APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 4, 1982.
At the close of a joint trial, a jury found defendants Charles Sanders and Benjamin Hunter guilty of murder, armed robbery and home invasion of Killis Dickerson (victim), an 81-year-old resident of the Stateway Gardens Housing Project (Stateway Gardens). Sanders was sentenced to the penitentiary for concurrent terms of 30 years for murder, 25 years for armed robbery and 25 years for home invasion. Hunter was sentenced to serve concurrent terms of 24 years for murder, 20 years for armed robbery and 20 years for home invasion. Their separate appeals have been consolidated.
The issues raised by Hunter on appeal include whether: (1) defendant was denied his constitutional right to confront witnesses; (2) the prosecutor's comments in closing argument were proper; (3) evidence of a separate robbery perpetrated against the victim the day before the incident was properly admitted into evidence; (4) a psychologist was erroneously prohibited from testifying as to Hunter's inability to read and low intelligence; and (5) Hunter's inculpatory statement was the product of an unlawful arrest.
Sanders raises the issues of whether: (1) the trial court erred in denying his motion for severance under the circumstances of the case; and (2) the trial court's allowance of hearsay testimony denied Sanders his right to a fair trial.
Defendants were indicted separately; however, on the State's motion, the cases were consolidated for trial. The trial court denied subsequent motions made by both defendants for severance on the ground that each defendant made a statement inculpating themselves and the other in the crime, thereby constituting "interlocking" confessions. Hunter's pretrial motion to quash arrest and suppress evidence was also denied by the trial court.
At trial, the State presented the following case. Otis Harris, who lived in the apartment above the victim on April 14, 1979, testified that at 4:30 or 5 a.m. on that date, he was awakened by a call for help. The voice sounded like the victim's. He called the police. Chicago Police Officer Claude Insley testified that he and his partner responded to that call and were directed to the victim's apartment, where they found the door locked. They called the fire department for assistance. While waiting at the door, Insley heard a noise near the window, turned and saw a shadow near the balcony and heard a thud below, like somebody jumping down from the window, coming from the victim's apartment. He could not recognize anyone. When Insley finally gained entrance to the apartment, he found the victim lying on the floor bleeding heavily.
The victim was transported to a hospital, where he died shortly thereafter. Dr. Eupil Choi testified that he performed an autopsy on the victim, from which he concluded that death was due to cerebral-cranial injuries inflicted by blunt trauma to the head.
Lonnie Austin, a security guard employed by Stateway Gardens, testified that after learning of the victim's death, he went to his apartment. He noticed that the bars of the window right next to the door had been pried open and that the window itself was open. The window was adjacent to the apartment door. One could open the window and reach around and unlock the door from the inside. On the day before the homicide, he spoke with the victim and observed that his face was swollen.
Chicago Police Investigator John Markham testified that after speaking with some residents in the victim's building two days after the incident, he went with his partner to Hunter's home and brought him to the police station. He had a conversation with Hunter there, during which Hunter stated that on the night before the homicide he met with another individual to discuss the robbery of the victim. On that same night they went to the victim's apartment, beat him and took $25. Hunter received $5 for his part in the robbery as a lookout man. In a second conversation, Hunter related that in the early morning hours of April 14, 1979, he discussed with Sanders the prospect of robbing Dickerson. Hunter was to act as a lookout. They entered Dickerson's apartment together. Hunter then left the apartment and went downstairs. When he saw a police car approaching, he went back upstairs to warn Sanders. Shortly thereafter, they left the apartment together. Hunter received $5 for his part in this robbery.
Elaine Geer, assistant state's attorney, testified that she went to the police station and met with Investigator Markham. She thereafter interviewed Hunter twice after apprising him of his constitutional rights, which he waived; once in the presence of a court reporter and once without. The recorded statement was essentially the same as the oral one. In his recorded statement, reduced to writing, and initialed by Hunter, who claimed that he could read and write, he stated that he was to act as the lookout man. They both entered victim's apartment through the balcony window. When the victim saw them he reached for a knife, but before he could do so, Sanders hit him in the face. After taking $5 from the victim, Sanders struck him in the head with a wood stick. Sanders beat the victim for 15 minutes, asking him where the money was. Hunter, standing at the kitchen door as lookout, observed these actions and, while he told Sanders not to hurt the victim, he did nothing to stop him. Hunter then went downstairs, looking to see if any police were coming. When he saw a squad car approach, he returned to warn Sanders. They left the apartment, but, once outside, Sanders decided to go back because the "old man got some more money". Hunter went home and sat on his porch where he saw Sanders jump out of the front window of the victim's apartment. At the close of Geer's testimony, the trial court instructed the jury to consider Hunter's statement only against him.
Chicago Police Investigator Joseph Murphy testified that he questioned Sanders about the incident after he was brought in on April 18, 1979. Sanders claimed that he was with his cousin, Oscar Flowers, in Freeport, Illinois, at the time. When Flowers was contacted by another officer, he said he had not seen Sanders since January of 1979. When told of this contact, Sanders stated that he was at home with his mother on the day of the crime. When the police contacted Sanders' mother, she said she had not seen her son for a period of several days. Murphy told Sanders about the statement given by his mother and confronted him with Hunter's written confession. Sanders thereafter orally related that in the early morning hours of April 14, 1979, he met Hunter in the breezeway of Stateway Gardens. Hunter, armed with a lead pipe, said they should rob the victim. Sanders was to remain on the first floor in the breezeway to watch out for the police. Hunter left for the victim's apartment while Sanders remained at the breezeway. He became interested in a dice game going on in a nearby hallway. He saw two police officers running by, but since he did not have enough time to warn Hunter, he left the building. The next day he spoke with Hunter, who said he beat the victim and stole $10 but almost got caught. Hunter escaped by jumping out of a window when he heard the police at the door. Hunter offered Sanders $5 but he didn't take it because he felt that the police knew who committed the robbery and did not want to get involved any further. Sanders refused to put his statement in writing. The State then rested.
Sanders called his mother, Beatrice Sanders, to the stand. She testified that her son left with his sister-in-law on April 12 to go to Freeport, Illinois, and did not return until the 17th. Pamela Mitchell, another defense witness, testified that she lived across the yard from the victim's apartment. At about 4 a.m. on April 14, she saw a boy named "Tyrone" jump to the ground from the victim's balcony. The police were never given this information. She was a good friend of both defendants. Several other defense witnesses testified that Hunter was at a party from 10 p.m. on April 13 to 5 a.m. on April 14, 1979. Hunter's mother testified that her son had trouble in school and did not read very well.
Hunter attempted to call Dr. Paul Sabatini, a clinical psychologist, who was prepared to testify that, based upon his analyses of the tests administered to him upon entering prison, Hunter was a borderline defective and was ...