Appeal from the Circuit Court of Cook County; the Hon. J.
Arnold Welfeld, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Jones, was convicted of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4) in a jury trial and sentenced to 20 years' imprisonment. He raises the following issues for review: (1) whether the trial court erred in refusing to grant his severance motion; (2) whether his right to confrontation was violated when the trial court permitted a witness to testify as to a co-defendant's out-of-court statement; (3) whether the State's use of a co-defendant's statements imparted substantive effect to those statements in violation of the hearsay rule, thereby denying him a fair trial; (4) whether the trial court erred in admitting the victim's pretrial and in-court identification; and (5) whether he was proved guilty beyond a reasonable doubt.
Robert Jones, Booker Haynie and Willie Baylock were charged jointly with attempted murder, armed violence, armed robbery and unlawful use of a weapon (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 33A-2, 18-2(a), 24-1(a)(10)). Defendant Jones' motion to sever because of antagonistic defenses was denied and the three defendants were tried jointly.
Testimony at trial established the following.
James Ramp testified that on March 30, 1980, he lived at 1101 Winona in Oak Park, Illinois. At about 6:55 p.m., he was closing his garage door when two men ran inside the garage. One man was six feet three inches in height, slim, and wearing a bandanna over his face and an object in his hand which Ramp could not identify. The other man was about five feet seven inches or five feet eight inches in height and also wore a bandanna. Ramp could not identify the offenders. The taller of the two men took Ramp's wallet containing $9 and both men went through his pockets. Later that evening Ramp identified his stolen wallet.
Ronald Zielke, an Oak Park policeman, was working in plainclothes on March 30, 1980. At about 7 p.m., he heard a report of the robbery in Ramp's garage. He was in his car about six blocks away. When Officer Zielke was one block from the scene, he saw a "beige" Cadillac with three men in it. He followed the car into an alley where it stopped near a street light. A man with a bandanna around his neck exited the Cadillac from the passenger side. He pointed a revolver at Zielke, who was 30 or 40 feet away, and fired five or six shots, the first of which struck the windshield. Zielke sat upright during the shooting. The man got back in the Cadillac which then left. In court, Zielke identified defendant Jones as the person who shot at him. Eventually the Cadillac was found abandoned. When Zielke heard that three suspects had been arrested, he went to the Oak Park police station where he saw defendant at the rear of the squadroom. At that time Zielke realized that he had seen defendant about one or two months before in the Oak Park police station and in the Maybrook courthouse.
Don and Zoe Minnoch, brother and sister, were walking home around 7 p.m. on March 30, 1980, when they heard a series of "bangs," like firecrackers, and then saw the Cadillac speeding through an alley. Zoe saw something thrown from the car. After talking with police who had responded to Officer Zielke's call for help, the children returned with the police to the alley where the Cadillac had passed by. Don found Ramp's wallet.
Thomas Stec, an Oak Park policeman, responded to Zielke's call for assistance. When Stec saw a garbage can that was overturned about two blocks from where the Cadillac was abandoned, he searched a nearby garage where he found the three suspects. In court Stec identified Jones, Baylock and Haynie as the three suspects. A 38-caliber revolver was found in the garage about 15 feet from the defendants.
James Leahy, an evidence technician, administered gunshot residue tests to Baylock and Haynie but not to Jones because Jones had washed his hands. No residue was found on either Baylock's or Haynie's hands. Bullet fragments were removed from the back seat of Zielke's car and from under its hood. It was established that two of the fragments were fired from the revolver found in the garage. It was also established that the 1973 gold Cadillac was registered to Haynie. A fingerprint of Baylock's was lifted from a beer bottle found in the Cadillac.
Booker Haynie testified in his own defense and denied that he participated in any crime on March 30, 1980. Jones, then Baylock, drove his car that evening. Haynie fell asleep on the back seat because he was drunk. The trial judge commented outside the presence of the jury that Haynie appeared to be drunk during his testimony. Neither Jones nor Baylock testified.
On rebuttal, Officer Stec testified to a conversation he had with Haynie on March 30, 1980. According to Stec, Haynie was not intoxicated. Haynie stated that during the evening he woke up and the car was in the alley and Baylock and Jones had left. They returned and drove away at a high rate of speed. Jones said to stop the car. Jones jumped out and shortly thereafter Haynie heard some "pops." Jones got back in the car and said that he had stopped the person who had been following them. The jury was cautioned that this evidence was admissible only against Haynie. On cross-examination, Officer Stec admitted that he wrote a report of the incident in December 1980, eight months later.
At the close of trial, the jury found Haynie and Baylock not guilty, and Jones guilty of attempted murder. Defendant Jones was sentenced to 20 years and appeals his conviction.
• 1-3 The first issue raised by defendant is whether the trial court erred in refusing to grant his motion for a severance. Before trial, defendant moved to sever because of antagonistic defenses, and at trial Officer Stec testified on rebuttal as to statements made by co-defendant Haynie. Defendant argues that this testimony implicated him as the one firing the gun.
We reject defendant's contentions. Defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lee (1981), 87 Ill.2d 182, 187, 429 N.E.2d 461, 463.) In seeking a separate trial, a defendant is required to do more than simply move for severance. He must actively and specifically point out the antagonism of the defenses and so demonstrate the prejudice which will be suffered from a joint trial. (87 Ill.2d 182, 189.) The decision to grant a separate ...