Appeal from the Circuit Court of Cook County; the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 JUSTICE MCGLOON HEARD THE ORAL ARGUMENT IN THIS CASE, AND FOLLOWING HIS RETIREMENT, JUDGE BUCKLEY WAS SUBSTITUTED, LISTENED TO THE TAPES OF THE ORAL ARGUMENT AND READ THE BRIEFS AND RECORD, AND CONCURS IN THE OPINION.
After a jury trial, defendant, James Williams, was found guilty of murder and sentenced to 30 years' imprisonment. Defendant appeals, contending that (1) the trial court erred in denying defendant's motion to dismiss; (2) evidence of police conduct should have been presented to the jury; (3) the pretrial identifications of defendant should have been suppressed since he was arrested without probable cause; (4) he was unfairly surprised and prejudiced by the disclosure of the pretrial identifications; (5) improper evidentiary rulings by the trial court require reversal; (6) he was prejudiced by the comments of the prosecutors during the course of the trial; and (7) he was not proved guilty beyond a reasonable doubt.
On June 29, 1982, at approximately 7 p.m., the victim, Robert Love, was shot and killed in Brian's Lounge, a tavern located in Chicago. At the time of the shooting, there were approximately 20 people in the tavern, including a number of regular patrons.
At trial, Isadore Glover, the brother of the victim testified that on the afternoon of the day of the incident he and his brother were sitting on the front porch of their house. The defendant, known to Glover as "Bill," approached the porch and began arguing with the victim concerning a $10 debt the defendant owed the victim. The defendant was with a second man who was carrying a folding chair. The defendant punched the victim in the right side of his face and defendant reached for the folding chair. Glover, who was on crutches at the time, tossed his brother a crutch. At that point the defendant ran down the street, saying, "I will see you later." Glover and his brother returned to the porch, where they sat for about 45 minutes. The victim then left for Brian's Lounge. Glover stated that later that day he received a phone call he interpreted to be a threat on his brother's life.
Glover further testified that the morning following the shooting he had a conversation with a woman named "Pussycat," who stated that she was present at the time of the shooting and that the person who shot Robert Love was the defendant. The defendant was also known to her as "Bill." "Pussycat" further told Glover that she was familiar with defendant's family and because she was afraid she did not want Glover to reveal their conversation. Following this conversation, Glover met with the police and identified a photograph of defendant as the man who had been arguing with his brother. At a later date, Glover made an in-person identification of defendant as the man who had been arguing with his brother.
Emma Ginns testified that her nickname was "Pussycat" and that she had been at Brian's Lounge at the time of the incident and that she had a conversation with Isadore Glover the following morning. She stated that she told Glover that his brother had been shot but denied telling Glover that "Bill" had shot his brother.
Charles Clemons testified that he had been a regular at the tavern and was present on the day of the incident. He participated in a card game at the tavern and noted that the victim was getting ready to sit down at the card game. When the gunfire began, Clemons dropped to the floor. When he stood up, the gunman left and the victim was lying on the floor. He further testified that he viewed a lineup that consisted of five people. On the day of the lineup he could not positively identify the defendant as the killer but stated in court that the defendant was one of the people in the lineup.
Andrew Tucker testified that he was also at the bar on the day of the incident. He stated that upon arriving he entered a card game with Charles Clemons and others. The victim was standing behind the table awaiting his turn to sit down at the card game. Tucker was about to leave the table and had just bent over at the waist to pick his jacket up off the floor. While bent over he heard a shot. Before he could stand up, Tucker was grabbed around the neck from behind by the victim. As he tried to stand up he was brought face to face with the gunman who stood approximately six to eight feet away. As Tucker struggled to get loose from the grasp of the victim, several more shots were fired. As the victim's hold on Tucker weakened, Tucker fell face first to the floor. Tucker remained face down on the floor until the shooting stopped and then he ran out of the bar. Tucker identified defendant in police photos as well as in a lineup as the gunman. He further testified that he had attended grammar school with defendant and, as a result, he recognized defendant at the time of the shooting.
Prior to trial, a hearing was held on defendant's motion to quash the arrest and suppress the identifications of defendant. At the hearing, Margaret Russell, Emma Ginns and Carl Beasley, regulars who had been in the tavern at the time of the shooting, testified. Ginns and Russell stated that they were questioned and intimidated by the police and that they were released only upon identifying defendant as the perpetrator. Ginns and Russell asserted that the police withheld bathroom and telephone privileges from them, they refused to feed them and they physically threatened them. In addition, Russell testified that she heard Carl Beasley "getting whipped" and Ginns stated that she saw a police officer kick Beasley in the groin area. Beasley testified that he was questioned by the police for a 24-hour period and that he denied seeing anyone shoot Robert Love.
• 1 Initially, defendant contends that the trial court erred in denying his motion to dismiss the information. Defendant's motion alleged that misconduct by both the police and the prosecutor denied him a fair trial. Defendant contends that the police coerced Margaret Russell, Emma Ginns and Carl Beasley into positively identifying the defendant after imprisoning and torturing witnesses over a two-day period. Further, defendant argues that the police mistreatment suffered by these three witnesses subsequently influenced other witnesses to testify for the State.
A trial court had the authority to dismiss an information upon statutory grounds or a clear denial of due process. (Ill. Rev. Stat. 1983, ch. 38, par. 114-1; People v. Lawson (1977), 67 Ill.2d 449, 367 N.E.2d 1244; People v. Rivera (1979), 72 Ill. App.3d 1027, 390 N.E.2d 1259.) In Rivera, two witnesses alleged that police officers coerced them into testifying against the accused at a grand jury hearing. The court was fully aware of the accused's claim since the allegations of police misconduct were made at a hearing to quash the arrest and suppress the identification of the accused. The coercion was denied by the police officers. The court held that the accused failed to establish the due process violation with certainty and refused to dismiss the indictment. 72 Ill. App.3d 1027, 1038, 390 N.E.2d 1259.
Similarly, in the instant case, the allegations of police misconduct were made at the hearing on defendant's motion to quash the arrest and suppress the identification of the defendant. The alleged coercion was completely denied by the police officers. The trial court heard the witness' testimony and denied the motion due to insufficient grounds to support and authenticate defendant's allegations. We find that there was no abuse of discretion on the part of the trial court since any due process violation was not established with certainty. People v. Rivera (1979), 72 Ill. App.3d 1027, 390 N.E.2d 1259.
• 2 Defendant further claims that the State delayed in granting a preliminary hearing to defendant for a period of 21 days in order to create a case against him. A preliminary hearing should be performed with reasonable promptness as determined by the facts and circumstances of the case. (People v. Jackson (1961), 23 Ill.2d 274, 178 N.E.2d 299.) The defendant here was arrested on July 1, 1982, and a preliminary hearing was scheduled for July 6, 1982. On the State's motion the hearing was twice continued until July 21, 1982. The record does not indicate that defendant at any time objected to the continuances. We do not find the delay so unreasonable as to constitute error especially where defendant claimed no prejudice.
• 3 Defendant next contends that the trial court erred by excluding evidence of police misconduct at trial. Defendant argues that his rights were violated when the trial court precluded him from presenting evidence of police intimidation of Russell, Ginns and Beasley which resulted in their identification of defendant. Defendant further contends that the identifications made by Andrew Tucker and Isadore Glover and the testimony of Charles Clemons were the result of the police coercion of Ginns, Russell and Beasley. The trial court excluded the evidence of police misconduct since the identifications of defendant made by Ginns and Russell were not going to be introduced by the State at trial. The court stated that there appeared to be an ...