APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Philip Shaw and Ricardo White were charged by indictment with the offense of murder. Shaw elected to have a jury trial and White chose to have a bench trial. The trials were held simultaneously. Both defendants were found guilty of murder. Shaw was sentenced to a prison term of 40 years, and White to a term of 30 years. Both Shaw and White now appeal their convictions.
On appeal, defendants jointly contend that they were denied a fair trial because of certain improper statements made by the State during closing argument. Defendant White contends that (1) the trial court erred in finding him guilty of murder on the theory of accountability, and (2) the trial court erred in conducting his bench trial simultaneously with defendant Shaw's jury trial. Defendant Shaw contends that (1) the trial court erred in permitting the State on redirect examination to elicit testimony regarding a photographic identification which had not been asked about on direct or cross-examination, and (2) the trial court erred in ordering his defense attorney to refrain from making objections while defendant White's attorney was conducting cross-examination of one of the State's witnesses.
Philip Shaw and Ricardo White (defendants) were charged with the offense of murder. Specifically, the indictment alleged that defendants had shot and killed Edward Lewis on March 14, 1978. Shaw, who was represented by an assistant public defender, elected to have a jury trial. White, who was represented by private counsel, chose to have a bench trial. The trials were conducted simultaneously.
Four eyewitnesses to the shooting, Lillian Farmer, Marva Davis, Grandville Farmer and Willie Newman testified at trial. Lillian Farmer testified that she was working as a cashier at Ed's Cut-Rate Liquors at 843 W. 103d Street in Chicago during the early morning hours of March 14, 1978. At approximately 2 a.m. she was in the store together with the owner, Edward Lewis, and with another employee, Marva Davis. As Mr. Lewis was locking the front door in preparation for closing, two men appeared outside the door. Lewis opened the door and invited the two men inside. The men proceeded to a cash register, ordered a half-pint bottle of gin and paid for it. Meanwhile, Shaw was standing over to the side near a cigarette machine.
White walked over toward Lewis. Mrs. Farmer testified that they began "hitting on each other or tussling or maybe pulling, reaching at somebody." She further stated that she "felt they were just playing around." Mrs. Farmer looked away from White and Lewis to wait on a customer who had entered the store behind Shaw and White. She then heard four shots. She turned and saw Shaw pointing a gun toward Lewis, who was squirming on the floor. Farmer recalled saying "Why would Phil do a thing like that?" after the two left the store.
Later in the day on which the shooting occurred, Farmer examined photographs which were brought to her home by the police. She picked out photos of Ricardo White. Later, she viewed a lineup and identified Shaw and White.
Marva Davis also was working as a cashier at the liquor store when the shooting occurred. She testified that she had known both defendants for about three years. Her testimony substantially corroborated Lillian Farmer's account of the incident.
While the incident was occurring inside the liquor store, Grandville Farmer was sitting in his parked car outside of the store waiting for his wife Lillian to finish work. Farmer testified that shortly before the shooting he noticed a car with four persons in it parked outside the liquor store. Looking through the store window, Farmer witnessed the shooting. During his trial testimony, Farmer identified White as the person who had shot Lewis. When he examined a lineup photo during direct examination, however, he labelled Shaw as the gunman. In addition, Farmer previously had identified Shaw as the gunman when he viewed a lineup in which both Shaw and White participated.
Willie Newman testified that he was inside the liquor store when the shooting took place. A few days after the incident, Newman was shown a group of photographs, from which he identified Shaw and White as the two men involved in the shooting.
Investigator Edmund Leracz testified that he was called to the homicide scene shortly after the shooting. After completing his investigation at the scene, he went to Shaw's residence where he was joined by Grandville Farmer. Farmer identified a vehicle which was parked in Shaw's driveway as the vehicle which he had seen at the scene of the shooting. Leracz entered Shaw's residence and arrested Ricardo White and an individual named Robert Craig.
At the conclusion of the trials, the jury returned a verdict of guilty of murder against Shaw. The trial judge found White guilty of murder. Shaw and White were sentenced to prison terms of 40 and 30 years respectively. Both defendants now appeal their convictions.
Both Shaw and White contend that they were denied a fair trial because of certain statements made by the State during closing argument. The statements to which defendants object are as follows:
"These defense lawyers are hired guns, they * * *. They're paid to do a job and they do it well. And they're paid to do a job to mislead you, to confuse you, ...