APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, JR., Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 18, 1980.
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Woodrow Richard, was convicted of the murder of William Leben. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1.) Defendant was sentenced to a prison term of 50 to 100 years.
On appeal, defendant contends his conviction should be reversed because: (1) the identification testimony adduced at trial was neither positive nor credible; (2) he was substantially prejudiced by the trial court's refusal to allow questioning of the State's chief witness about her unlawful acts and her prior arrest for prostitution; (3) the trial court improperly refused his jury instruction concerning the defense of withdrawal from accountability (Ill. Rev. Stat. 1975, ch. 38, par. 5-2(c)(3)); and (4) the prosecutor's closing argument was improper and prejudicial.
At trial, police officer Bruce McElrath testified that on October 2, 1976, at approximately 11:30 p.m., he was patrolling in the vicinity of Cermak Road and Karlov Avenue when an unidentified citizen informed him that a man was lying in the street. McElrath proceeded to that location and found an elderly, neatly dressed male, later identified as William Leben, lying in the eastbound lane of 4100 W. Cermak Road. The elderly man was dead.
McElrath explained that Cermak Road is divided by a parkway and that the man's body was discovered close to a bench in the parkway. McElrath also noted that there is a bus stop sign nearby and that the area was "well lit" with "sulphur" streetlights which gave a "yellow cast." On cross-examination, McElrath stated he discovered Leben's body approximately five feet from the nearest streetlight. He also acknowledged that there were cars parked on the north and south sides of Cermak Road.
McElrath conducted a search of Leben's clothing and he recovered a wallet containing more than $70 in currency, and a "starter pistol" which only produces noise when fired. While conducting a search of the surrounding ground, McElrath found three spent cartridge shells.
Officer Theopsy Moore testified that when he arrived at the scene, several police units were present. He inventoried the items McElrath recovered from Leben's clothing and sent the three spent cartridge shells to the crime laboratory.
Sergeant Joseph Celovsky, a firearms expert, testified he performed tests on these cartridges and the two bullets removed from Leben's body. He determined that the three discarded cartridges had been fired from the same .25-caliber automatic gun and the two bullets taken from Leben's body had been fired from the same .25-caliber automatic gun.
Eddie Harris, a Chicago Transit Authority bus driver, testified he was driving a westbound bus on October 2, 1976, at approximately 11 p.m. when an elderly, neatly dressed man boarded the bus. Harris stopped the bus at the corner of Cermak Road and Karlov Avenue at approximately 11:15 p.m. and the elderly man left the bus. Harris remembered the area because it was late and the elderly male, "a white," was entering a "bad, kind of rough area." Harris returned to this area approximately 15 minutes later and saw three men running east on Cermak Road. He did not see the elderly man. Harris was not able to identify defendant as one of the three men he saw running.
The only eyewitness to the shooting, Gladys Nash, stated that on October 2, 1976, at approximately 11 p.m., shortly after drinking one can of beer, she left her home and walked to a friend's apartment located at 4100 W. Cermak Road. On the way to her friend's, she stopped at a lounge for five minutes, but she did not have anything to drink. After she entered the vestibule of the building located at 4100 W. Cermak Road, two men suddenly approached her. Although she did not know their names, she had seen them around the neighborhood and recognized their faces. The vestibule was well lit. Defendant, who was standing approximately one foot from Nash, began to make sexual advances towards her. Nash made an in-court identification of the defendant as the man who accosted her in the vestibule.
Nash further testified that she screamed and the two men then left the vestibule. As they left, Nash noticed a third man waiting outside. Nash rang her friend's bell, but there was no answer. She went outside and stood on the steps of the apartment building. From where she stood, she saw defendant and another man cross Cermak Road. Looking over five or six parked cars, she observed a "well dressed white man" later identified as Leben, sitting on a bench in the parkway on Cermak Road. Nash asserted she was standing approximately 50 feet from the park bench and she had a clear unobstructed view of the scene. Two streetlights, located near the park bench, illuminated the area.
Nash further testified that she observed defendant approach the man and begin to struggle with him. She also stated that defendant and his companion appeared to be going through the pockets of the man's clothing. Nash heard two or three shots fired and saw the man fall to the ground. Nash asserted she did not know at the time of the incident that what she heard were gun shots.
Defendant and his companion then ran in a westerly direction on Cermak Road. Nash observed an unidentified black object in defendant's hand as he ran. The elderly man staggered across the street. Nash then left the area and returned home.
On December 14, 1976, over two months after the incident, Nash identified defendant from a group of eight photographs as the person she observed on the night of October 2. On December 20, 1976, Nash identified the defendant from a lineup of five black men. Defendant's attorney was present during the lineup procedure. At trial, Nash again identified defendant, and she also identified pictures of Leben, the victim. Nash admitted she had been convicted of a misdemeanor theft in 1973 and that at the time of defendant's trial she was awaiting trial for another misdemeanor theft.
On cross-examination, Nash asserted that only two men approached Leben and that she did not see the third man after she first noticed him standing outside her friend's apartment. Nash also admitted she could not remember the type of clothing the defendant was wearing or whether he was wearing sunglasses. She further acknowledged that she did not actually see defendant's hands going into Leben's pocket.
Nash also admitted that at the trial of one of defendant's companions, she had not identified that person as one of the men who was with defendant on the night of the incident. She had identified that person, however, prior to that trial. She explained the inconsistency by stating that prior to that person's trial, she had received an anonymous threatening phone call, and the party calling warned her not to testify.
Investigator John Laskey testified that on October 3, 1976, he talked with people in the area where the incident occurred. On November 10, 1976, Laskey approached defendant and asked him to enter Laskey's car. As they drove to the police station, at approximately 11:30 a.m., Laskey advised defendant of his constitutional rights and defendant said he understood them. Defendant told Laskey he knew nothing about the shooting of Leben.
About 15 minutes later, they arrived at Laskey's office. Laskey and his partner, Charles Dulny, talked with defendant in an interview room at 12:15 or 12:30 p.m. and defendant denied any knowledge of the shooting incident which resulted in Leben's death. At 2 or 2:30 p.m., they again interviewed defendant, who continued to deny any knowledge of the shooting. At 7 p.m., defendant told Laskey that on the night of the shooting at 9 p.m., he met two friends, James Survell and Charles Hill. Charles Hill showed defendant a black and white small caliber automatic gun. The three men began to walk back and forth on 21st Street, looking for a victim they could rob. They stopped at 4111 W. Cermak Road. Defendant said he then left to purchase a pack of cigarettes at a store about a block away from where his friends were standing. As defendant walked back, he saw his friends take hold of a white man standing at a bus stop. He heard some shots, started towards them, but he changed his mind and walked away in the opposite direction.
Laskey then testified to the procedures of the photographic and lineup identifications in which Nash participated. He also noted that there were streetlights on both sides of the parkway where the shooting occurred and another ...