Appeal from the Circuit Court of Winnebago County; the Hon.
David F. Smith, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1986.
The defendants, Vinson (Rollo) Banks and Dexter (Lydell) Richardson, were charged by information in Winnebago County with two counts of murder in the August 4, 1983, death of Freddy Peterson. A third defendant also charged with the murder, Reginald (Scooter) Howard, was tried and convicted separately. The defendants here were jointly tried and convicted by a jury, and were separately sentenced to 20 years in the Illinois Department of Corrections. Their appeals were consolidated by this court.
The State's theory was that these defendants held Freddy Peterson's arms while Scooter Howard delivered the fatal stab wound. Defendants challenge the sufficiency of the evidence where the State's sole occurrence witness, 16-year-old Jackie Hill, was impeached by her subsequent written and oral statements exculpating the defendants. They further contend they were deprived of a fair trial by improper comments made by the prosecutor during rebuttal argument which shifted the jury's attention from Jackie Hill's credibility to unsubstantiated allegations of illegal activity by defense counsel.
At trial, the State's key witness, Jackie Hill, testified concerning the events of August 3, 1983. She and her brother, Jeff Hill, saw Freddy Peterson during the afternoon. Freddy was the brother of Steve Peterson, Jackie's boyfriend. Freddy stopped on the street, and the three of them talked, and Jackie's aunt, Turina Cochran, joined them. Although she was Jackie's aunt, Turina was almost the same age as Jackie. Jeff left the group to go to Mary Neiber's house. At the time in question, Mary Neiber was Vinson Banks' girl friend. Freddy, Jackie, and Turina went driving around for a while and then went to Freddy's house, where they joined up with Steve Peterson.
The foursome listened to some music, then Jackie and Turina went out with Freddy and he bought some liquor. They drove around some more and went back to Freddy's house. In addition to Steve, Freddy's mother and little brother were there also. While the others drank rum, Jackie had a soda pop. About 11:30 p.m., Freddy, Jackie and Turina walked to Mary Neiber's house. About 15 minutes later, Scooter Howard, Turina's boyfriend, arrived. He was riding a dirt bike. When Freddy, Jackie, Turina and Scooter were on the porch, Turina introduced Scooter to Freddy as her boyfriend. The two men greeted each other, and Freddy began descending the porch steps, asking Jackie if he could use the phone at her house. On the way down, Freddy took a knife out of his back pocket, slashed the back tire of Scooter's dirt bike, and said, "Everything's cool." Scooter responded, "Yeah, man, everything's cool." Freddy then began talking about a gang called the Black Gangster Disciples, and he and Jackie started walking away toward her house.
Just about that time, the defendants here, Rollo and Lydell, drove up in front of Mary's house. As noted, Rollo, who was driving the car, was Mary's boyfriend at that time. When Scooter saw the two men driveup, he said something "smart" to Freddy, and Freddy walked back toward the porch. Jackie knew Rollo and Lydell and considered them friends. Scooter went to meet Rollo and Lydell by the curb; Freddy was standing on the porch steps. She heard Scooter saying to Rollo and Lydell, "We was gonna kick this punk's ass." Lydell asked Scooter what happened, and Scooter told them about the slashed tire. Lydell said, "Man, you want to kick his ass." Jackie testified she told them to leave Freddy alone because he was drunk, but that Lydell said, "No, we gonna kick this punk's ass."
The three men approached Freddy, Scooter took the knife out of Freddy's pocket, and he began poking the opened knife at Freddy. Freddy jumped off the steps, removed a belt that he had worn around his neck, and began moving around, swinging the belt at Scooter.
Jackie testified she was telling Scooter and the defendants to leave Freddy alone, saying not to fight with the knife, but to have a fist fight only. She tried to grab Freddy but he pushed her out of the way. He started to back off, saying, "Everything cool, man, leave me alone." He then began running down the street. Scooter, followed by Lydell and Rollo, ran after Freddy. As Jackie ran after them, she saw Scooter stab Freddy twice in the back. The defendants were still running up behind Scooter. Freddy slowed down after he was stabbed. Scooter then ran around in front of Freddy. Lydell and Rollo were on each side of Freddy, holding his right and left arm, respectively, when Scooter stabbed him twice in the chest with the knife.
Jackie testified that immediately thereafter, she heard her sister, Crystal, call her name. She turned around, yelled "What?" and Crystal told her to come to where she was. Jackie refused and told her to come to where she was. She turned back around and started walking toward where Freddy had been, although she could not see him. Scooter and the defendants were walking toward her; she told Scooter that if Freddy was hurt, she was going to tell. Scooter said: "If you tell, you gonna get the same treatment." He and the defendants then continued walking back to Mary's house. Jackie testified she was going on to see how Freddy was, but Crystal kept calling her and she walked back down the street to where Crystal was near Mary's house.
Jackie and Crystal went inside Mary's house; Scooter and the defendants were there, along with Mary, Turina, and two other people, presumably two of Mary's three children. Lydell called Jackie names, and tried to talk to her. She told him to let her go. Scooter and the defendants then left the house, and left the area in the car in which Rollo and Lydell had arrived.
Jackie testified she was trying to stop crying, and that she, Turina, and Crystal went to see how Freddy was. They found him lying next to the curb on his stomach. His shirt was pulled up, exposing a portion of skin of his lower back. Jackie told Crystal to call an ambulance; the police arrived before the ambulance.
Crystal Hill testified that she was in her backyard hanging up laundry, when she heard people running, hollering, up the street. She went to the corner of Loomis and Sanford and saw her aunt, Turina Cochran. After she talked with Turina, she started moving up the street, calling for Jackie. She met Jackie, they talked, and then saw Scooter, Rollo and Lydell walking together down the street. She testified she heard Scooter tell Jackie, "She get the same thing happen to her." They all then went to Mary Neiber's house. The three men left after about five minutes. Then she, Jackie, and Turina went to find Freddy. She testified she did not make a report to the police of what she had seen or heard, and that they did not question her specifically about the incident.
Officer Koelker, the first Rockford police officer on the scene, testified he found Freddy lying stomach-down on his side against the curb. His shirt was pulled up, exposing a portion of his back and the top of his undershorts. Koelker pulled the shirt up further, exposing two puncture wounds on the back of the body and two wounds on the front of the body. A black belt with a two-pronged buckle was found laying in the street about three to four feet away from the body. Recalled later on behalf of defendant Banks, Koelker testified Crystal Hill told him that she had been informed by her sister of the fight between Freddy and Scooter, that her sister was worried that Freddy was hurt, and that she (Crystal) went looking for him. She did not say anything to him about hearing people running and hollering, or about the threat made to Jackie by Scooter, but Koelker testified he did not ever take a formal written statement from her as to her knowledge of the entire incident.
Dr. Larry Blum, an associate pathologist, performed the autopsy on Freddy Peterson on the morning of August 4, 1983. He discovered two stab wounds in the back and two stab wounds in the chest. The wound in the left lower back was made before the wound in the right upper chest. Beyond that, Doctor Blum could not determine the order in which the wounds were inflicted. The wound to the right upper chest was the fatal wound. There were two other cuts, one on Freddy's right wrist and the other on Freddy's right thumb. Doctor Blum characterized these cuts as defensive wounds and stated that Freddy must have had free movement of his arms when they were inflicted. No bruises were found on Freddy's arms.
Doctor Blum testified that two tears in the back of Freddy's shirt corresponded to the wound in Freddy's back, assuming that the shirt was worn normally. There were also two tears in the front of the shirt, down toward the bottom. The width between the tears was much less than the width between the chest wounds. Doctor Blum testified that in his opinion, the shirt could not have been worn in a normal manner, tucked in the pants, and have those cuts correspond to the wounds on the body. He testified the stab wounds inflicted on the back would not be so debilitating that the person could not still walk or run a distance.
Officer Irma Olson testified that at 12:40 a.m., on August 4, 1983, she went to Vinson Banks' house. She was admitted to the house by Banks' sister, and went to an upstairs bedroom where she saw Banks lying in bed, under the covers, with his eyes open. Richardson was lying on top of the bedcovers, and had to be tapped on the shoulder to be roused. Both men were fully clothed. She did not see any blood on them or their clothing.
Over continuing defense objection, Officer Chris Dickinson testified that she talked to defendant Richardson at 5:42 a.m. on August 4, 1983. Richardson told Officer Dickinson that he went to Mary Neiber's house with defendant Banks, had a couple of beers, and stayed for about an hour and a half. He did not see tires slashed or fighting; he left alone, and walked home. Richardson later told her that he had left the party with Banks when the fight started, and that the fight had probably been over a girl. At about 6:50 p.m., in another interview with Officer Dickinson, Richardson told her that he had not seen or been involved in a fight, and that "[t]hey took me home first." At 9 a.m., earlier that same day, Richardson told Detective Jeff Otwell that he did not remember much of the night before because he was "high" at the time. He said that he saw Scooter chase the victim down the street and that a short time later, Scooter came back. Richardson said he never saw a knife. He also said that Banks gave Scooter a ride, and that he was with them.
Jackie Hill was questioned extensively on cross and redirect examination concerning her written and tape-recorded statements in which she exculpated both defendants. The first such statement was written and signed by her on January 26, 1984, in the presence of Cynthia Fulson, Judi Levingston, and Melanie "Money" Scott, an employee of defendant Richardson's attorney, Earl Washington. Scott and Fulson shared a duplex with their children and Fulson's mother. Levingston was an acquaintance of Jackie Hill, and a friend of both Scott and Fulson.
In the statement, Jackie wrote that she was wrong when she told the police Lydell did it, and that Lydell and Rollo were not in Freddy and Scooter's fight. She wrote further that Lydell should not have given Scooter a ride home, but that they did not touch Freddy. She testified on cross-examination that when she wrote the statement, Melanie Scott told her she also would have to have a conference with and make a statement to Earl Washington, defendant Richardson's lawyer. Jackie further testified on cross-examination that several days later, on January 30, Melanie called her from her (Jackie's) cousin's house and told her to meet her there. They then went to Melanie's house where attorney Washington was waiting, and she made a tape-recorded statement which was played for the jury and admitted in evidence as defendants' exhibit No. 2. Leave was granted to supplement these records on appeal with the tape.
In the tape recording, Jackie recounts the events preceding the stabbing consistently with her trial testimony. In response to attorney Washington's questions, however, she states she saw Richardson and Banks chase Freddy down the street, but did not see them touch or hold Freddy. When asked why she told a different story earlier, she said it was because the police kept asking her whether anybody else had something to do with it, and she was upset because the three of them Scooter, Lydell and Rollo had left together. She also said the police threatened that if she lied or withheld evidence that they would send her to a juvenile home. When attorney Washington asked her on the tape if she would be willing to go to court to give her statement, there was a notable pause and she quizzically responded: "I have to go to court?" She agreed to the necessity of it, but she expressed her worry that her mother would find out.
On further cross-examination, she testified she was neither angry with nor frightened of attorney Washington either at trial or at the time she made the tape recorded statement. She admitted she never told the prosecutor anything about either her written or recorded statement until March 16, 1984, when she was called to the prosecutor's office and asked about them. By that date, she had already testified in Scooter Howard's trial. She denied anybody in the State's Attorney's office said anything to her about perjury or punishment or the juvenile home in connection with her contrary statements. She stated she had asked "`Money' [Melanie Scott] and them" about it before and that they said nothing would happen.
On cross-examination by defendant Banks' attorney, she stated that when she talked with Officer Pobjecky at the scene she did not say anything about either Dexter Richardson or Vinson Banks because he told her to wait until she got downtown. She did not give him any names ...