Appeal from the Circuit Court of Cook County, the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 31, 1985.
The defendants, Roger Collins and William Bracey, were indicted along with Murray Hooper for the armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, par. 10-2(a)(3)), and murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)), of Frederick Lacey, R.C. Pettigrew and Richard Holliman. Hooper was tried separately and is not a party to this appeal. Following a jury trial in the circuit court of Cook County, the defendants were found guilty of each offense. A two-stage sentencing hearing was held where the same jury found the existence of statutory aggravating factors and concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty. As a result, the trial court sentenced the defendants to death. The sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603). The trial court also imposed on each defendant concurrent 60-year prison sentences for the armed-robbery and aggravated-kidnaping convictions.
On November 12, 1980, sometime after 10 p.m., Frederick Lacey, R.C. Pettigrew and Richard Holliman were taken from apartment 206 at 2240 South State Street in Chicago, placed in a red Oldsmobile, and driven to a viaduct at Roosevelt Road and Clark Street, where they were shot to death. Police officers investigating at the scene found Lacey lying on the ground on the driver's side of the automobile. Pettigrew was lying partially under the right front bumper with pieces of rope and cloth tied around his right wrist. Three expended shotgun shells were found near his body. Holliman was discovered in the back seat, his hands bound with cloth. The record shows that Lacey had been shot in the back of the head. Pettigrew, in addition to being shot in the face, chest and leg, had four shotgun wounds in his back. Holliman had been shot three times in the chest and once in the back of the neck.
The chief prosecution witness was Morris Nellum, who admittedly took part in the crimes. To secure his testimony, the State agreed to recommend a sentence of three years in protective custody in exchange for Nellum's guilty plea to three counts of concealing a homicidal death. The State also agreed to relocate his family.
As to the events which occurred on the night of November 12, 1980, Nellum testified as follows. He was with his girlfriend, Regina Parker, at her apartment at 2222 South State Street. At approximately 9:30 p.m., Collins came to the apartment and asked him to go to apartment 206 at 2240 South State, saying he had something he wanted Nellum to take care of. Nellum went to that location, arriving approximately 10 minutes later. In one of the bedrooms he observed Collins, Bracey, Hooper, and three men he did not recognize. Two of the men, later identified as Pettigrew and Holliman, were on the bed with their hands bound. The third, later identified as Lacey, was standing at the side of the bed. Collins asked Nellum to drive his (Collins') brown Cadillac to Roosevelt Road and Clark Street because "[Collins] was going to drop some people off, leave them tied up and he wanted me to pick him up." Nellum took Collins' keys and went to the parking lot outside the building where Collins' Cadillac was parked. He observed Collins, wearing a wide-brim hat, Bracey, Hooper, and the three victims emerge from the building and walk to the red Oldsmobile. The three victims were placed in the rear seat; Collins and Hooper got in the front seat, with Collins driving. Bracey meanwhile went to his own automobile, which was parked nearby. After the two vehicles departed, Nellum waited a few minutes, as instructed, and then followed. As he approached the viaduct at Roosevelt Road and Clark Street, he heard a series of shots. Immediately thereafter, he saw Bracey, carrying a sawed-off shotgun, and Hooper run to Bracey's automobile. Collins got in his own car alongside Nellum. As they sped from the scene, Collins said: "That damn Hooper. I told him to wait until I wanted to use the shotgun because they can't trace the shotgun, but he used the gun instead." According to Nellum, the two vehicles returned to the parking lot at 2240 South State, where Bracey gave him $125 and told him "Just be cool." Nellum then drove with Collins to 31st Street and Lake Michigan, where Collins threw two handguns into the lake. Nellum identified a .38-caliber Charter Arms revolver and a .357 Rugger revolver as the weapons that were thrown in the lake.
On cross-examination Nellum testified that he did not know the reason for the killings but that he went along for "a piece of the action." He also testified that about two months after the murders Hooper told him that $1,800 had been taken from the victims. His credibility was weakened by his admission that he lies when he has to, although he stated that his testimony and statements to the police had been truthful. Yet, he admitted he lied to the police concerning the location of the two handguns. Following his arrest, Nellum denied any knowledge of the whereabouts of the weapons. Three weeks prior to trial, however, he directed the authorities to 31st Street and Lake Michigan, where the guns were recovered by divers. Nellum also testified that he decided to cooperate after prosecutors informed him they would not charge him with murder, but would instead recommend a three-year sentence in exchange for his guilty plea to three counts of concealing a homicidal death.
Under further cross-examination, Nellum denied knowing the victim Lacey and said he could not recall ever having his picture taken with him. The defendants, however, introduced into evidence a series of photographs taken in August of 1980 which showed Nellum and Lacey together with a number of other individuals.
Daretha Redmond testified that she lived in a first-floor apartment at 2240 South State. Sometime after 10 p.m. on the night of the murders, she saw a group of about five men, two of whom appeared to be tied, walk past her living room window. Approximately one month later, she was questioned by the police and shown about 40 photographs. Redmond testified she identified photographs of Collins, Nellum and Hooper as resembling men that were in the group. She further testified that the man leading the group wore a wide-brim hat and that he could have been Collins.
On cross-examination Redmond stated she had never seen Bracey before. She also stated that because she did not see the face of the man who was leading the group, she could not say for certain that she saw Collins on the night of the murders.
Laverne Lyles testified that in November 1980 she lived in a fifth-floor apartment at 2240 South State. On the evening of November 12, she went grocery shopping with two friends, returning to the parking lot of her building around 10 p.m. Lyles testified she went to her apartment to get a shopping cart for her groceries. As she walked downstairs, she saw Collins on the second-floor landing wearing a "Spanish type" hat and a long, maroon or burnt-orange leather coat. According to Lyles, Collins was on the apartment side of the stairway door and was closing the door as she approached. Lyles stated she went to her automobile and as she was unloading her groceries from the trunk, she observed three men come out of the building and walk toward the parking lot. One of the men, she said, had his hands tied and had a long handkerchief hanging from his mouth. Lyles further testified that she identified a photograph of Bracey as the man in the lead and a photograph of Pettigrew as the man with his hands bound. She could not identify the third man. She also identified a photograph of Collins wearing a wide-brim hat and said it was the same hat he was wearing when she saw him on the second-floor landing.
Christina Nowell told the jury that she first met defendant Bracey in May of 1980 at the King Midas Lounge in Chicago. In late August, Bracey came to her home, and she showed him a .38-caliber Charter Arms revolver which she kept in her bedroom. Nowell stated she went to the basement for a short time, leaving Bracey in the room alone. The following day she discovered that her gun was missing. Nowell further testified that, in early September 1980, she was at the King Midas Lounge with Bracey; that a man and woman came to their table; that the woman gave Bracey a brown paper bag containing a sawed-off shotgun; and that Bracey "broke down" the gun and gave it to William Lane, an employee of the lounge, who put the weapon behind the bar.
On November 25, 1980, she was again at the lounge with Bracey and asked him when he was going to return her revolver. Nowell testified an argument ensued during which Bracey threatened to have her "wasted." He then told her "he had murdered some people with [her gun] and threw it in the Chicago River."
The evidence also showed that on December 30, 1980, police officers conducting a search of apartment 206 at 2240 South State found two pieces of rope in a bedroom closet. An expert from the Chicago Police Department Crime Laboratory testified that one of the pieces had the same characteristics as the rope found on Pettigrew's wrist and that they "could" have come from the same length of rope. The expert admitted, however, that it was a very common type of rope, found in almost any hardware store.
A firearms expert testified regarding the tests performed on the revolvers recovered from Lake Michigan. The tests revealed that the .38-caliber Charter Arms revolver would mark a bullet with eight lands and grooves to the right while the .357 Rugger revolver would mark a bullet with five lands and grooves to the right. Bullet or bullet fragments bearing the characteristics of at least one of the weapons were found in each victim. However, because of their rusty condition, the expert could not say for certain that the guns fired the bullets taken from the victims. However, the Charter Arms revolver, by use of its serial number, was found to be the gun that had been stolen from Christina Nowell. The expert also testified that the expended shotgun shells found near Pettigrew's body were fired from the same shotgun but that no shotgun was submitted for testing.
Both defendants raised alibi defenses. In addition, they introduced testimony which suggested that Nellum, Hooper and a man named Jesse were responsible for the crimes.
Bracey's alibi consisted of the testimony of his sister, Barbara Harris. When she was asked to recount the events of November 12, the State objected and argued at a side bar that they had not been informed that Bracey would present an alibi. (Indeed, the record shows that four days earlier Bracey's attorney told the State there would no be alibi defense.) The court then called a recess to give the State an opportunity to question Harris. When she again took the stand she testified that, at approximately 6 p.m. on the day of the murders, Bracey came to her home and had dinner with her and her husband. According to Harris, her husband went to bed between 7 and 7:30, after which she and Bracey discussed a number of financial matters pertaining to his work as an artist. Bracey, she said, left her home about 11:30 p.m. Under cross-examination, Harris admitted she never told the police, State's Attorney, or anyone else in authority that Bracey was with her on the night of the murders.
Bracey, testifying in his own behalf, said he had known Nellum, Hooper and Lacey for a number of years and that he had known a man named Jesse for six or seven years. Saying he was at his sister's house until 11:30 p.m. on November 12, he denied being in apartment 206 on the night of the murders. He also denied ever being in Christina Nowell's home or stealing her revolver. According to Bracey, Hooper had Nowell's revolver. As to the November 25 conversation with Nowell regarding her gun, he testified that because he was a friend of Hooper, Nowell approached him in the King Midas Lounge and asked him to tell Hooper to return it. He testified he told her that the matter was between her and Hooper and that he "didn't have nothing to do with it." He admitted that an argument ensued and that angry words were exchanged, but denied that he threatened to have her "wasted." Supported by the testimony of William Lane, Bracey also repudiated Nowell's assertion that he received a shotgun in the lounge in September of 1980 and gave it to Lane, who put the weapon behind the bar.
In an apparent attempt to reduce the impact on the jury of his criminal record, Bracey admitted on direct examination that he had three prior convictions, one for robbery and two for armed robbery. Cross-examination revealed that the last conviction resulted from an armed robbery which he committed while an escapee from Stateville Penitentiary. Also on cross-examination, Bracey admitted that he never told the police he was at his sister's when the murders were committed, and that he did not tell them that a man named Jesse was involved in the crimes. He also denied telling the police that he was in the area of apartment 206 on the night of the murders. In rebuttal the State called two police officers who testified that, when questioned, Bracey admitted to being in the area of the apartment on the night of the murders. Bracey then again took the stand and explained that he merely replied affirmatively to the officers' question of whether he had "ever" been in the vicinity of the apartment.
Collins, also testifying in his own behalf, said he had 10 previous armed-robbery convictions. He also said he knew Nellum, Hooper, Bracey, and Lacey, having met the latter two while in prison. He further testified that on November 12 his brown Cadillac was parked behind the King Midas Lounge, where it had been for several weeks because of mechanical problems, and that he did not get the car running again until November 15 or 16. As a result, on the night of the murders he was driving his 1968 blue Chevrolet, which he had previously loaned to Sandra Johnson but which was returned to him on November 11.
Collins recounted that at approximately 3 p.m. on the day of the murders he took his girlfriend, Beatrice Mack, to a nearby clinic. They then went to the apartment of Irene Parker, Mack's mother. Later that evening Collins and Mack went grocery shopping at a nearby A&P, leaving that store between 9:30 and 10 p.m. On the way back to Parker's apartment, they stopped at 2240 South State. While Mack waited in the car, Collins went to apartment 206. According to Collins, only Nellum, Hooper, Derrick Phipps, and Ben Weathers were present. Following a brief conversation, Collins rejoined Mack, and the two returned to Parker's home. There two other individuals who were visiting Parker helped them carry the groceries upstairs, after which they all ate dinner together. Collins testified he left the apartment with Mack at approximately 1 a.m. and that they checked into a motel where they remained until the following morning.
Mack substantially corroborated the events as related by Collins. Her cross-examination revealed, however, that she had been a heroin addict for about five months prior to November 12 and that on the afternoon of the 12th, Collins took her to a clinic where she was undergoing methadone treatment. She also stated that she first dated Collins on November 9, three days before the murders, saying they went to a kung-fu movie at the United Artist Theater in Chicago. In rebuttal the State established that no kung-fu movie was playing at that theater the week of November 9.
Irene Parker, Carolyn Washington and Randolph Harper all testified they had dinner with Collins and Mack on the night of the murders. Washington and Harper also said that at approximately 10:30 p.m. they helped Collins carry groceries from his blue Chevrolet.
In an attempt to establish that his Cadillac was inoperable on the night of the murder and therefore could not have been driven by Nellum, Collins called Sandra Johnson and Earl Young to the stand. Johnson, who had known Collins for almost 10 years, told the jury she was driving Collins' blue Chevrolet in early November but that she returned the automobile to him on November 11, prior to leaving for a trip to Michigan. She stated she saw Collins' Cadillac on November 10 or 11 parked behind the King Midas Lounge and upon returning from Michigan on November 13, she again observed the Cadillac parked in the same location. Her credibility may have been weakened, however, by her admission that she had been convicted of three counts of robbery and also of misdemeanor theft. In addition, she stated on cross-examination that she was receiving public aid in Illinois, but denied that the purpose of her Michigan trip was to apply for public aid in that State. In rebuttal a Chicago police officer testified to a conversation with Johnson in which she informed him that she went to Michigan to apply for public assistance.
Young, the owner of the King Midas Lounge, testified he first noticed a brown Cadillac parked behind his establishment on November 2. Not knowing the owner, he left a note on the windshield four or five days later requesting that it be removed. Three or four days thereafter he saw a number of men, one of whom he identified as Collins, working on the automobile. According to Young, approximately one and a half to two weeks passed after he first observed the Cadillac until it was removed.
Also testifying for the defendants were Derrick Phipps and Ben Weathers. Both claimed they were in apartment 206 with Nellum and Hooper on the evening of November 12. Bracey, they said, was not present. Around 9:30 p.m., three men, accompanied by a man identified only as Jesse, arrived and went into one of the bedrooms, followed by Nellum and Hooper. Approximately 30 minutes later, Collins arrived looking for Bracey. Upon being informed that Bracey was not present, Collins left the apartment. Shortly thereafter, Phipps and Weathers departed together, presumably leaving Nellum, Hooper, Jesse and the three men in the bedroom.
The credibility of the witnesses was made vulnerable by the disclosure of their respective criminal records. Weathers admitted he received a 10- to 30-year sentence in 1975 for armed robbery. Phipps pleaded guilty in 1974 to an armed-robbery charge, and in 1976 he received concurrent sentences of 9 to 18 years for attempted murder and 6 to 18 years for armed robbery. (The record also shows although it was not brought to the attention of the jury that he was awaiting trial on two additional criminal charges when he testified.) Phipps' credibility may have been further weakened by his inability to give but the vaguest description of Jesse. Although he claimed he first met Jesse in the Stateville Penitentiary, Phipps could only say that he was about the same height and weight as the Assistant State's Attorney conducting the cross-examination. Also, after first being unable to recall what Jesse was wearing when he arrived at apartment 206, he then stated that he was wearing a wide-brim hat similar to the one worn by Collins. Finally, Phipps was unable to describe any of the men who allegedly came to the apartment with Jesse, nor could he recall where the apartment was located in the building.
The defendants first contend that the foregoing evidence was insufficient for the jury to find them guilty of the murders beyond a reasonable doubt. They argue that Nellum's testimony was unworthy of belief, given that he admitted his participation in the crimes and therefore had a motive to lie in order to escape a murder prosecution; that he was shown to have lied about knowing the victim Lacey and about the location of the handguns; that his testimony conflicted with statements of other prosecution witnesses; and that his testimony was directly contradicted by defense witnesses.
A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. (People v. Vriner (1978), 74 Ill.2d 329, 342; People v. Manion (1977), 67 Ill.2d 564, 578; People v. Bybee (1956), 9 Ill.2d 214, 221.) Although the testimony of an accomplice is viewed with suspicion (People v. Baynes (1981), 88 Ill.2d 225, 232; People v. Todaro (1958), 14 Ill.2d 594, 602), we have repeatedly held that it is sufficient to sustain a conviction if it satisfies the jury of the defendant's guilt beyond a reasonable doubt (People v. Farnsley (1973), 53 Ill.2d 537, 544-45; People v. Coleman (1971), 49 Ill.2d 565, 573; People v. Wollenberg (1967), 37 Ill.2d 480, 484-85; People v. Hansen (1963), 28 Ill.2d 322, 332-33). When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L.Ed.2d 560, 573, 99 S.Ct. 2781, 2789, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The court went on to note that, "[o]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." (Emphasis in original.) 443 U.S. 307, 319, 61 L.Ed.2d 560, 573, 99 S.Ct. 2781, 2789.
In view of these principles, we conclude that there is sufficient evidence to support the jury's verdict. Stated simply, the resolution of the defendants' guilt or innocence depended on the credibility of the witnesses and the weight given their testimony. It is well settled that these determinations are exclusively within the province of the jury. (People v. Ellis (1978), 74 Ill.2d 489, 496; People v. Manion (1977), 67 Ill.2d 564, 578; People v. Zuniga (1973), 53 Ill.2d 550, 559; People v. Soukup (1968), 41 Ill.2d 94, 97.) Similarly, it is for the jury to resolve any conflicts in the evidence. (People v. Kubat (1983), 94 Ill.2d 437, 468; People v. Vriner (1978), 74 Ill.2d 329, 342.) Here the jury was fully cognizant of the infirmities in Nellum's testimony and was instructed that his testimony was to be viewed with suspicion. Nevertheless, the jury chose to believe Nellum over the defense witnesses, and after reviewing the record, we are not prepared to say that their conclusion was unreasonable.
Defendants next contend that they were not proved guilty of armed robbery beyond a reasonable doubt. As noted earlier, Nellum testified he went along with the others for a "piece of the action" and that upon returning to the parking lot at 2240 South State following the murders, Bracey gave him $125 and told him to "Just be cool." Also, he stated that, approximately two months after the murders, Hooper informed him that $1,800 had been taken from the victims. Defendants argue that Nellum's statement regarding the $1,800 was hearsay, and citing People v. Clark (1982), 108 Ill. App.3d 1071, People v. Was (1974), 22 Ill. App.3d 859, and People v. Hines (1973), 12 Ill. App.3d 582, they assert that an essential element of a crime cannot be proved solely through hearsay evidence. Defendants' reliance on Clark and Was is misplaced. In those cases the hearsay evidence was properly excluded on appeal since appropriate objections had been raised at trial. As a result, there was insufficient evidence remaining to sustain the convictions. In Hines, however, the court stated that hearsay evidence alone cannot establish an essential element of the State's case, even if it is received without objection. Thus, despite a stipulation to the hearsay evidence by the parties, the court held that its admission constituted reversible error, reasoning that it violated the defendant's sixth amendment right of confrontation. (12 Ill. App.3d 582, 587.) In this respect the court's conclusion conflicts with this court's holding in People v. Trefonas (1956), 9 Ill.2d 92. In Trefonas, the defendant contended in part that the admission of hearsay evidence deprived him of his right of confrontation under the Illinois Constitution. After observing that the defendant failed to object to the evidence at trial, this court held:
"Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. * * *
While the accused has the right to insist that only competent evidence shall be introduced against him, yet he may waive such right and does so by failure to interpose in apt time proper objections. [Citations.] Objections to evidence may be waived even though based on constitutional grounds for the defendant may by a plea of guilty or a confession waive the production of all evidence of his guilt." (Emphasis added.) (9 Ill.2d 92, 98-99.)
Other decisions have firmly established that hearsay evidence, if admitted without objection, "is to be considered and given its natural probative effect." People v. Akis (1976), 63 Ill.2d 296, 299; Town of Cicero v. Industrial Com. (1950), 404 Ill. 487, 495; see generally Annot., 79 A.L.R.2d 890 (1961).
In the present case not only was there no objection, the hearsay was elicited by the defendants during Nellum's cross-examination. (See People v. Farnsley (1973), 53 Ill.2d 537, 545-46 (in murder prosecution defendant assisted in establishing fundamental element of State's case).) Under the circumstances, Nellum's hearsay testimony was properly considered by the jury and taken together with his other statements was sufficient to establish that the defendants had committed armed robbery.
Defendant Collins also claims that the trial court erred by failing to suppress photographs allegedly seized during an unconstitutional search. One of the photographs, showing Collins wearing a wide-brim hat in apartment 206 on another occasion, was introduced into evidence at trial.
At the hearing on the motion to suppress, defendant Collins testified that he was arrested at his second-story apartment at 534 West Marquette on February 5, 1981. He stated that at the time of his arrest the police searched his apartment without a warrant and found the pictures inside a satchel in one of the closets.
Sergeant Michael Hoke of the Chicago police department, one of the arresting officers, testified for the State. Sergeant Hoke stated that the pictures were not seized at the time of Collins' arrest, but rather were found in a garbage bag during a later visit to the apartment building. Sergeant Hoke stated that on February 22, 1981, he and his partner returned to the apartment building to interview the people who lived across the hall from Collins. Hoke testified that they first knocked on the front door of the second-floor apartment but received no answer. They then went out and around to the back of the building and went up an outside stairway to the "second floor landing" or porch. They then knocked on both doors but again received no ...