Appeal from the Circuit Court of Cook County; the Hon. Richard
J. Petrarca, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a joint jury trial, defendants, Bennie Cunningham, Milam Martin, and Kevin Wallace, were convicted of murder, attempted murder and attempted armed robbery. After a finding by the trial court that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, Wallace and Cunningham were sentenced to extended terms of 70 years for murder as well as terms of 30 years for attempted murder and 15 years for attempted robbery, to be served concurrently; Martin was sentenced to concurrent extended terms of 70 years for murder and 35 years for attempted murder, with a 15-year sentence for attempted armed robbery, to be served consecutively to the other two sentences.
On appeal, Cunningham contends that (1) the trial court erred (a) in refusing to suppress the lineup identification which resulted from his illegal arrest, and (b) in refusing to admit the third-party confession of Vincent Yokum; (2) he was denied a fair trial because of improper prosecutorial conduct in attempting to discredit a defense witness; and (3) the imposition of an extended sentence for the murder was improper. Defendants Wallace and Martin make the same contentions, with the exception of the identification issue, and they also maintain that (1) the trial court erred in refusing to order Vincent Yokum to appear in court in order to be identified as the actual perpetrator of the crime; and (2) they were denied a fair trial as a result of improper comments made by the prosecutor during rebuttal closing argument.
It appears that a shooting occurred on March 12, 1981, when three men attempted to hold up Tina's food and liquor store operated by the Matariyeh family. The three surviving members of the family testified that Mr. and Mrs. Matariyeh (Kahlil and Suhalia) and two employees Hudson and Farris (the latter also called Faddis and Ferris) had just left the store, and their sons (Nabil and Suleiman) were locking the store when three men with drawn guns announced a holdup. The three men and Kahlil then engaged in a gun battle, during which Suhalia was killed and Kahlil received serious shotgun wounds which left him with a 50% disability of the left forearm and hand; it was later determined that a bullet from Kahlil's gun had killed Suhalia. None of the Matariyehs had seen any of the gunmen before the occurrence, but the three who survived identified defendants as the gunmen from photographs and, while Kahlil was still in the hospital, Nabil and Suleiman also identified Cunningham in a lineup, and later all three Matariyehs identified Martin in another lineup.
Suleiman also testified that when the three men drew their guns, he saw Michael Hudson one of their employees duck behind a car and that the men then began shooting at Kahlil and Suleiman. When Kahlil pulled out a gun and began to return the fire, the three men fled. Suleiman told the police that the man with the shotgun was six feet tall and that the other two men, who carried handguns, were approximately five feet seven inches and five feet five inches tall. He also testified that Michael Hudson had asked for and received all of his pay on the day of the robbery, even though it was not a normal payday; that Hudson never returned to work after that day; and that, while the police brought Faddis their other employee to one of the lineups, Faddis would not accompany him to make other photographic and lineup identifications. On cross-examination, Suleiman stated that he looked directly at the man later identified as Cunningham who shot at him from a distance of about eight feet.
Nabil (Suleiman's brother) also testified that Michael Hudson hid behind the car as soon as the defendants announced the holdup. He also identified defendant Cunningham as the individual who had turned to shoot at Suleiman, and stated that Kahlil pulled his gun only after the defendants began firing. He denied telling the police on the night of the shooting that his father drew his gun as soon as the defendants announced the holdup. Although Nabil also originally estimated that the difference in height between the two shorter defendants (Cunningham and Wallace) was about three inches, he admitted that when they stood next to each other they appeared to be about the same height.
Kahlil gave additional testimony that he and Suhalia were waiting in front of his car while his sons closed the store when the three men pulled their guns, shouted "Holdup" and began shooting. Kahlil pulled out his gun to shoot at them, and in the ensuing battle he was shot in the left forearm, the left foot, and on the left side of his abdomen. He subsequently identified Cunningham as the man with a handgun who had turned to fire at Suleiman, and said that he believed Martin the man with the shotgun was the one who announced the holdup.
Detective Frank Laverty testified that after interviewing people in the area of the store, he began looking for three individuals known as Fruitloops, Shalom and Daddy Stone. He learned later that Shalom was Milam Martin, and Fruitloops was Kevin Wallace. After obtaining these names, he interviewed Michael Hudson, but he said that Hudson never viewed any photo spreads or lineups and that he (Laverty) did not recall Wallace having crutches when arrested on March 21.
The principal witness for the defense was Michael Hudson, who testified that he had been working at the store for five years at the time of the shooting, which he said started after Kahlil drew his gun. When the shooting began, he ducked out of the way and ran across the street, as did Nabil and Suleiman, and no one shot at Suleiman. Hudson also testified that he did not know him but had previously seen the tallest of the three gunmen hanging around on the street corner drinking wine; that Kevin Wallace, whom he had known for three or four months, was not one of the three gunman; that the police told him not to testify for Wallace; that he had never refused to talk to the State's Attorney; and that he had not been asked to attend a lineup. Hudson also testified that he told the police on the night of the shooting that he recognized the tallest man with the shotgun; that he had seen that man inside the courtroom at one point during the trial; that he was a good friend of Wallace's brother; and that he had seen Wallace on the street with his crutches a few days before the robbery. He further stated that Detective Laverty wanted him to cooperate with the police in solving the crime, but denied telling the police that he would not talk to them anymore and would not cooperate after the police indicated that Cunningham was involved. He stated that the actual reason for his failure to cooperate was that the police were following him, harassing him, and threatening to throw him in jail if they found out that Hudson had had anything to do with the crime. He further stated that he did not remember saying to the police that he was afraid of gang retaliation if he identified someone in this case; that after the discussion with Detective Laverty, in which the Cunningham name was mentioned, he was contacted by the attorney who represented Cunningham and Martin; that he eventually signed a statement prepared by the attorney; and that he testified that the tall person involved in the shooting was the same person he had seen earlier in the courtroom. Hudson denied telling the State's Attorney that he could not identify anyone.
Bernard Merritt testified that he had lived in the area of the shooting for 12 years and that, although he knew Bennie Cunningham was from the neighborhood, he did not know Kevin Wallace, Milam Martin, or Vincent Love (Yokum). He testified that he was about 80 feet from the store during the shooting and that none of the defendants were involved. He did, however, state that the shortest person of the three gunmen was Floyd Murray, a "gang banger" who was also known as "Main." He admitted knowing Bennie Cunningham by sight for approximately a year, but he did not know Bennie had been arrested for the shooting until he was contacted by Bennie's attorney in July, 1982. He did not wait for the police to arrive at the shooting scene, nor did he go to the police with the information about Floyd Murray. He was not subpoenaed to testify, but he lived across the street from the Cunningham family, and after speaking to Cunningham's attorney he decided to testify voluntarily in order to "see justice done."
Detective Basile testified for the defense that he was told by Nabil and Suleiman that the shooting began after Kahlil reached for his gun, and that Michael Hudson not only answered his questions on the night of the shooting but also gave him his address and telephone number and stayed around to look at photographs.
Herman Cunningham (Bennie Cunningham's uncle) testified that Bennie arrived at his automobile repair shop around 3:30 p.m. on the day of the robbery and that he and Bennie worked on the latter's car until about 9:30 that evening. Neither of them left the shop during that time but sent one of his employees for food. After he closed the shop, he dropped Bennie at his mother's house on the south side around 11 or 11:30 p.m. He admitted that although he learned of Bennie's arrest shortly after it occurred, he did not go to the police or tell anyone else that Bennie had been working at his shop on the night of the murder. He was eventually contacted by Bennie's attorney and asked to testify.
Willie Tipton (Kevin Wallace's grandmother) testified that Kevin lived with her and that she had picked him up at South Shore Hospital on March 6, 1981, where he had been treated for a gunshot wound in the leg received on March 2, 1981. He left the hospital with a cast on his leg from below his knee to his toes and was given crutches to use. On March 12, he was still limping and using his crutches. The cast was taken off on March 20, the day before he was arrested, and when he left with the police he took one of the crutches with him. She never saw Kevin Wallace with either Bennie Cunningham or Milam Martin and, although all three defendants lived in the same area, she said that they never associated with each other.
Dr. Richard Egwele stated that he treated Kevin Wallace on March 2, 1981, for a comminuted gunshot fracture of the right fibula. He told him to use crutches to keep the weight off his leg and gave him a plaster posterior splint which is held in position by an Ace bandage. He also said that the fracture would definitely not have been fully healed on March 12, but that the fibula does little in the way of support, so that he could definitely have put weight on the leg at that time and could also have removed the bandage and the splint.
In rebuttal, Paula DaLeo, an assistant State's Attorney, testified that when Kevin Wallace was arrested on March 21, 1981, he was not wearing a leg splint or using crutches and he did not indicate that he was having pain.
Thomas Gainer, an assistant State's Attorney, testified in rebuttal that in February 1982, Michael Hudson told him that he would not identify anyone in this case and did not want to play any part therein; that he left his job at Tina's and moved to the west side because he was afraid of the gang activity in the neighborhood; and that he knew all three defendants from the neighborhood.
Detective Laverty testified in rebuttal that on the day after the shooting, when he asked Hudson whether he knew some El Rukns named Fruitloops and Jerry Cunningham, Hudson immediately asked how he had obtained Jerry Cunningham's name and then said that he would not cooperate in any way whatsoever. Laverty also said that this conversation with Hudson took place before any of the three defendants were in custody; that he never told Hudson not to testify in court, nor did any other Chicago police officers to ...