Appeal from the Circuit Court of Cook County; the Hon. Leonard
R. Grazian, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of murder and concealment of a homicidal death and sentenced to concurrent terms of 65 and 10 years. On appeal, he contends that (1) his sixth amendment right to cross-examine and impeach the State's key witness was erroneously limited; (2) restriction of his attempts to rehabilitate his sole witness constituted reversible error; (3) he was denied a fair trial as a result of the prosecutor's inflammatory comments in closing argument; and (4) the imposition of extended terms was improper.
At trial, Officer Barker testified that on October 21, 1981, during a neighborhood search for a missing child, he found the body of 13-month-old Steven Jones inside a green plastic trash bag in a garbage can. Laboratory tests run on the bag in which the body was found produced no identifiable fingerprints.
Dr. Robert J. Stein, who performed an autopsy, described various bruises, abrasions, and contusions to the head, face, and neck, but stated that there was no sign of significant external bleeding. He concluded that the cause of death was ligature strangulation in association with subdural hematoma. The witness stated that it was unlikely that any of the injuries could have been caused by an object, such as an iron, falling from a distance of five feet.
Steven Smith, the baby's father, testified that when he last had the child for a visit, October 11, 1981, he noticed a bruise on the infant's back. When shown photographs of the dead child, Smith stated that he had seen none of the injuries shown in them at the time of the baby's last visit with him.
Dorothy Jones, the baby's grandmother, who lived down the hallway from her daughter and defendant, testified that on October 20, 1981, she babysat for Steven in her apartment until 5:30 p.m., when her son Thomas took Steven back to defendant's apartment. She observed no indication of injury to the baby that day. On cross-examination, she stated that defendant treated her, Aleisa and the baby with respect and that she never saw nor heard of him mistreating the child.
Thomas Jones, the 15-year-old uncle of Steven, testified that he took the baby back to defendant's apartment at approximately 5:30 p.m. and that, as he was leaving, he heard defendant tell the baby, who was crying, to "shut up and lay down."
Roxanna Hoskins testified that she had spent the afternoon at defendant's apartment where she, Aleisa, defendant, and Willie Green drank beer and vodka and smoked marijuana. She and Aleisa had also taken sleeping pills, and when she left at 5:45 p.m., Aleisa was sleeping on the couch. At approximately 6:30 p.m., Roxanne returned to defendant's apartment but received no response to her knocking. On cross-examination, she stated that she had not heard defendant tell the baby to shut up.
Aleisa Jones (Aleisa), Steven's mother, corroborated the testimony of Roxanna Hoskins concerning the events of that afternoon and also stated that sometime after she fell asleep, defendant woke her to tell her the baby was back. She saw the infant lying on some pillows on the floor next to the couch. She did not hear him or see him move. Still later, defendant woke her a second time and told her that Steven had pulled an iron down from the cabinet onto his head but was "okay" and that he (defendant) had put a cold towel on the bump. Aleisa saw the baby lying in the same position as he had been in the first time she woke up; he was neither moving nor crying. Defendant awakened her a third time and asked whether she had taken the baby to her mother's house. Aleisa got up, and when she couldn't find the child she called the police.
On cross-examination, Aleisa stated that defendant had treated her and the baby well, had never abused either of them, and had only slapped the child once, on his hands, as a disciplinary action. She also stated that earlier in the afternoon, she had seen defendant and Willie Green fighting in front of the building and that once inside the apartment, they continued to argue but did not exchange blows. After telling them to "take it outside," Willie left and she did not see him again until after the police arrived later that night.
Willie Green (Willie), defendant's brother, testified for the State that he lived in the same building as defendant and that after Aleisa told them to take their argument outside, he returned to his apartment where he stayed until about 6:45 p.m. At that time, defendant came to his door and told him to come downstairs to smoke some "reefers." When he arrived there, defendant opened the door and "passed me a plastic bag, garbage bag, and he said to take the bag to the garbage, not in the back of the building, away from the building on the other side." The bag was green plastic and tied into a knot. Defendant did not tell him what was inside, and as he went down the front stairs, he met Maybell Stewart, with whom he conversed for two or three minutes. He then took the bag and set it in a can approximately 30 feet down the alley. On his return, as he approached defendant's apartment, he saw the door closed and when he heard a loud argument inside he returned to his own apartment. A few hours later, Aleisa's brother Thomas told him that the baby was missing and that the police were there. Willie went downstairs to defendant's apartment, and when he asked him, "What was in the bag?" defendant responded, "The baby. Shush, don't say nothin'." On two prior occasions, Willie had seen defendant mistreat the baby. Once, defendant threw the baby to the floor, saying "Shut up you mother- ____." The other time, defendant kicked the baby in the head, saying "I hate this mother- ____. He looks just like his damn daddy."
On cross-examination, Willie denied that he disliked his brother and stated that he loved him despite the fact that they argued and fought often. On October 20, 1981, he and defendant had fought because he (Willie) told their sister about defendant abusing Steven.
Willie also testified that while the police were at defendant's apartment that night, he did not tell them defendant had given him a bag to put in the garbage or that defendant later told him what was inside the bag. The following day he was arrested, taken to a police station, and told he was a suspect in this case. Although he denied being told that he could be charged with murder or that he was worried about being so charged, he was impeached by his preliminary hearing testimony to the contrary. Defense counsel also attempted to question Willie as to whether he was actually charged with murder and whether he was booked and fingerprinted prior to making the statement which implicated his brother, but the court sustained the State's objections to this line of questioning on the grounds that there was no indictment or information against Willie. He then admitted that he was handcuffed to a wall for six hours, questioned at least three different times by two teams of detectives, transported to three different police stations, and that after taking a lie detector test the police told him he was hiding something and placed him in a lockup. The next morning, he summoned detectives and gave a written statement in which he told them that defendant had given him the bag and later told him the baby was inside the bag.
Willie could not recall the days or dates of the two incidents when he had seen defendant abuse the baby and admitted that no one else had been present. When defense counsel attempted to question Willie as to whether he mentioned both incidents in his statement, the court sustained an objection on the basis that it was not proper impeachment by omission since the written statement was in question and answer form and the witness could not be impeached by something which had not been asked of him.
On redirect examination, Willie testified that he was never charged with murder in this case but that, while in custody, he was worried about being charged with concealing information, and that the reason he withheld information was to protect his brother.
The State's final witness was Maybell Stewart, who testified that shortly after 7 p.m. on October 20, 1981, she met Willie Green on the front stairs of his apartment building where she talked with him for a few minutes. He was carrying a closed, green plastic trash bag and seemed his ...