceeded eastward for approximately 60 feet and discovered a gasoline can in a yard.
Dr. Pascual Culala, a medical doctor trained as a forensic pathologist, performed the autopsy upon the body of the victim. The external examination revealed extensive burns over the entire body, and a "very strong" odor of gasoline emanating from the "upper trunk, face and head region of the body." No marks of trauma or violence were apparent on the body other than those related to the extensive burns. The cause of death was extensive burns. A blood sample taken from the victim and analyzed by a toxicologist revealed a 51% saturation of carbon monoxide but did not reveal the presence of alcohol, barbiturates, tranquilizers or narcotics. Dr. Culala determined that the victim had gone into shock before she died, and that such shock could have been caused by dousing the victim with gasoline and then igniting the gasoline.
Officer William Tyrrell, a chemist for the criminalistics division of the Chicago Police Department, analyzed the samples of debris and the contents of the gasoline can, both of which had the odor of gasoline. His analysis indicated that the contents of the gasoline can contained a mixture of hydrocarbons commonly found in gasoline and that the debris contained some of the components commonly found in gasoline.
John Olejniczak, a patrolman technician for the Chicago Police Department, made a comparison of defendant's fingerprints with the fingerprints taken from the gasoline can. The prints taken from the gasoline can were not identical to the prints of defendant. Nor were they identical to the prints of several police and fire personnel. However, no prints for comparison were taken from the handle of the can.
A warrant for defendant's arrest was issued on June 26, 1975. On July 28, 1975, at approximately 3:20 a.m. Edward Zell, an Ohio State highway patrolman assigned to patrol U.S. Route 23 in Marion County, Ohio, was checking the registration numbers on vehicles parked in a southbound rest area and noticed that there was a person lying in the back seat of a 1974 white Cadillac. When the additional officers whom Zell had summoned arrived on the scene, defendant was arrested.
Stephanie Frias, a personnel assistant who maintains payroll and attendance records for Western Cullen, testified that defendant was hired by Western Cullen in 1971 and was terminated on June 30, 1975. Defendant's time card for the week ending June 28, 1975, indicated that defendant worked on June 23 and 24 but was thereafter terminated for his failure to report to work for three consecutive days. On June 27, 1975, defendant failed to claim a paycheck in the amount of $150.62 to which he was entitled, and on September 30, 1975, requested by letter that the check be sent to him. Although defendant was entitled to two weeks vacation, such vacation was scheduled for July, during a "plant shutdown."
Defendant first contends that he was not proved guilty of murder beyond a reasonable doubt. In support of his contention, defendant argues that the testimony of Christine Jordan, the sole witness alleged to have observed defendant exit the victim's burning apartment with a gas can, was "thoroughly discredited." Defendant further argues that the other evidence adduced at trial was "wholly circumstantial" and therefore insufficient to establish his guilt. The State maintains that defendant was proved guilty beyond a reasonable doubt by both direct and circumstantial evidence. The State further maintains that testimony of Christine Jordan was credible, consistent and convincing.
• 1 The weight and credibility to be afforded a witness' testimony is a determination for the jury as the trier of fact, and unless that determination is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant's guilt, the verdict will not be disturbed on appeal. (People v. Donald (1963), 29 Ill.2d 283, 287, 194 N.E.2d 227.) Proof of guilt beyond a reasonable doubt does not require proof beyond any possibility of a doubt. (People v. Williams (1977), 66 Ill.2d 478, 485, 363 N.E.2d 801.) It is not necessary that the jury disregard the inferences which naturally flow from the evidence, nor is the trier of fact required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. (People v. Benedik (1974), 56 Ill.2d 306, 309, 307 N.E.2d 382.) Rather, a trier of fact may use common sense and general knowledge in considering evidence and drawing the proper inference from it. (People v. Toliver (1978), 60 Ill. App.3d 650, 652, 377 N.E.2d 207.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused's guilt. Williams, at 485.
• 2 Defendant points to certain discrepancies in Christine Jordan's testimony as indicative of its untrustworthiness. These alleged discrepancies concern the exact location where Jordan was standing when she first saw defendant fleeing from decedent's apartment. On direct examination, redirect examination and cross-examination Jordan repeated eight times that she was standing at the door of her basement apartment when she first saw defendant. On one occasion during cross-examination she responded affirmatively when defense counsel inquired, "[t]hat's the first time you saw Mr. Jackson, when you were on ground level." However, of the nine times Jordan was questioned concerning her exact location when she first saw defendant, this was the only instance in which she did not respond that she was standing at her apartment door. These alleged discrepancies were before the jury and were properly a matter for their consideration. (People v. Kriston (1973), 12 Ill. App.3d 18, 22, 297 N.E.2d 206.) Minor discrepancies and inconsistencies in testimony do not render that testimony unworthy of belief, or destroy the credibility of that witness, but go only to the weight to be given that testimony. (People v. Hanna (1969), 42 Ill.2d 323, 329, 247 N.E.2d 610.) In the instant case these alleged discrepancies are not of such a nature as to render the testimony of Jordan so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant's guilt. The witness' apparent disorientation on the one occasion is easily explained by the confusing nature of the questioning by defense counsel. A complete and objective reading of the proceeding reveals that her testimony was substantially unchanged.
• 3 Defendant also argues that Jordan's testimony is incredible because there were contradictions between her testimony and Investigator Bailey's recollection as refreshed by his investigative report. Investigator Bailey's report indicated that Jordan had told him she had seen defendant pour a fluid on the kitchen floor as he exited decedent's apartment. Jordan adamantly denied making such a statement and her denial is consistent with her testimony that she did not see defendant until he was outside decedent's apartment. In People v. Watkins (1976), 44 Ill. App.3d 73, 357 N.E.2d 1376, a police officer testified from his report that the victim of an armed robbery had told him that she had once worked with defendant. At trial the victim denied that she had made such a statement. The appellate court held:
"The fact that there were contradictions between her testimony and the officer's recollection from the police report also does not render her testimony incredible. From our review of the whole record, keeping in mind the abbreviated forms used by the police when making their reports, we cannot say that the jury was precluded from inferring that the report evidenced a misunderstanding of the statement of the complaining witness." (44 Ill. App.3d 73, 76-77.)
Again, this contradiction was before the jury and properly a matter for their consideration. It is not of such a nature so as to render Jordan's testimony so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant's guilt.
• 4 Defendant has also placed considerable emphasis on Jordan's testimony which demonstrates that she did not report certain details to investigating police officers and firemen immediately after the incident. Defendant argues that Jordan did not inform Investigator Bailey that the gasoline can which defendant carried was bright or red. We note that Bailey found the gasoline can only moments after talking with Jordan. Defendant also argues that Jordan only told Investigator Bailey that defendant had run to the alley, turned east and "was gone," but failed to mention that defendant returned to his car and drove away. We note that the fact that defendant fled from the scene in his automobile is corroborated by defense witness Frank McMahan, who testified that he saw someone get into the white Cadillac and drive away. Jordan's alleged failure to report these details to investigating police officers and firemen immediately after the incident is easily explained by the fact that she had just undergone an obviously traumatic experience, and by the fact that the investigators did not question Jordan in as great detail as did defense counsel. The failure to report these details certainly does not render her testimony unreasonable or improbable.
Defendant also argues that Jordan's testimony was contradicted by McMahan's because McMahan only saw a person "getting into the white Cadillac" but did not see the defendant run across the yard. The State responds that McMahan's testimony is consistent with and corroborative of Jordan's. McMahan testified that by the time he reached the back door of the kitchen, Jordan was already on the ground level. Jordan testified that she first saw defendant begin to cross the yard while standing at her back door, and as she ran up the stairs to ground level defendant continued to cross the yard to the alley. Jordan was on the ground level when defendant reached the alley. Thus, it is not improbable or unreasonable that by the time McMahan ran up the stairs, he was only able to see a person as "they were getting into the white Cadillac."
Defendant also complains that Jordan and Christopher Lang had an apparent bias against defendant. When asked how defendant and her brother "got along," Dorothy Lang Thompson answered "not too good." Christine Jordan admitted that she "did not get along very well" with defendant but specifically denied that she was his enemy and that she had "pulled a gun" on him. Both Christopher Lang and Dorothy Thompson testified that they had never seen Jordan and defendant fight. There is no indication in the record that Jordan and Lang did not testify with complete impartiality and truthfulness. Moreover, the jury had ample opportunity to observe each witness and evaluate their credibility.
Defendant also argues that "there is no evidence linking him to the gas can" in light of the incredible nature of Jordan's testimony and the lack of his fingerprints on it. We have already determined that Jordan's testimony was both credible and consistent. Jordan identified the gasoline can as identical to the one defendant carried. Investigator Bailey recovered the can in a yard 60 feet east of the victim's apartment building. The jury was entitled to infer that the can recovered by Bailey was the same can defendant was carrying when Jordan saw him run east in the alley. The lack of defendant's fingerprints on the gasoline can was explained by Jordan's testimony that defendant carried the can by its handle, and by Officer Olejniczak's testimony that he did not test for fingerprints on the handle. Additionally, chemical analysis revealed that the contents of the gasoline can contained all the major components normally identified in gasoline ...