APPEAL from the Circuit Court of Cook County; the Hon. MARK
JONES, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The defendant was convicted of murder, aggravated assault and attempted murder and was sentenced to 20 years' imprisonment. He appeals contending that (1) the court erred in refusing to allow defendant to add to his list of witnesses the day before jury selection began; (2) the court erred in failing to hold a hearing on his motion to suppress identification; (3) the court erred in ruling that certain photographs shown to witnesses were not unduly suggestive. We find that while the court did err in refusing to allow the additional witnesses, the error was not prejudicial; that the trial court was entitled to draw its own conclusions as to the suggestiveness of the photographs, and that since the photographs were not included in the record, we cannot review the correctness of the trial court's determination.
In October 1975, the defendant, Saoud Mahdi, was charged with the murder of William Smith and the attempted murder and aggravated assault of Donald Miller which occurred on September 3, 1975. His attorney at that time (who is not present counsel) filed an answer to the State's motion for discovery stating he intended to call Shaly Jiwadt, Ali Moustafa and Napil Salama as witnesses. While defendant did not indicate in his answer to discovery that he intended to rely on an alibi defense, it is clear from the State's arguments made on the motion to amend this answer that it was aware that defendant intended to rely on an alibi defense. The defendant also filed a motion to quash the arrest and suppress the identification. The motion to suppress was based on the fact that the identification by the witnesses through the use of photographs was induced by the action of the police and that defendant's picture was the only one of an Arab included in the six photographs shown to the witnesses.
On June 29, 1978, the defendant changed attorneys. On July 20, 1978, the new defense counsel attempted to file an amended answer to the discovery motion. The answer listed as additional witnesses "any and all personnel of Evans Funeral Home, of Evergreen Cemetery and Mausoleum, of the major television stations and of Tabernacle Hospital." He explained to the court that there were certain accounts of the events of September 3, 1975, which might become relevant, that he had made a diligent search for those accounts and had someone working on it "at this moment" and the reporters were searching their files. The State objected to the adding of 20 or so new witnesses "at the twelfth hour" and indicated that the alibi defense was that the defendant was driving to Toledo and he had three or four witnesses who would so testify.
On July 21, defense counsel came back into court and indicated that he might want to add to the list of witnesses the names of two persons whom he believed were still living in the Cleveland area. He explained that he had known from the time he became involved in the case that defendant had stayed in Ohio but defendant could not remember the exact names of the witnesses. His investigation had been continuing to the present date. There were some language barriers and communication barriers and he still did not have the exact names of the witnesses. He was awaiting a phone call to get this information. If he did locate the witnesses and call them, he would make them available the day before for the State to interview. The court indicated that it did not believe that allowing the witnesses would put the State at a disadvantage and that it would allow them to be called if counsel could secure them in time for the State to interview them.
On July 24, 1978, defense counsel informed the court that the name of the Cleveland witness was Nageeb Afaneh. He was flying to Chicago, would arrive late that night and would be presented to the State first thing the next morning to be interviewed. At the arguments on the post-trial motion it was asserted that the witness had been flown in and had been available to testify.
On July 26, after it had rested its case, the State for the first time indicated it had a statement from two of the three defense witnesses originally listed in the defendant's answer to discovery; that these witnesses stated that the defendant's brother's funeral was a week prior to the shooting and that at the time of the shooting he was not in Chicago, he was enroute to Cleveland or in Cleveland. While the state's attorney claimed this information had been given to the original defense attorney, both present and prior defense counsel filed affidavits stating that the first time they received this information was on July 26. These affidavits were not contradicted by the State. The court then ruled that, except for the defendant or those witnesses on the previous list, it would not allow defense counsel to call anyone who would testify differently from what those witnesses indicated they would testify to. In other words, defense counsel could not call any new witnesses, such as personnel of the funeral home, who would testify the funeral took place on September 3.
On July 27, 1978, after the defense concluded its case, defense counsel made the following offer of proof:
"The list of witnesses which I amended contained a number of individuals and businesses, that was the Evans Funeral Home, located at 59 and Western and the offer of proof would be that if called, the director, if the director had been called to testify, he would testify that in fact the funeral of Mafti Mahdi was scheduled for September 3, 1975. He would testify to the size of the procession to the time that the funeral was scheduled to arrive at the cemetery and confirm the fact that the funeral was on September 3, 1975 as the Defendant, as a witness testified to.
The persons of Evergreen Cemetery would testify they had a funeral scheduled and interment scheduled for 1:00 o'clock that afternoon as was testified by the defense witnesses.
Mr. Nageeb Afaneh, who was the gentleman in Cleveland would have testified to the fact that the second man going who was in fact his cousin, he had a conversation with Jaweet who indicated to him he wished to take Mr. Mahdi to Cleveland. Mr. Mahdi was quite upset and stayed with him for a few days.
Mr. Afaneh did in fact come here the first time he had ever seen Mr. Mahdi was previously at the funeral, that he thereupon left to Cleveland after having made the arrangements to stay at his home and sometime that evening, shortly after he had arrived home and Mr. Mahdi and several other gentlemen arrived with them in Cleveland, Ohio, he remained there for several days or weeks and returned back to the State of Illinois."
He further informed the court that the news media did not have the information he had thought they had.
On July 20, 1978, the court also considered the motion to quash the arrest and suppress identification. There was some testimony that an arrest warrant had been issued, and the court ruled that it would deny that portion of the motion if the warrant was produced. Apparently this was done off the record. No appeal has been taken from this ruling.
The State for the first time on July 20 produced the photographs which had been shown to the witnesses. The defense objected to the photographs because while the defendant was an Arab the only picture of an Arab in the group was that of the defendant. The remaining photos included one of a Negro, one of a white man and several other persons of Puerto Rican or Mexican descent. The defendant requested that on the following morning (July 21) he be allowed to call the prosecution witness who viewed and the police officers who had shown the photos, none of whom was present in court on July 20. The trial court denied the request, stating there had been enough difficulty getting the case to trial. The selection of the jury actually began in the afternoon on July 21.
The trial court agreed with defense counsel that "if you say to pick out the Arab in the group, that you would probably conclude Mr. Mahdi was an Arab." He also stated that if he did not know Mahdi was an Arab and someone said Mahdi was either Cuban or Puerto Rican, he would agree. The judge concluded the photographs were not unduly suggestive. While the defendant has appealed from the decision, he has not included the photographs in the record on appeal.
At trial seven witnesses testified for the State: Dr. Choi, Dennis Siears, Captain James Flynn, Donald Maag, Anthony Perez, Police Officer John Bulger, and Donald Miller.
Dr. Choi, who performed the autopsy on William Smith, testified that Smith died of bullet wounds in the chest and abdomen. Smith had been shot three times, once in the hand. Tests showed that Smith had been intoxicated — the blood showed the presence of 345 milligram percent ethynol, about 3 1/2 times the amount needed before one is considered intoxicated.
Dennis Siears testified that on September 3, 1975, he was working at his gasoline station which was located on the southeast corner of 51st and Ashland in Chicago. He heard gunshots and walked northwest to get to the sidewalk at 51st Street next to his property. He saw two Arabs standing across the street on 51st Street in front of the cleaners. One of the men, whom Siears identified as the defendant, had a gun. He was putting it into the right side of his pants. The defendant then walked west to an alley which was immediately west of the cleaners. He got into a black Buick which was parked in the alley facing north. There was someone else behind the steering wheel. After defendant got in the car, the car took off heading north down the alley. The other Arab who had been with the defendant ran upstairs of the building where the cleaners was located. After this, Siears noticed a man lying on the south side of the street east of the filling station.
James Flynn is a captain with the Chicago Fire Department. He and four firefighters were returning from the Fire Academy in a 38-foot hook-and-ladder truck. The traffic westbound was "pretty heavy" and they were stopped. Flynn saw a man (Smith) lying on the ground on the south side of the street. He was lying in front of the end of a vacant lot; a tavern was immediately west. Another man was kneeling over him. This man was covered with blood.
Flynn instructed the driver to pull over to the side. The rig was too big to get to the curb; they just got out of the lane of traffic as best they could and parked on the north side of the street facing west and approximately in the area in front of the cleaners. Flynn and two of his men walked across the street to find out if they could be of any help. The man on the ground had been injured in some fashion. Flynn instructed his driver to call for an ambulance.
While he and two firefighters were standing with the man, Flynn heard a commotion in the background and heard some shots fired. He saw a man come around the back of the hook-and-ladder truck. Flynn saw him run across the street. The man stood over Smith and shot two or three shots into Smith's body. At this time the man was about one or two feet away from Flynn. Flynn and the other firemen then left. The man who had done the shooting ran towards the tavern. Flynn described the man as medium build, with bushy hair, wearing a print shirt. He could not identify him.
Donald Maag, a bartender at the tavern, then testified. He had been working at the tavern during the incident in question. At about 2:30 p.m. that day he noticed three or four persons across the street fighting. They were about eighty feet away. When he noticed them start to cross the street, he locked the tavern door. When he saw the people going back across the street, he opened up the door to see if anything was wrong outside. He saw one man lying on the sidewalk and another, covered with blood, standing over him. They were about 25 feet away. Maag then heard a shot. He looked around and saw a "guy" standing out in the middle of the street pointing a gun at the "guy" standing by the man on the ground. Maag, having observed him for five to 10 seconds, turned immediately and ran back into the tavern as he did not want to be shot. He heard one more shot after ...