APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, JR., Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of the offenses of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) and armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2), and was sentenced to concurrent terms of 35 and 30 years imprisonment, respectively. On appeal, defendant raises the following issues: (1) whether the trial court abused its discretion by allowing an unlisted State witness to testify at trial to the identification of defendant and his flight from the crime scene; (2) whether the trial court erred in restricting defense counsel's cross-examination of an accomplice to the crime; and (3) whether defendant was prejudiced by the introduction of rebuttal testimony which constituted collateral and improperly referred to his post-arrest decision to remain silent. The following pertinent evidence was adduced at trial.
On April 25, 1978, at about 10:30 p.m., 16-year-old Debra Mell was in her mother's apartment and was watching television with her brother, Terry Lee. Hearing a "loud knock" at the front door, she walked to the door and asked who was there. The visitor asked for her brother, Terry. She cracked open the door to see who was there, and two men pushed their way into the apartment. One man wore a red ski mask extending to the bottom of his nose, and carried a straight razor. The other was heavy set, wore sunglasses, and held a sawed-off shotgun. The man with the mask grabbed her, cutting her arm with the razor. He then pulled her into the living room of the apartment where her brother, Terry, was watching television. When her brother attempted to stand up, the masked intruder pushed him down and held the razor to his neck. The heavy set man stood in front of Terry Lee and held the shotgun about three inches from his stomach. At this point, the man with the mask told the other man to "shoot the m____." He did so. After being shot, her brother attempted to get up, but fell. He begged the man with the shotgun not to shoot him again.
The masked person then walked to the upstairs level of the apartment. He grabbed the victim's mother, Margaret Lee, as she came out of the bathroom, and pressed the razor against her neck. The man demanded her money, but she had none. Margaret Lee's son, Emmett, who had one leg in a cast, emerged from one of the bedrooms on a crutch. He raised his crutch to strike the intruder, but stopped when the latter threatened to cut his mother's throat. The man then dragged the woman down the stairs to the kitchen. Emmett Lee followed.
In the kitchen, the masked man forced Margaret Lee to kneel. Looking up at him, the woman was able to see that he had high cheekbones, a shallow jaw and a goatee. At trial, she identified this man as defendant, who lived in the apartment adjacent to the Lee family for three months prior to the incident. Since she had spoken with defendant on about 30 separate occasions, his voice was familiar to her and matched that of the masked assailant. Emmett Lee, who had also spoken to defendant on previous occasions, corroborated his mother's testimony that this person's voice was that of defendant. The heavy set man with the shotgun, who was standing over the victim, then approached Emmett Lee and placed the shotgun barrel in his mouth. Margaret Lee recognized the gun as belonging to "Honey" Robinson, another neighbor. Then, the man wearing the mask walked over to the wounded Terry Lee, picked up a television set, threw it on top of him and kicked him. After doing this, the man told his companion that there was "a white honky" upstairs in a bedroom. Armed with the shotgun, the heavy set man went upstairs. About one minute later, the other assailant followed.
Upstairs, the man with the shotgun found Larry Tate, who was living with the Lee family, in a bedroom. He demanded money from Tate, who complied by handing over his wallet. The assailant removed about three dollars from the wallet. The masked accomplice then entered, and started rummaging through the drawers in the room. Then, the masked person turned and, according to Tate, "made a mistake." The man looked at Tate, "when he turned on his side," which provided an opportunity to see the assailant's face. Tate observed the man's eyes and chin. The heavy set man, who apparently discovered that Tate recognized his companion, instructed Tate not to look and threatened to kill him if he said anything. Tate identified the masked person as defendant, the next-door neighbor. After a few moments, the two assailants ran downstairs and out of the apartment carrying a drawer from the bedroom which contained about $5 in pennies.
Meanwhile, downstairs, Margaret Lee remained with her dying son. Earlier, when the intruders left her and the others unguarded, she told her daughter, Debra, and son, Emmett, to leave and call the police. The police arrived shortly thereafter, and took the victim to the hospital.
Steve Robinson, the brother of Honey Robinson, testified that he had originally been charged with the murder of Terry Lee, but the State had agreed to drop those charges and to recommend a four-year sentence for a burglary charge in return for his testimony. He had known defendant, who was married to his sister, for about nine years. On the night of the crime, Steve Robinson met defendant at the latter's apartment, next door to the apartment where the murder took place. There, they discussed plans to "get even" with Terry Lee because of a previous fight between defendant and deceased stemming from an argument over "pills and beer." During the fight, defendant had attempted to shoot Lee, but the gun misfired. Lee and some others jumped on defendant, beat him and took away his gun.
When defendant asked Steve Robinson on the night in question if he knew anyone who would help him fight with the deceased, Robinson said that he did. The two left the apartment and later met with five men who were previously fellow members of the "Unknown Vice Lords." Defendant told the old gang members that some people at the project had been "messing with my mother," and also mentioned that Honey Robinson could supply a sawed-off shotgun. A heavy-set man, who later proved to be the trigger man, suggested that they get the gun. Then, defendant, the heavy set man and Steve Robinson obtained the shotgun from Honey Robinson. When they reached Terry Lee's apartment building, the heavy set man grabbed the shotgun and went up the stairway with defendant and the two Robinson brothers. They paused between the eighth and ninth floors of the building to discuss whom they were "going to get." Defendant suggested Terry Lee's name, but Steve Robinson rejected the idea. A short argument ensued, but then defendant told Steve Robinson, "You stay there. You ain't got no business here noway." Defendant put on a red and orange ski cap which had eye holes razored out of it. The heavy set person turned around his cap and donned sunglasses. All of the men except Honey Robinson then proceeded to the ninth floor.
Defendant knocked on the door to the Lee family's apartment. Steve Robinson stood outside the doorway. When the door opened, defendant and the heavy set man entered the apartment. Shortly thereafter, Steve Robinson heard a shotgun blast. He ran through the hallway to the stairwell. A short time later, members of the Lee family ran out of the apartment and to the stairway. Afterwards, the two assailants came out. Defendant ran past Steve Robinson carrying a drawer, but the heavy-set man approached Robinson, put the shotgun to his face, then ran down the stairs. When all three men reached the landing between the seventh and eighth floors of the building, defendant removed his mask. Then the men ran out of the building and separated. According to Robinson, defendant wore a blue jean outfit that night and had a moustache and goatee.
David Simmons testified that he was a resident of the apartment building. At about 10:30 on the night in question, he was walking up the stairs on his way to the ninth floor to visit Terry Lee. At the sixth floor, Simmons saw defendant coming down the stairs wearing blue pants and a "red skull cap" which extended down to his forehead. When he saw defendant, he ran, since he believed that defendant was running after him. Two weeks earlier, Simmons and Terry Lee had been in the fight with defendant over drugs and beer. After the fight, defendant vowed to kill Simmons and the deceased.
Defendant was the sole defense witness. He testified that he knew Terry Lee had been killed, but that he did not kill him. On the evening of April 25, 1978, he was not at the Lee family's apartment, and could not recall where he was. Defendant admitted having a fight with Terry Lee a few weeks before the night Lee was murdered, but stated that David Simmons was not involved. In fact, defendant had never seen Simmons before he testified. Seven or eight months after the crime occurred, defendant was arrested. On cross-examination, he denied talking to Assistant State's Attorney Michael Ward at the time of his arrest, and stated that he did not remember whether he denied knowing his wife or Steve Robinson.
On rebuttal, Assistant State's Attorney Michael Ward testified that he was present at the police station on the night that defendant was arrested. According to Ward, during his interview with defendant, he denied knowing his ...