Appeal from the Circuit Court of Cook County, the Hon. Thomas
J. Maloney, Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Perry Cobb and Darby Williams were jointly tried by jury in the circuit court of Cook County for the armed robbery and murder of Melvin Kanter and Charles Guccion. The first and second trials ended in hung juries. At the third trial, the jury found Cobb and Williams guilty of both crimes, and they were sentenced to 30 to 60 years' imprisonment for armed robbery. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d)), the People requested a sentencing hearing for the murder convictions. The jury found that one or more aggravating factors set forth in section 9-1(b) (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b)) were present and that no mitigating factors existed sufficient to preclude the imposition of the death penalty. (See Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) The trial court sentenced the defendants to death, but stayed the sentences pending direct appeal to this court. (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d Rules 603, 606.) We reverse the defendants' convictions and remand this cause to the circuit court for a new trial.
At the third trial, Dr. Robert Stein, the medical examiner, testified that both victims died as a result of bullet wounds to the head. The key prosecution witness, Phyllis Santini, testified that on the evening and early morning of November 12 and 13, 1977, she spent approximately 10 hours driving with various individuals. At approximately 8 p.m., she met Johnny Brown, her boyfriend, at Terminal Liquors. They drove to Sheridan Liquors, where they met Earl Grant. They continued driving for several more hours. After Grant left the group, Brown and Santini met Cobb and Williams at 11:30 or 12 o'clock near the Biarritz Lounge. Santini had not previously met Williams, but had known Cobb and was aware of his criminal background and violent reputation.
Santini stated they subsequently drove back to Terminal Liquors. Cobb and Williams bought a bottle of liquor, and they continued their ride. Santini argued with Johnny Brown about their relationship. According to Santini, Brown left the group about 2:30 or 3 a.m.
Santini testified that she continued driving with Cobb and Williams. Between 4:30 and 5:30 a.m., Cobb asked Santini to "do him a favor" and told her if she cooperated he would take care of her problems. She had been complaining about having been beaten by a man with whom she had been living. She stated that Cobb told her to drive to a friend's house located on Kenmore Avenue. When they arrived, Cobb went inside but returned in a short time. He then told her to drive back to Terminal Liquors. While they drove, he talked about money. She testified that Cobb said "if he could just put his hands on a few thousand, that he could turn it over and over again, and that he would really want to get back at the Feds for what they had done to him, taking his money and his jewelry and his cars." When they approached Terminal Liquors, Santini testified that Cobb told her to park across the street from Mel's Red Hots, a diner, located on Clarendon Avenue. He instructed her to wait in the car and keep the motor running. He also told her not to worry. About 5:45 a.m., Williams and Cobb left the car and walked across the street.
Santini testified that before Cobb and Williams entered Mel's, they spoke to Earl Grant, who had just crossed Broadway from Terminal Liquors. After speaking briefly with him, Grant remained outside while Cobb and Williams entered the diner from the Broadway entrance. Santini said that when they first entered Mel's she could see their heads. After a few minutes, they disappeared from view, but within approximately 15 minutes they ran back to her car. Santini said she did not see guns, money or jewelry. Cobb told her, "Let's get the hell out of here." She said he grabbed her hair when she indicated she did not know where to go. As she drove away, she saw Earl Grant running from the scene of the crime. She testified that, on the way back to the house on Kenmore, Cobb and Williams said that the people on the street were misinformed. They had told them Mel kept a few thousand dollars at the store, but they had only found a few dollars.
Santini stated she learned for the first time the next afternoon that an armed robbery and murder had been committed at Mel's. She did not tell the police, however, until three weeks later, on December 5, 1977. She said she failed to contact the police earlier because of her fear for her life.
The other chief prosecution witness, Arthur Shields, a bartender at Terminal Liquors, testified that he entered Mel's a short time after defendants had left. He discovered the bodies of Melvin Kanter, the owner, and Charles Guccion, a customer, in the restroom. He had been at the store a few minutes earlier looking for his boss, at which time he had seen both victims alive.
Shields testified that he had seen two black men standing inside the door at Mel's about the time the crimes were committed. One was approximately 5 feet 11 inches tall, weighed approximately 170 to 175 pounds, had a thin moustache, and wore a brown coat and an orange stocking cap. The other was approximately 5 feet 7 inches tall, had a stocky build, a dark complexion, a round face, and a beard. Shields was impeached, however, by various inconsistencies in his identification testimony at the three trials. Shields also made a positive identification of the defendants at the third trial, but was impeached by his testimony from the first two trials that they resembled the men he saw, but he could not make a positive identification.
When confronted with these inconsistencies, Shields also admitted he previously stated that he had not seen the faces very well and thought all blacks looked alike in pictures. At the second trial, he admitted that he did not pay careful attention to the faces of the two men because he assumed they were regular customers. He also admitted he had only seen the men for approximately five seconds.
In their defense, Cobb and Williams sought to create a reasonable doubt of their guilt by discrediting Arthur Shields and Phyllis Santini, and implying that Phyllis Santini and Johnny Brown committed the crimes. They contended that Phyllis Santini could not be believed because she participated in the crimes. According to her testimony, she was at the scene of the crimes and drove the getaway car. They argued that, as an accomplice, she was not a credible witness. Similarly, defendants argued, Arthur Shields was also not a credible witness, since he only saw the assailants for five seconds and yet claimed his recollection of their features improved with successive trials.
When arrested, Cobb was in possession of some items which had been taken from the victims. Cobb testified that Brown had sold the stolen watch and jewelry to him after the murders were committed.
Two witnesses, Charles Bonner and his brother, Robert Bonner, testified that they were with defendant, Darby Williams, and others in Terminal Liquors on the evening following the murders. When two police officers came into the bar, Arthur Shields, the bartender, told the police that Williams was a regular customer and was not the individual he had earlier seen in Mel's. Additionally, Charles Bonner testified that Johnny Brown was a notorious drug dealer and pimp who frequently attempted to sell stolen jewelry to support his drug habit. According to Bonner, Brown frequently associated with a tall friend who often wore an orange hat.
The defendants made offers of proof concerning inculpatory statements made by Phyllis Santini after the crimes were committed. The defendants offered to prove that Patricia Usmani would testify that, in June of 1978, she had a conversation with Phyllis Santini and Susan Darks in Santini's car. Santini admitted that she participated in the robbery of the restaurant, along with Johnny Brown and two other individuals whom she did not name. She also acknowledged that all four of them were inside the restaurant and that Brown had shot the two men. After the robbery, Brown sold Perry Cobb the watch and ring taken from Melvin Kanter but kept the gold necklace. After hearing the offer of proof, the trial court refused to allow Usmani to testify because a proper foundation had not been laid to impeach Santini by a prior inconsistent statement.
The defendants also sought to call Carol Griffin, a school truant officer. The defense represented that Griffin would testify that Santini told her that she expected to receive a reward in exchange for her testimony. The defense had earlier attempted to lay a foundation for Griffin's testimony by asking Santini, on cross-examination, whether she knew Carol Griffin and whether she had told Griffin that she expected a reward for testifying. In ruling that Griffin could not testify as to this statement, the court ruled that the defense had not set a time or place of the alleged conversation. We will discuss further the offers of proof and the court's rulings as to Usmani and Griffin later in this opinion.
At the conclusion of the third trial, the defendants requested an accomplice instruction. The trial court refused to give the instruction, reasoning that Santini testified she was not "fully aware" that Cobb and Williams committed the crimes until the following day. This is not the test of whether an accomplice instruction should have been given. In People v. Robinson (1974), 59 Ill.2d ...