APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT
McKAY, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1982.
James Smylie was charged by information with the murder of Lawrence Sanders. After a jury trial, Smylie was found guilty of murder and sentenced to 25 years in the Illinois Department of Corrections. Defendant appeals, asserting: (1) he was denied a fair trial by the trial court's limitation of defense counsel's cross-examination of two police officers; (2) he was denied due process and a fair trial by the State's improper closing argument; (3) he was denied a fair trial when the trial court admitted into evidence a number of prejudicial photographs of the decedent; and (4) he was not proved guilty beyond a reasonable doubt.
On August 17, 1978, at about 4 a.m., a Harvey police officer responded to a radio dispatch to investigate the area of 158th Street and Lincoln Avenue for a man face down in the street. The officer found the body of Lawrence Sanders, who had been shot four times at close range. The State's evidence was as follows.
Detective McCarthy of the Harvey police department interviewed the decedent's girlfriend, Peggy Price, at her home on the evening of August 17, 1978. She said that at 1 a.m. on August 17, she was sleeping with the decedent when defendant knocked on the door and said he wished to talk to the decedent. The decedent was awakened and after some coaxing by defendant, went for a ride with defendant in the latter's car. Price testified that she recognized defendant's voice and appearance from the two or three times she had met him previously. She also testified that she heard defendant tell the decedent that he needed the $60 owed him. When she looked out the window of the apartment as the man left, Price saw the decedent get into the car with defendant. McCarthy, along with Detective Thomas Morrison and others, went to defendant's house and were told defendant wasn't there. They then went to defendant's brother's house. A man answered and identified himself as James Smylie. He was arrested and taken to the Harvey Police Station. At the station, the man told the officers he was John Smylie, not James Smylie, and said he told them he was James because there were arrest warrants for traffic violations issued against him (John) in Chicago. McCarthy left the station but returned when he was informed that defendant had come to the police station to turn himself in for the murder of Lawrence Sanders.
Officer Rizzi, who was working the front desk of the police station when defendant arrived, testified that defendant came in and said they were "holding the wrong guy" and that "he was there to give himself up" for killing Sanders. Morrison testified that defendant was given his rights and that defendant filled out a constitutional rights form acknowledging that he understood his rights. Defendant then gave an oral statement confessing to the killing of Sanders.
When he was asked to complete a written statement, defendant began but said he was too nervous to write and asked Morrison to write it out for him. Morrison said he couldn't do that but said he would have it typed. Detective McCarthy, with defendant present, dictated a statement to Phyllis Egelbrecht, a civilian typist, who typed it on a statement form. Defendant read the statement and signed it. Morrison denied asking defendant to take a paraffin test.
During cross-examination, defense counsel attempted to question Morrison concerning the information he received from Peggy Price. The State objected on the ground that such testimony was hearsay. Defense counsel responded that the testimony was not hearsay since it would not be used to prove the truth of the matter asserted. Defense counsel said it would be used to show that the police had sufficient information to fabricate defendant's alleged confession. The trial court ruled that the testimony was irrelevant and immaterial to the issue of the voluntariness of the confession.
Defendant offered the following evidence in his case-in-chief. A stipulation was read stating that if called to testify, Michael Schaeffer, a toxicologist, would say that he tested specimens of decedent's blood, urine and bile and did not detect the presence of alcohol. Defendant argues that this proves the confession was fabricated since it states that defendant and the decedent went for "a few drinks" prior to the shooting. Jimmy Cole, who lived with defendant's mother, testified that defendant was in his mother's house at midnight on the morning of the killing. Defendant's wife testified that she and defendant went to bed between 11 and 12 on the night of August 16 and that defendant did not leave the house anytime that night. Defendant's brother Gregory testified that he and defendant went to the Harvey police station to bail out their brother John and that defendant never said he was there to turn himself in. Jerry Robinson, who had known the decedent for about six months, testified that he went to pick decedent up on the night of August 16. Robinson said he was accompanied by another friend, James Walker, who waited in the car while Robinson went to get decedent. Decedent went with the two men to a bar in Harvey. They became separated and Robinson and Walker left when they couldn't locate decedent.
Robert Beseth, a private investigator hired by defense counsel, testified that he interviewed Peggy Price at her apartment on September 25, 1979, and again on February 10, 1980. At the latter meeting Beseth was accompanied by defense counsel and Jerry Robinson. Beseth testified that Price told them that Robinson resembled defendant to the extent that the two could have been brothers and that Robinson could have been the man who picked up the decedent the night he was killed. According to Beseth, who said he did not take notes during the interviews but instead composed reports a short time thereafter, Price told him that the man who picked up Sanders remained in the hallway and that she saw the decedent leave the apartment and enter what appeared to be a blue Cadillac. This account conflicted with Price's testimony that Beseth took notes during the interview on February 10 and that he never asked her if Robinson looked like defendant or if Robinson could have been the man who picked up the decedent in the early morning of August 17, 1978. Price also denied telling Beseth that the man who picked up the decedent remained in the hallway and denied saying that the decedent left in a blue Cadillac.
Defendant testified on his own behalf and corroborated the testimony of the other defense witnesses. He stated that he never went to see the decedent on the night in question, that he went to the police station to bail his brother out of jail and not to turn himself in, and that he did not shoot Lawrence Sanders. He further testified that while in custody, he was told by Detective McCarthy to press his hands on seven sheets of paper to test if he had fired a gun within the last three days. One of these sheets was attached to a clipboard and had some writing on the top. Defendant signed this sheet at McCarthy's insistence. Defendant stated that the sheet of paper bearing his alleged confession was blank when he signed it.
During rebuttal, Detective McCarthy testified that he interviewed defendant on the morning of August 18. Also present at that time were Detective Morrison and the secretary, Phyllis Egelbrecht. Defendant asked Morrison to write out the statement. Morrison said he couldn't but would have it typed by Egelbrecht. The completed statement was read to defendant, who said it was correct and signed it. Morrison and McCarthy, who both denied using a clipboard, signed the statement as witnesses. The portion of defense counsel's cross-examination of McCarthy dealing with information he had gathered prior to the confession was limited because the trial judge ruled it went beyond the scope of the direct examination. Phyllis Egelbrecht testified and corroborated McCarthy's testimony and said there were no signatures on the bottom of the statement form when she typed it.
The case was submitted to the jury, which returned a verdict of guilty on the charge of murder. Defendant's motion for a new trial was denied, and defendant was sentenced to 25 years in prison.
Defendant's first contention on appeal is that he was denied a fair trial by the trial court's limitation of defense counsel's cross-examination of Detectives Morrison and McCarthy. This, defendant urges, prevented him from presenting his theory that the confession was manufactured by the police. Specifically, defendant endeavored to show that after interviewing Peggy Price, the police had sufficient information to fabricate the alleged confession. According to defendant's theory, the police had him place his hand on a sheet of paper for the stated purpose of testing if he had fired a gun within the last three days. This piece of paper was attached to a clipboard and had some printing on the top which was covered by the clip portion of the clipboard. Pursuant to instructions by the police, defendant signed the bottom of the paper. The police later typed a confession in the space where defendant had placed his hand. We note that defendant never mentioned the fact that the confession was typed on a form that had printing at both the top and the bottom of the sheet. The printing on the bottom of the sheet read: "I have read the above statement consisting of ____ pages and attest that it is a true and accurate account of the events which took place on ____. It was given by me freely and voluntarily, without fear of threat or promise of reward." Following this printing was space for the signatures of the person making the statement and two witnesses. During the cross-examination of Detectives Morrison and McCarthy, defense counsel attempted to elicit what they were told by Peggy Price. The State's objections during cross-examination of Morrison were sustained on the ground that such testimony was irrelevant and immaterial to the issue of voluntariness of the confession. The State's objections during cross-examination of McCarthy were sustained because the questioning went beyond the scope of the direct examination.
• 1, 2 The scope of cross-examination in a criminal case rests largely within the discretion of the trial court and its decision will not be disturbed unless there has been an abuse of discretion which has prejudiced the defendant. (People v. McElroy (1980), 81 Ill. App.3d 1067, 1072, 401 N.E.2d 1069.) Irrelevant evidence which would only serve to confuse or mislead the jury may properly be excluded without violating defendant's right to confront witnesses. (McElroy, at 1072.) However, the accused in a criminal prosecution should be given wide latitude in cross-examining State's witnesses, and the examiner should be allowed to ...