Appeal from the Circuit Court of Jackson County; the Hon.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Defendant, John W. Lilly, was charged with the murder of Edward Fletcher, Jr. Following a jury trial in the circuit court of Jackson County, he was found guilty and sentenced to 40 years' incarceration.
The pertinent facts adduced at trial are as follows:
Carolyn Fletcher, a/k/a Carolyn Patterson, testified that on Sunday, October 30, 1983, she arrived on "the Levee" (a tavern and nightclub area in northeast Carbondale) at approximately 9 p.m. for an evening out. She was accompanied by three other women, Nora Lee Farr Colbert, Brenda Moore, and Beverly Moore.
As Mrs. Fletcher was walking toward the business establishment, she passed by John W. Lilly, who was walking in the opposite direction. Mrs. Fletcher had gone to high school with Lilly. She stated that Lilly was dressed in dark clothing and had a "wolfman's" mask sitting atop his head.
Mrs. Fletcher then encountered her husband, Edward Fletcher, Jr., and her boyfriend, Paul Barr, arguing with each other near the Cadillac Lounge. She then left the area of the "Levee" for a short time and returned. Upon her return, she took a position across the street from where Edward Fletcher and Barr were arguing. At approximately 9:24 p.m., Mrs. Fletcher observed a masked man come out of an alley near where her husband and Barr were arguing, walk up to her husband, and shoot him in the head. She then saw the masked man going back down the alley, running from the "Levee" district. Mrs. Fletcher immediately went into Fat's Lounge, located near where she was standing, and reported the shooting to the Carbondale police department. At that time, she also identified John Lilly as the shooter.
Officer John B. Sytsma testified that he was dispatched to the location of Carter's Aluminum & Recycling Center at 9:24 p.m. on October 30, 1983. He identified the victim as Edward Fletcher. After talking with witnesses, he radioed two other units, informing them he had a suspect's name, John Lilly. He examined the scene and found nothing that could be construed as a weapon on or near Mr. Fletcher. He also did not observe anyone dressed in halloween-type costumes.
Jeff Moore testified that on October 30, 1983, between 9 p.m. and 9:30 p.m., he was in the 200 block of North Washington in Carbondale. He stated that he saw Edward Fletcher and Paul Barr arguing that evening. He said that he was standing about 100 yards from Mr. Fletcher on the same side of the street at the time Mr. Fletcher was shot. He stated that a person dressed as a werewolf shot Mr. Fletcher. He stated that the person who shot Mr. Fletcher had a full head mask over his head, but he could not remember the clothing worn by the assailant. He further stated that the person who shot Mr. Fletcher ran down the alley on the south side of Carter's building. The witness then denied talking to Officer John Sytsma on the evening in question, and over the defendant's objection the prosecutor was allowed to impeach the witness and question him as if under cross-examination pursuant to Supreme Court Rule 238 (87 Ill.2d R. 238). Moore denied seeing John Lilly on the square in the 200 block of North Washington on October 30 but later admitted to telling a black police officer immediately after the incident on the night in question that John Lilly was the man who shot Eddie Fletcher. He also stated that he did not want to testify in this particular case.
Edward Mims testified that he was in the 200 block of North Washington on the night of Sunday, October 30, 1983. He admitted seeing and hearing Barr and Fletcher arguing and stated that he was standing next to them while they were arguing. He testified that he saw Fletcher get shot and stated that a man in a wolf mask shot Fletcher with a silver, small-caliber handgun. Mr. Mims then denied telling the police who the man was in the wolfman mask. The prosecutor again invoked Supreme Court Rule 238 (87 Ill.2d R. 238), which was allowed over the defendant's objection, and Mims admitted talking to Sergeant Don Strom of the Carbondale police department after the incident. Mims stated that Strom had asked him, given the way the assailant walked and talked, whether he seemed like John Lilly. Mims replied affirmatively.
Cynthia Ware also testified. She stated she had been talking to Mr. Fletcher for almost an hour when somebody in a mask shot Mr. Fletcher in the head. She stated that the assailant had on a blue pair of pants, a jacket coat, and a half-mask (a mask that did not cover the back of the killer's head.) She also mentioned that Mr. Fletcher was shot by a silver gun.
Paul Barr admitted having an argument with Fletcher on October 30, 1983, but denied knowing who shot Fletcher or what the person was wearing. He stated that he did not see Fletcher get shot, but heard the shot, froze, turned around, and saw Fletcher lying on the ground. He further stated that he saw a knife in Fletcher's hand and that Jeff Moore took it from Fletcher. He stated that the defendant was a friend and that he had known him for a couple of years. The prosecutor then cross-examined Mr. Barr pursuant to Supreme Court Rule 238 (87 Ill.2d R. 238). The prosecutor questioned Barr about an interview he had with the police on October 31, 1983. At that time, he was asked if he took anything out of the pockets or the hands of Edward Fletcher on the night in question, and he replied, "No." He admitted that on October 20, 1983, he took a trip to Tuscola with John Lilly and Michael Braun. Unknown to him at the time, Braun was an undercover agent with the State of Illinois. They met a woman at the truck stop and proceeded back to Carbondale. He denied that on the return trip defendant pulled out a .32-caliber silver revolver and showed it to him, explaining that he had received it from Rose Johnson, the woman at the Dixie Truck Stop. He stated "the only thing we had was drugs." He admitted having a conversation with Braun on November 1, 1983, at approximately 11:45 a.m., at his residence. However, he denied telling Agent Braun that he and defendant had decided the previous Sunday, October 30, to locate Edward Fletcher on the square and that Lilly would dress in a halloween costume and kill Fletcher. Barr stated that all he and Braun discussed were drug transactions. He also denied telling Braun that he assisted Lilly and threw the gun in the lake. Mr. Barr was further impeached by a conviction in Jackson County circuit court in 1982 for theft and two counts of battery and a conviction in the United States District for the Southern District of Illinois on counts of an indictment for knowingly conspiring and agreeing with others to distribute cocaine.
Ora Lilly, defendant's grandmother, Carol Lilly, defendant's aunt, and Wilbert Lilly, defendant's first cousin, all testified that they were present at Ora Lilly's residence on October 30, 1983, and saw John Lilly. Carol Lilly stated that John Lilly arrived at the residence on at least two occasions, one prior to the beginning of the program "Motown 25," which began at 8 p.m., and second time around 9 p.m. She stated the first time he was playing with the children and the second time he played with the children and asked her mother for a ride home. She didn't remember whether or not John Lilly had a mask but recalled that the children had masks and were playing with masks. She admitted making a statement to the Carbondale police on October 31 and admitted, after reading her statement, that defendant had on October 30, 1983, a full mask that had dark hair on it which could perhaps pass for a person's real hair. She stated that the mask looked like a wolf.
Ora Lilly stated that she saw her grandson, the defendant, at about 6 p.m. on October 30, 1983, when he came by the house. She did not know how long he stayed and saw him again around 9 p.m., when he came to the house. She recalled, after reading her statement given to Carbondale police on October 31, that Lilly had a pullovertype mask, which she described as a Frankenstein or werewolf.
Wilbert Lilly testified that he saw his cousin at his grandmother's house at approximately 8:45. He was not sure whether or not John Lilly had a mask with him. He also had made a statement to the Carbondale police on October 31 and indicated John Lilly had a mask and that it was a werewolf mask.
Don Strom, a police officer for the city of Carbondale, stated that on October 30, 1983, at about 9:30, he was advised by their radio dispatcher of a shooting in the 200 block of North Washington. He and Officer Deborah Smith got into the squad car and drove to the apartment complex where Lilly was living. He left Officer Smith there for surveillance purposes and proceeded to the site of the shooting. There he talked with Officer Sytsma and later with Edward Mims. He was then advised by radio that Officer Smith had observed some vehicles entering the apartment complex. He requested assistance and was then advised by Officer Smith that defendant's car was leaving the complex. The automobile was stopped, and John Lilly was ordered out of the car, placed in custody and advised of his rights.
John Kluge, a detective with the Carbondale police department, testified that he and Detective Brandon interviewed Lilly after he was arrested. Defendant denied being downtown the evening of October 30.
K. Gary Otey conducted a gunshot residue test on the hands of Lilly on October 30, 1983. Various officers testified as to the chain of custody of the gunshot residue kit.
Donald Havekost, a special agent with the Federal Bureau of Investigation, then testified. He stated that he had received the gunshot residue kit from the Carbondale police department. He stated that the samples taken from the back of the defendant's right hand and the back of defendant's left hand had amounts of both antimony and beryllium, which in his opinion are consistent with the amounts he would expect to find on the hands of a person who had recently discharged a firearm or otherwise been close to a firearm when it discharged.
Michael Braun testified. He stated he was a special agent with the Illinois Department of Law Enforcement, Division of Criminal Investigation. He stated that he met Mr. Barr while working on an undercover investigation in Carbondale and also stated that he knows John Lilly. He stated that neither individual knew he was a law enforcement agent. He testified that he met Paul Barr and defendant at about 11 a.m. on October 20, 1983, and they departed Carbondale in his State vehicle and drove to the Dixie Truck Stop in Tuscola. There they met a black female. They were at the truck stop for about 10 minutes and then drove back to Carbondale. He stated that just after departing the Dixie Truck Stop defendant displayed a silver-colored .32-caliber Clerc brand revolver bearing Serial No. 133105. Braun examined it and returned it to Lilly. Braun also testified that he had another conversation with Paul Barr at approximately 11:45 a.m. on November 1 at Mr. Barr's residence. When Braum was asked what was said in that conversation, defendant objected on the grounds of hearsay, but the court received the testimony for the limited purpose of it relating to Mr. Barr's credibility. Braun then testified that Barr had told him that on the evening of October 30, 1983, he and John Lilly had gone to the square, found Eddie Fletcher, and killed him using the handgun that had been supplied by the third party at the Dixie Truck Stop in Tuscola. Braun said that Barr had told him that he had engaged Fletcher in conversation, at which time Lilly approached and shot Fletcher. Braun further stated that Barr told him that the murder weapon and the halloween costumes were thrown in a lake.
Nora Lee Farr Colbert testified for defendant and stated that she was on the Levee with Carolyn Patterson, a/k/a Carolyn Fletcher, on the evening of October 30, 1983. Ms. Colbert testified that she did not see defendant that night.
Deborah Smith, who was an officer with the Carbondale police department at the time of the shooting, also testified. She stated that Detective Strom dropped her off at defendant's apartment building at approximately 9:30 on the night in question, and she watched the apartment building. However, she could only see the north entrance. She did not see anyone enter the building but did observe a black male come from the back of the building on the first floor and go to the second floor.
Defendant first contends that the evidence did not establish his guilt beyond a reasonable doubt. However, after thoroughly examining the record, we find the evidence of his guilt was overwhelming.
A criminal conviction will not be set aside unless the evidence is so improbable that it creates a reasonable doubt of the defendant's guilt. Once a defendant has been found guilty, judicial review of all of the evidence is to be considered in the light most favorable to the prosecution. (People v. Collins (1985), 106 Ill.2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. ___, 88 L.Ed.2d 274, 106 S.Ct. 267.) This rule is also applicable when it is the sufficiency of identification testimony that is attacked on review. See People v. Milam (1980), 80 Ill. App.3d 245, 252, 399 N.E.2d 703, 707.
Defendant alleges that plaintiff's chief occurrence witness, Carolyn Fletcher, was simply not credible. However, we note that where conflicting evidence arises it is the province of the jury to determine the credibility of witnesses and the weight to be given their testimony, and in such function this court will not substitute its judgment for that of the jury or court. (People v. Tensley (1954), 3 Ill.2d 615, 621, 122 N.E.2d 155, 158, cert. denied. (1956), 351 U.S. 967, 100 L.Ed. 1486, 76 S.Ct. 1032.) Sufficiency of identification testimony is also a question of fact for the jury, and the jury's determination will not be disturbed on review ...