Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Francis J. Mahon, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Defendant, Glenn D. Warmack, was charged by information with the murder and attempted armed robbery of Willie D. King. In a jury trial in the circuit court of Cook County, defendant was found guilty of both offenses and sentenced to concurrent terms of imprisonment of 30 to 75 years for murder and 5 to 15 years for attempted armed robbery. On appeal by defendant, the appellate court held that the circuit court had erred in limiting defendant's impeachment of a prosecution witness, and it reversed the judgments and remanded the cause for a new trial. (73 Ill. App.3d 783.) The appellate court also held that a prosecutor had made improper comments in his opening argument and that the circuit court had erred in admitting a mug shot of defendant, but the appellate court expressed no opinion on whether this was sufficiently prejudicial to require a new trial. We granted the State leave to appeal.
On May 28, 1976, at approximately 11:20 a.m., Willie D. King was killed in his record store at 5921 South Halsted Street in Chicago. According to Martha Morrow, a woman who was in the store at the time, the killer was a young black man, approximately 18 to 24 years of age, and he approached the store on "a yellowish bike," wearing a billed black cap, a dark short jacket, dark pants, and a gold hoop-style earring. At trial, Miss Morrow was shown a dark waist-length jacket, a dark pair of pants, and a black cloth cap with a small bill, and she identified these items as the clothes worn by the killer. She also identified defendant, seated in the courtroom, as the killer.
According to Miss Morrow, defendant had entered the store, asked Willie King for a Fats Domino record, and grabbed her as King began to look for the record. Defendant pointed a gun at King and said, "Don't move." Miss Morrow looked up into defendant's face, and as King turned, defendant shot him once. The bullet entered King's chest, lacerated King's heart and a lung, and resulted in massive internal bleeding and death. According to Miss Morrow, defendant said "Money" after shooting King. Defendant then fled from the store, mounted his bicycle, and rode south toward 60th Street.
Martha Morrow further testified that two police officers visited her at her home on May 31, 1976, a few days after the killing. The officers showed her eight photographs of young black men, and she identified one individual pictured as the killer. At trial, she was again shown the eight photographs, and she indicated that the one that she had picked earlier was that of defendant.
On cross-examination, Miss Morrow acknowledged that, of the eight men pictured, only defendant wore his hair in braids; that only defendant's picture had no name on the back; that she had told a police officer at the scene that the killer was between 5 feet 4 inches and 5 feet 6 inches tall and weighed between 140 and 160 pounds. The record indicates that defendant was 6 feet tall and 157 pounds when he surrendered on June 1, 1976. Defense counsel asked Miss Morrow to estimate defendant's height, but a prosecutor asked that the jury first be informed "that Mr. Warmack is wearing approximately, my estimation, four inch heels and about an inch platform on the shoes." At the direction of the court, defendant walked in front of the jury, and Miss Morrow estimated his height to be 6 feet 4 inches or 6 feet 5 inches.
Martha Morrow also acknowledged on cross-examination that she once told the police that the killer wore a leather jacket; that she could not tell if the killer had long or braided hair because he wore a cap but that some hair was hanging from below the bill of the cap; and that the police had actually brought the eight photographs to her home twice on May 31, 1976, but that she did not pick out any on their first visit. Miss Morrow also estimated that defendant was in the store "a minute or more" and that she looked at his face a second or two before he shot King.
On redirect examination, Miss Morrow explained that she first identified herself as Denise Brown and failed to pick out defendant's picture because she did not want to get involved and because she was afraid of what defendant might do to her.
Prior to the testimony of its next witness, Edna Scott, the State moved to prohibit the impeachment of Scott with her 11-year-old felony conviction of attempted robbery and a 9-year-old misdemeanor conviction of soliciting for prostitution. The State argued that the attempted-robbery conviction lay beyond the 10-year limit enunciated in People v. Montgomery (1971), 47 Ill.2d 510, and also that the prejudicial effect of evidence of that conviction outweighed its probative value. The State further argued that evidence of either the attempted robbery or solicitation conviction would be improper because of the witness' rehabilitation. Defense counsel argued in response that both convictions were proper subjects for impeachment and that the passage of 10 years between conviction and a subsequent trial is not alone determinative. Following arguments, the court granted the State's motion as to both convictions, and it specifically rejected defense counsel's contention that the solicitation conviction evidenced dishonesty on the part of Miss Scott. Defendant moved for a declaration of mistrial, but the motion was denied. We are concerned on appeal with only the attempted-robbery conviction. Defendant does not question the circuit court's ruling as to the solicitation conviction, apparently since that offense was not "punishable by death or imprisonment in excess of one year" and did not involve "dishonesty or false statement." People v. Montgomery (1971), 47 Ill.2d 510, 516, quoting Proposed Federal Rule of Evidence 609(a).
When called to the stand, Edna Scott testified that she was in a drugstore at 5900 South Halsted Street shortly before the killing. She left the drugstore with the intention of going to King's record store, but as she approached it, she heard a shot, and a young black man ran out. Miss Scott estimated that the man was 5 feet 9 inches tall, 155 to 160 pounds, and in his 20's, and she said that he was wearing a black cap, black pants, and a black waist-length jacket. When shown the articles of clothing previously shown to Miss Morrow, Miss Scott identified them as the clothes worn by the man. According to Miss Scott, the man jumped on a bicycle after leaving the store, and he rode south to 60th Street and then east on 60th.
The following day, Edna Scott went to a police station to look at pictures, and she picked out one as that of the man who had run out of King's record store. She pointed out that the man pictured wore his hair in little braids as did the man who ran out of the store. A couple of days later, Miss Scott viewed six men in a lineup. At trial, she was shown a picture of the lineup, and she circled the head of the person she picked. She then identified defendant as that person.
Ray Luth, an investigator for the Chicago Police Department, was next called by the State to testify. It was Luth and another investigator, James Kehoe, who brought the eight photographs to Martha Morrow on May 31, 1976. Luth explained that, when Miss Morrow was first shown the photographs, she hesitated when looking at defendant's picture, but she failed to identify any of the men pictured as the killer. Luth and Kehoe left, returned one hour later, and Martha Morrow then identified defendant as the killer. Miss Morrow indicated to Luth, as she had testified, that she did not first identify defendant because she was frightened.
On June 1, 1976, Luth and Kehoe visited Margaret Hoffman, defendant's aunt, in her home at 604 West 61st Street, approximately three or four blocks from the scene of the killing. Luth testified that he asked Mrs. Hoffman if she had any of defendant's clothes and if he could have them. Mrs. Hoffman showed Luth where defendant's clothes were located, and he recovered a black cap, a dark blue waist-length jacket, a pair of black pants, a shortsleeved maroon sweatshirt, and a pair of brown and green suspenders. At trial, ...