Appeal by the Circuit Court of Cook County; the Hon. Robert L.
Massey, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 5, 1983.
Defendant Joseph J. Kosik was convicted of armed violence and aggravated battery after a jury trial. He was sentenced to a term of six years for the armed violence conviction. He appeals, contending (1) identification testimony should have been suppressed because of a suggestive in-court identification during the preliminary hearing; (2) identification testimony at trial was insufficient as a matter of law; (3) the State's theory of accountability was not proved beyond a reasonable doubt; (4) he was denied due process of law by the State's suppression of information within its possession; (5) testimony of the investigating officer was improper hearsay testimony used to bolster a weak identification of defendant; and (6) the conviction and sentence based on the charge of armed violence must be vacated.
On July 22, 1979, four men were standing on the northwest corner of Division Street and Cicero Avenue in Chicago at about 1 a.m. A dark colored car made a left-hand turn onto Division Street from the northbound lane of Cicero Avenue. Shots were fired from the passenger side of the car. As a result of the shooting, Saul James, Jr., was paralyzed below the waist.
The key witness for the State during the trial was Charles Lemon. He was one of the men standing on the corner at the time of the shooting. He is also the victim's cousin. Lemon testified that he observed a black Buick Century, with two people in it, pass through the intersection. He also observed that there was a little flower, or flowers, hanging from the rear view mirror. He heard shots fired and fell to the ground. He saw the license plate on the car as it traveled westbound on Division Street. It had the letters "JJK" and the first number was a "2." There were six to eight shots fired. Lemon testified that the incident did not last a long time, alternately saying six to seven seconds or 10 to 15 seconds.
Lemon testified that, after leaving the hospital where his cousin was taken, he went back to the scene of the shooting to look for the car from which the shots were fired. In his own car he traveled west to Central Avenue and then drove back to Cicero Avenue on the next street. He traveled back and forth between Cicero and Central Avenues until he reached St. Paul Street. On this street he found the car he was looking for near the intersection of St. Paul Street and Cicero Avenue. He felt the car's hood and engine. Both were hot. He observed the car from a short distance until he saw somebody come out of a nearby house. Lemon recognized this individual as the driver of the car at the shooting incident. He also stated that the person he saw was the defendant. Later in the day, he again observed defendant come out of the same house. After he followed him around the block, Lemon testified, he saw defendant talking with another person he identified as the passenger who fired the shots.
During his testimony Lemon said that he identified a photograph of defendant from an array of seven or eight photographs shown to him by Chicago Police Officer Mook. In that photograph defendant looked the same as he did on July 22, 1979. Lemon also identified photographs of defendant's car and the license plate from that car. On cross-examination, Lemon admitted that he failed to identify defendant at a lineup.
The victim, Saul James, Jr., also testified at trial that he saw a black Buick Century in the turn lane on Cicero Avenue. He stated that the car turned slowly and shots were fired from the front seat of the car. He also remembered that the license plate started with "JJK" because his last name starts with a "J." James stated that he viewed both occupants of the car at the time of the shooting. He had a profile view of the right side of the driver. He described defendant as having curly long hair, with a beard. He indicated he saw defendant the first time he had gone to court in this matter. At that time defendant had shaved. James made an in-court identification of defendant as the driver of the car.
On cross-examination, James stated there were two lines of fire. He gave his first description to the police after his second operation, over 2 1/2 weeks after the incident. He never told the police about the two lines of gunfire. James also stated that the car was stopped for five to 10 minutes at the most. There were at least six shots fired before the car stopped. He stated he could only make a tentative identification of defendant when he was shown an array of photographs by the police.
James Boyking and Lee Dean were the other two men at the intersection during the incident. Boyking stated that the car was a two-door hardtop and it could have been black. He could not make an identification of anyone in the car, other than the fact the two occupants were white males. He estimated the incident took "about a second." He never saw the car stop. He stated that about four to six shots were fired in rapid succession.
Lee Dean testified that he fell to the ground when he heard one or two shots. He said the shots were fired until the gun was empty and the clicks of the empty gun chamber could be heard. As the car completed its turn, he noticed the brake lights go on and then off quickly. He described the car as a black or dark blue Regal or Century. It was a two-door car with opera side windows.
During cross-examination, Dean stated that the car never appeared to stop. He testified that the whole incident, from the time he first saw the car until it left his sight, took one to two minutes, perhaps less. He also stated that he was visited by a police investigator about two weeks after the incident. He was shown some photographs of cars and he identified one as looking like the car he saw the night of the incident. Dean said the investigator wrote down what he had to say.
Detective Edmund Mook was the Chicago police officer who investigated the shooting incident. He said he talked to Saul James four to six days after the incident in the hospital. He testified to what James told him. James described two white males in the car from which two shots were fired. The driver was described as being in his twenties, with dark hair and a moustache. The car was described by James as being dark colored, dark green, black or dark blue. It was a 1975 or 1976 model Buick Century with opera windows. Detective Mook testified that James remembered two letters from the license plate, "JJ."
Detective Mook stated he talked to Lemon relative to the incident on August 4 or 5. Lemon gave him the license plate number "JJK 235" as belonging to the car at the incident. Mook found this number was registered to defendant at an address on St. Paul Street. Mook talked with defendant at Area 5 headquarters on August 25, 1979. At that time, he had a picture of defendant taken. Defendant was asked to come back on August 27. Mook stated that defendant did not come back on that date.
Mook identified defendant in court as the person he had a picture taken of in Area 5 headquarters. He stated that defendant looked different at trial, having shaved a moustache and cutting his hair shorter. Mook then testified that he showed a series of photographs to Lemon. Out of these photographs, which were marked as exhibits for the State, Mook stated Lemon identified a photograph of defendant. Mook further stated, though, that ...