APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County the defendant was convicted of murder and armed robbery. He appeals contending (1) he was denied his right to a fair trial because the trial court erroneously admitted evidence of a prior crime; (2) he was denied a fair trial because of improper arguments made by the prosecutor during closing arguments; (3) the trial court erred in not permitting him to cross-examine a witness on the witness' criminal record in order to show bias, interest and motive to testify falsely; (4) the trial court erred in admitting the defendant's bank records into evidence; (5) he was not proved guilty beyond a reasonable doubt because the testimony of the State's two main witnesses was improbable, inconsistent and untrustworthy; and (6) the trial court erred in denying his motion for a new trial based upon newly discovered evidence.
The undisputed facts in this case are that sometime between 6:30 and 11 a.m. on September 18, 1978, Alexander Nimoh, the manager of a Clark Oil Company service station at 500 West Garfield Boulevard in Chicago, was murdered during a robbery at the station. Nimoh was shot three times in the head, and $1,373.88 in cash and property were taken from the station. After the robbery, money wrappers were found lying on the floor, and there were stacks of coins on a shelf.
On December 10, 1977, the defendant was hired to work at the Clark Oil Company gas station located at 710 North Milwaukee Avenue in Chicago. He also worked at the station at 500 West Garfield, but it is unclear from the record exactly when he worked at that location. On February 2, 1978, the defendant's salary was raised and he was promoted to the position of manager of the Clark Oil Company gas station at 3357 West Harrison Street, Chicago. On May 18, 1978, the defendant was demoted from manager to attendant. Later that month he was fired. The defendant admitted that he was familiar with the gas stations' procedures and specifically with the bank deposit procedures. According to the testimony, he had himself been responsible for preparing deposits when he was a manager.
It is undisputed that on the day of the robbery, probably before noon, the defendant deposited $924 in his bank account. Just prior to the deposit made on September 18, the balance in the account was $5. Following the September 18 deposit there were withdrawals of $175 on September 21, $200 on September 22 and $50 on September 29. The remaining balance of $505.22 was withdrawn when the account was closed on October 2, 1978.
The State introduced evidence that the defendant had committed another robbery of a different Clark Oil Company gas station about three months prior to the commission of the crimes charged here. The State's proof concerning the prior offense will be detailed subsequently. Troy Whitmore and Mark Sanders were the State's principal witnesses. Whitmore was 11 years old at the time of the crime and 13 years old at the time of trial. He had worked with the defendant at the Clark station at 500 West Garfield Boulevard. At approximately 8 a.m. on September 18, 1978, Whitmore left his home in the Roseland neighborhood of Chicago. He traveled by public transportation to the gas station. At approximately 10 a.m., just after he arrived, Whitmore saw the defendant drive a green station wagon into the gas station. As Whitmore stood behind one of the station's gasoline pumps he saw the defendant get out of the car, walk to the passenger side, reach through the car window and remove a gun from a jacket which was hanging there. The defendant walked into the station with the gun at his side. Nimoh was standing with his back toward the outer door of the station office, facing the door to the back room of the office. The defendant put a gun to Nimoh's back. The defendant and Nimoh walked into the back room, a storeroom, and the defendant closed the door behind them. Because the door was closed Whitmore could not see what occurred but about two or three minutes later he heard a single gunshot. The defendant then exited the station office, carrying a shiny gun and the beige zippered pouch which was used at the station to make "bank drops."
While testifying Whitmore referred to the defendant as "Eddie" even though the defendant was not known by that name. This was because Whitmore knew a person who looked like the defendant and his name is Eddie. According to Whitmore, the man he saw at the Clark Gas station on the morning of the crime was "the Eddie that's in court today."
Whitmore testified that it was not raining at 8 a.m. when he left his home or at anytime on the morning of the occurrence.
After witnessing the events testified to, Whitmore ran away from the station. He returned later that day and saw police officers there. He did not tell them what he had seen. He returned to the station the following day and again the police were there. The officers questioned Whitmore and told him that he knew about the murder. He denied having any information. According to Whitmore the officers told him that if he did not tell what he knew that he could go to jail. When asked whether he believed that he could go to jail if he did not tell the police what he knew, Whitmore answered affirmatively. He stated that he told the police officers the truth.
In an attempt to show bias, interest or motive to testify falsely, defense counsel sought to bring out during his cross-examination of Whitmore the fact that Whitmore was on probation and the fact that several juvenile petitions against him had been stricken with leave to reinstate. The court reviewed Whitmore's juvenile record and found that it was not a basis for bias as to which cross-examination is appropriate. Defense counsel was permitted to show that Whitmore did have previous contact with the police.
Mark Sanders testified that he had known the defendant for about two years and lived almost directly across the street from him. At approximately 5 p.m. on Saturday, September 16, 1978, the defendant came to Sanders' home and asked him to accompany the defendant to the gas station at 500 West Garfield, about six blocks from Sanders' home. The defendant wanted to "case" the station to determine when "the man" would be there by himself. Sanders testified that he refused and told the defendant that it was a stupid idea to commit a crime where the defendant was known. According to Sanders, the defendant then said that he was going to "check it out."
Sanders awoke at about 11:30 on September 18, the morning of the robbery. It had been raining that morning but the rain had stopped by the time he awoke. At exactly 1 p.m. the defendant came to Sanders' home. It was not raining but the defendant looked damp. He had blood splattered about eight inches up on the bottom of his beige pants and on his brown buck shoes. Sanders could tell by looking at the defendant that something had occurred, and he asked the defendant what he had been doing. The defendant answered that he "took off the thing I had been telling you about." The defendant then asked Sanders to keep a large, silver gun for him. He offered Sanders $40 or $50 from a brown paper bag which contained currency and coins. Sanders saw what looked like a lot of money inside the bag. Some of it was banded with brown paper strips in 3/4-inch stacks. Sanders refused to keep the gun for the defendant.
The defendant told Sanders that he shot the manager of the gas station in the leg. Sanders did not learn until a week later that the manager had been killed during the robbery.
Chicago Police Department Investigator Richard Solita was among the witnesses called by the defendant. Solita testified that he visited the defendant's house in Chicago looking for the defendant. The defendant's mother did not know where he was but she suggested that Solita contact the defendant's best friend, Mark Sanders, to learn the defendant's whereabouts. Solita contacted Sanders who stated that he ...