APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant Willie Gaines was indicted on January 7, 1974, for the murder of Charles Polk. His first trial, in September 1977, ended in a mistrial because of a hung jury. After a second jury trial, defendant was convicted of murder and sentenced to 20-40 years imprisonment and fined $1,800. Defendant appeals, contending that (1) comments made by the prosecutor during closing argument constituted reversible error; (2) he was not proved guilty beyond a reasonable doubt; and (3) the court erred in ordering defendant to pay a fine of $1,800 to be taken from his bond money.
Michael Richardson testified that on October 15, 1973, he went to his girlfriend Patricia Bell's family's apartment with defendant, whom he referred to as "Little June." Richardson went into the bedroom to take a nap, while defendant went into the living room to have his hair braided by Bell. When Richardson awoke from his nap, he saw defendant standing in the front doorway firing a shotgun at Charles Polk. Richardson admitted that a statement which he had given police regarding an argument between defendant and the deceased, which Richardson had stated he had witnessed, was actually the result of information given him by other people.
Patricia Bell testified that on October 15, 1973, she resided with her mother Betty Hill and her sister Debra. On that date, besides her family, Michael Richardson, Henry Kimp, Charles Polk and Willie Gaines were at the apartment. She had been braiding defendant's hair. When she finished, she went into the bedroom where Richardson was taking a nap. While in the bedroom, she heard the raised voice of Charles Polk. When she came out of the bedroom, defendant was leaving through the front door. Bell testified that as defendant left, he stated, "That's all I was waiting for him to do." Ten or twenty minutes later, she went into the kitchen where she heard a knock on the back door. Bell called her sister, who opened the door to find defendant holding a shotgun. Defendant then walked through the apartment and, not seeing Polk, went to the front door. At the front door defendant found Polk, who refused to enter the apartment because of an argument he had earlier that day had with Debra Bell. Polk was talking to Henry Kimp. Defendant then shot Polk. Bell also testified that she knew a Roger Fenison and said he was like a brother. Bell had known defendant for two years prior to the incident.
The testimony of Debra Bell Brown, Patricia Bell's sister, was similar to that of her sister. Earlier in the day on October 15 she had had an argument with her boyfriend Polk. The deceased returned to the apartment a few hours after the argument and was invited in by Brown, but he refused to enter.
Henry Kimp testified that he was a friend of the deceased. During the day of the shooting, Kimp and Polk had been drinking in a vacant lot and Polk was "feeling good." Later that day they went to the apartment, where they had a few drinks on the sunporch with Betty Hill, who was intoxicated at the time. Kimp saw defendant and Polk engage in a brief shoving match just before he dozed off. He was awakened later when Polk wanted to speak to him in the hall. Kimp went into the hall where he saw Polk being shot. Prior to the incident Kimp did not know Willie Gaines. Afterward, he did not speak with police until after he had spoken with the family.
Homicide Investigator John Dahlberg, of the Chicago Police Department, testified that on October 15, 1973, he went to Patricia Bell's family home. He observed a pool of blood in the front hall and that Betty Hill had been drinking quite heavily.
Dr. Zalala stipulated that Charles Polk died of multiple gunshot wounds to the abdomen, chest and elbow. Blood samples revealed that at the time of his death Polk was intoxicated.
Vivian Gaines, defendant's mother, testified that on October 15, 1973, she saw her son at approximately 8:50 p.m. and at that time he did not have a gun.
Roger Fenison, a friend of the Bell sisters, testified that he had on numerous occasions seen a shotgun in the family's apartment.
Defendant testified that on October 15, 1973, he had been at the Bell apartment. When he arrived, Bell asked him to go out and get Michael Richardson to help her with Polk, who was intoxicated and causing trouble. When he returned with Richardson, Bell braided his hair, during which time he overheard the loud voices of Polk and Betty Hill. Betty, who was intoxicated, said she was going to shoot the first person that came to the door and, in fact, she was going to shoot through the door. At this point defendant left the apartment and went home to check on his brothers and sisters. He then went to the home of a Mrs. Smith and her son Ronald, who lived at 19th and Pulaski. He watched television there until 11 p.m. That night, while defendant was at the Smith home, a visitor came to the door and spoke to Ronald. He told Ronald that the police were looking for "Little June." No one other than the Bell family knew defendant as "Little June." Defendant left and went to visit a friend named Cindy. He stayed there until October 19, when he surrendered to police. Defendant testified that while he was imprisoned Ronald Smith and his mother moved from their home at 19th and Pulaski.
At the discovery stage, pursuant to a written discovery request filed by the State, defendant submitted the names of defendant's alibi witnesses: Mrs. Smith and her son Ronald.
In closing argument the prosecutor stated that Mr. Smith was a "phantom" and that this was the reason neither he nor his mother could be found to testify. The State argued that if the Smiths did exist the defense would have initiated some sort of investigation as to their whereabouts.
We disagree with defendant's contention that he was prejudiced by certain comments made by the prosecutor in closing argument which noted defendant's failure to call alibi witnesses. During his opening statement, defense counsel referred to defendant's expected testimony that he was at the home of a Mrs. Smith and her son Ronald at the time Polk was murdered. Defendant then testified that at the time Polk was shot he (defendant) was watching television with the Smiths at their home. During closing argument the prosecutor stated that Mr. Smith was a "phantom." Defense counsel stated in reply that ...