Appeal from the Circuit Court of Winnebago County; the Hon.
John C. Layng, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 1, 1986.
A two-count indictment filed in the circuit court of Winnebago county charged defendant, Ollie Staten, Jr., with murder in the December 31, 1980, shooting death of Randall Blank, a Rockford police officer. The first count alleged that defendant shot and killed Blank with intent to kill or do great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(1)). The second count alleged that defendant shot and killed Blank with intent to kill or do great bodily harm and that at the time of the shooting defendant was over the age of 18 and knew or should have known that Blank was a peace officer engaged in the course of performing his official duties (Ill. Rev. Stat. 1979, ch. 39, par. 9-1(b)(1)). Following a jury trial, defendant was found guilty of both counts. At the request of the State, a separate sentencing hearing was held to determine whether defendant should be sentenced to death. Although the jury found the existence of a statutory aggravating factor (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(1)), it could not unanimously agree to impose the death penalty. Subsequently, the trial court sentenced defendant to natural life imprisonment.
In the early morning hours of December 31, 1980, defendant was at the Stage Door Lounge in Rockford, with a friend, Robert Hockett. Janet Mayfield was also at the lounge with her boyfriend. Mayfield had to go to the restroom, so she put her purse down near some coats and other purses just outside the restroom door. When she came out a few minutes later, her purse was gone.
Randy Rosploch, who was in charge of coat checking for the Stage Door Lounge, saw defendant walk out of the lounge with something under his coat, which Rosploch thought was a purse. Rosploch followed defendant outside and saw him talking to a police officer, who Rosploch later identified as Blank. At the time Blank was wearing a uniform. Rosploch told the police officer to check under defendant's coat. At that point defendant began to run away with Blank in pursuit. Blank took out his portable radio and notified the police dispatcher that he was chasing a black male wearing a blue jacket and blue stocking cap for a possible theft of a purse.
During the chase Blank kept the police dispatcher apprised of his route. Blank chased defendant through a number of alleys and eventually caught him at the intersection of State and Madison, where the two began to scuffle. Over his radio Blank told the dispatcher that he was down. His last transmission ended with the words, "The gun."
Jerome Young and Paul Bahr, two workers for the Milwaukee Railroad, were drinking a pitcher of beer at a bar known as the Hideaway Tavern, which was located on State Street in Rockford. At approximately 12:30 a.m., Young and Bahr left the tavern. As they walked east on State Street toward the intersection of State and Madison, they observed two men struggling. Young testified he saw one of the men flip the other over his shoulder, and then the other man flipped the first one over his knee. One of the men said, "He has got my gun." At this point one of the men was on the bottom, and the other was standing up, pointing down at the man on the ground. They then scuffled a little more, and Young heard a shot. Young saw the man that had been on the bottom fall into the street. The other man then reached down and picked up something and ran. Young stated that when he heard the shot, the man who was down "was on his knees, on his one knee or butt" and the other man was standing over him about an arm's length away.
Bahr, who was a few steps ahead of Young, did not hear anything about a gun, and although he heard some words he could not make out what the men said from where he was standing. Bahr recounted that after the one man was flipped, the two men continued to struggle. Bahr said he then heard a shot and saw the man who was standing pick up something that looked like a bag and run away.
Within a minute of the shooting Officer Kenneth Carner arrived at the scene in a squad car. Young and Bahr showed Carner the man who lying in the street. Bahr stated that once the lights on the squad car were on the man, they could see that he was a police officer, before that it had been too dark to tell.
Carner testified he found Blank, shot in the forehead, gasping for breath. Blank was lying face down with his portable radio by his head. Around his waist was his night stick and along the curb was his flashlight. His revolver was missing, but he was wearing his holster. Under his body was a spent shell fragment. Carner also found two hats in a nearby alley: one was a stocking cap, and the other was the officer's cap. Carner testified he questioned Young and Bahr at the scene. On cross-examination Carner stated that both men informed him that they had seen two men go down on the ground. They then heard a shot and saw one of the men get up and run away. Carner further testified that one could not remove a Smith & Wesson .357 magnum from a holster without unlocking the holster clasp.
Gregory Hanson, a Rockford police officer, was on patrol on the morning of December 31, 1980. At approximately 12:30 a.m. he heard a radio transmission from Blank. Hanson immediately responded to the call and proceeded to the intersection of State and Madison. When he turned west on Market Street, about a block from the Stage Door Lounge, he observed a Mercury automobile driving east. As the Mercury approached, Hanson noted that the vehicle was occupied by two black males: the driver was wearing a blue jacket, and the passenger was wearing a dark colored jacket and a light blue stocking cap. Hanson made a U-turn and followed the Mercury until it turned into the parking lot of a restaurant known as the Sandwich Factory. Hanson parked to the left of the Mercury and observed the passenger, later identified as Robert Hockett, get out of the car and begin to walk toward the restaurant. As Hanson approached the Mercury, defendant got out of the driver's side. When asked for his driver's license, defendant stated that he did not have a license. Hanson testified he noticed a "fleshy material" on defendant's face and that defendant was breathing heavily and had difficulty speaking. Hanson stated he patted both men down. Although he found no weapons, he put defendant and Hockett in the back seat of the squad car. Hanson testified he then walked over to the Mercury and stood by the driver's door. Shining his flashlight in the window, Hanson saw a revolver on the floor behind the driver's seat. The revolver had black rubber grips and a silver disc on the side of one of the grips. Hanson said he recognized the revolver as belonging to Blank. He was familiar with Blank's weapon, he said, because his locker was next to Blank's at the police station. Hanson testified he also shined his flashlight into the front seat area of the vehicle and observed a brown purse on the floor in front of the passenger seat. At that point Hanson informed the dispatcher that he had two suspects in custody, and other officers arrived to assist him.
The evidence also showed that a print of defendant's second joint of his left ring finger was found on Blank's gun. The print was located in front of the trigger guard. A fingerprint expert testified that it was not possible to lift any prints from the trigger of Blank's gun because of its rough surface.
Richard Beishar, a sergeant with the Rockford police department, performed a prima-residue test on defendant's hands to determine if he had fired the gun. Although Beishar found residue on defendant's hands, he could not say whether defendant had actually fired the weapon. He admitted that, depending on the location of defendant's hands when the weapon discharged, residue could be present even if defendant did not fire the gun. He also did not know whether Blank had fired his revolver that night since no one had conducted tests on Blank's hands.
Special Agent Donald Havecost of the Federal Bureau of Investigation conducted a series of tests not only on the residue which was found on defendant's hands but also on Blank's revolver. Although he could not say specifically where defendant's hands were located when the weapon discharged, Havecost testified that in his opinion, based upon the tests, they "were behind the cylinder of the firearm and were in a position with the butt of the firearm facing him." Havecost could not give an opinion, however, on whether defendant had pulled the trigger.
Paul Muenkel, a detective with the Rockford police department, took a number of photographs of the scene of the incident and testified as to the location of various street lights. According to Muenkel there are street lights on all four corners of the intersection of State and Madison. These lights were on, Muenkel said, when he arrived at the scene at approximately 1 a.m. Muenkel further recounted that another street light is situated about 4 feet from the alley which turns west from Madison Street where the two hats were found. There was also a street light directly across the street from the Stage Door Lounge. These lights were also on, Muenkel testified, when he took photographs of the locations at approximately 2:30 a.m.
Robert Hockett testified that he was with defendant at the Stage Door Lounge on December 31, 1980. Hockett said he went to the bathroom, but when he came out defendant was not around, so he went outside to look for him. Hockett said he saw defendant talking to a man in a blue uniform who appeared to be a police officer or a security guard. He had a uniform-type cap on and an emblem on his sleeve. Hockett stated that they were facing one another about 3 or 4 feet apart. Hockett, however, could not hear what they were saying from where he was standing. Defendant, he said, was wearing a blue coat and a stocking cap. Hockett explained that he walked to the car, assuming that defendant would follow him. When he got to the car, though, defendant was nowhere in sight. Hockett testified he walked back toward the Stage Door Lounge and then saw defendant come out of an alley. Hockett said defendant told him that he thought he had just shot someone. The two men then got in the car, and on the way to Hockett's home they stopped at the Sandwich Factory.
Detective Rolland Donnelli of the Rockford police department first saw defendant in the police station at about 1:20 a.m. Defendant was in a holding cell when Donnelli and another detective, Charles Bishop, approached. According to Donnelli, defendant yelled out, "Let the other guy go, I shot him." At this point Donnelli removed defendant's handcuffs and he and Bishop took defendant into an interrogation room. Using a waiver form, Donnelli advised defendant of his rights. Defendant agreed to talk to the detectives but refused to sign the waiver form, saying that his mother had told him never to sign anything. Donnelli testified that defendant admitted to stealing a purse at the Stage Door Lounge and to shooting Officer Blank. Defendant, however, claimed that he did not realize that Blank was a police officer until after the shooting.
Clarence Lafler, the pathologist who performed the autopsy, testified that Blank died of a gunshot wound to the head. Lafler said the bullet entered the forehead and exited at the back of Blank's head. Although it was difficult to determine the exact angle of the bullet's path, Lafler stated that it traveled at a slightly downward angle, "maybe five or ten degrees."
The record reveals that the State intended to call Karen Welch, the police radio dispatcher, as its final witness. The trial court had earlier excluded from evidence the tape recording of Blank's running account of his chase of defendant due to its poor quality. The court had ruled, however, over defendant's objection, that Welch could testify concerning her recollection of what she had heard over the radio, based upon her memory and review of the tape. Once his motion to exclude Welch's testimony was denied, defendant agreed to let the court read the following stipulation to the jury:
"Karen Welch is a dispatcher at the Rockford Public Safety Building Communications Center, her dispatch code is Control 4. She was on duty working as a dispatcher on December 31, 1980, at 12:30 A.M. At that time she received a police radio transmission from Rockford Police Officer Randall Blank. His transmitting code was `Ocean 19.' She recognized his voice as he began transmitting to her. His first transmission to her was made at 35 seconds after 12:30 A.M. The following is her account of the transmission between her and him beginning at that time:
`RB: Control 4, Ocean 19.
RB: Send me a unit to be 10-60 Stage Door.
KW: Any East side unit by Stage Door, advise.
RB: I've got a subject running from me in the alley going east on toward State.
KW: 10-4. Units, Ocean 19 has a subject running east from the Stage Door in the alley toward State.
RB: Negro male, blue coat, blue stocking cap; believe he just stole a purse.
KW: 10-4. Believe it's a possible strong arm, blue coat, ...