Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:
This case involves a consolidated appeal by defendant Robert Lee from convictions resulting from two separate trials. In the first case (Lee I), after a jury trial, defendant was convicted of the murder and attempted armed robbery of William Hawbecker and was sentenced to a term of imprisonment for natural life. In the second case (Lee II), defendant was convicted after a bench trial of the attempted murder and armed robbery of Peter Larson and was sentenced to 20 years' imprisonment, to run concurrently with the life sentence. The same trial judge presided over both trials. By stipulation of the parties, the evidence in the Lee II trial consisted solely of excerpts from the transcript of the Lee I trial. The two appeals were consolidated since they contain common issues.
The charges against defendant arose out of three separate shootings in Chicago's Uptown area on the evening of January 26, 1984. On that date, Hawbecker was treated for a gunshot wound by Dr. Cathleen Cline at Illinois Masonic Hospital. Hawbecker told the doctor that he had been beat up in the head area and then shot by two men as he was walking down the street sometime between 7 and 7:15 p.m. Hawbecker had walked home and was taken to the hospital by a friend. After talking to Dr. Cline, Hawbecker was interviewed by Chicago police officers James Allota and Nick Cesario. He told the officers that he had been shot near 3400 North Lakewood Street by a white male, 16 to 18 years old, who was approximately 5 feet 8 inches, with long blond hair and was wearing dark clothes. His assailant fled after the shooting; no robbery took place. The officers then transmitted the description of Hawbecker's assailant, excluding any reference to his clothing, over their police radio.
At 8:15 p.m. Officers Alex Horstein and Donald Eichler separately responded to a "man with a gun" call near 4200 North Kenmore Street, approximately one mile away from the location of the Hawbecker shooting. At the scene, an unidentified man told Officer Eichler that a young blond kid, approximately 18 to 25 years old, had displayed a handgun and caused a commotion. Officer Horstein testified that he heard at least one, and maybe 15 to 20, unidentified by-standers state that Robert Lee was the person with the gun. The officers then left the scene and drove through the area looking for the described person. Both officers stated that they had known defendant for several years prior to this incident and that they were both aware of past complaints of defendant shooting out streetlights on Kenmore. Horstein further testified that he remembered that complainants had said defendant was shooting the streetlights with a chrome-plated gun that "sounded like a .22." Also, both officers had heard the earlier description of Hawbecker's assailant over their police radios.
At 9:15 p.m. Officer Eichler saw defendant walking near Belmont and Clark Streets, which is approximately 1 1/2 miles from the "man with a gun" location and one-half mile from the area where Hawbecker was shot. Based on the "man with a gun" description, he stopped defendant, asked for identification, and patted him down, looking for a gun. No weapon was found, and defendant was released. Officer Eichler then transmitted the details of the stop over his radio and included defendant's name and address in the radio description. Officer Horstein heard this report on his radio and, at 9:30 p.m., saw defendant walking near Clark and Cornelia streets but was unable to stop because of traffic. Horstein testified that he recognized defendant because the officer frequently visited a friend who lived in the same building as defendant's mother. Horstein testified that he had seen defendant in that building approximately 30 times during the past six years. Shortly after this 9:30 sighting of defendant, Officers Horstein and Eichler met with other tactical officers and discussed information concerning defendant.
Around 11 p.m., Officer Allotta received a radio call that a man had been shot in an alley off of 1061 West Cornelia, which is a few blocks from the Hawbecker scene and is four blocks from where Officer Horstein had seen defendant at 9:30 p.m. Allotta, who had interviewed Hawbecker in the hospital, responded to this call and spoke briefly with the victim, Peter Larson. Allota then interviewed Deborah Jones, who had witnessed the two assailants leaving the scene. Jones told the officer that two people were involved: a male, white Hispanic and white male who was 19 years old, very slender, and had long blond hair. This information was transmitted over the police radio, whereupon Officer Eichler radioed back that he had stopped defendant a short time before the Larson shooting. Eichler's radio message also stated that the description of one of the Larson assailants matched that of defendant and was also the same description as the Hawbecker shooter and the "man with a gun" report. Eichler also transmitted defendant's name, birthdate, and address. Upon hearing Allotta's message, Officer Horstein continued looking for defendant. Horstein stated that he believed defendant's address to be on Kenmore, where defendant lived during the complaints regarding the shooting of streetlights.
Larson, a cab driver, testified that he picked up two young men around 11 p.m. One of the men was a Puerto Rican and the other, whom he had a good view of under the cab's interior dome light, was white, about 18 years old, between 5 feet 10 inches and 6 feet tall with blond, shoulder-length hair that was pushed up by the man's coat collar. Larson could not recall any specific facial characteristics, including whether the white male had unusual eyes. Defendant has crossed eyes. Larson also could not describe the assailant's clothing. Upon arriving at their destination, the white male pointed a gun at Larson, announced "This is a stickup," and ordered Larson to drive into a nearby alley. The white male asked Larson for money. Larson took money out of his pocket and gave it to the Puerto Rican, who then left the cab. The white male then demanded Larson's wallet and afterwards shot him twice in the back of the head.
Around midnight, Paula Tomas was shot as she sat with a friend in front of her home on West Fletcher Street, approximately one mile from the location of the Larson shooting. Tomas did not see who shot her since there was no one else on the streets at that time. Her friend testified that a light blue car sped by and that he heard a shot and discovered Tomas had been hurt.
After these incidents on January 26, Officers Horstein and Eichler both stated that they continued to search for defendant until their shifts ended. Eichler waited outside defendant's West Buena Place address but did not knock on the door. Horstein testified that he continued to look for defendant for the next three days but that he never went to the building where he knew defendant's mother lived. Around 10 a.m., on January 30, Horstein saw defendant on the street, about four blocks from his home, and made a warrantless arrest for the January 26 shootings.
On the same day as defendant's arrest, Detective Stachula took eight photographs, including defendant's pictures, to Larson, who was in the hospital. Larson at that time told Stachula that his eyes were blurry and his frontal vision was affected by recent surgery. Larson stated that he could not identify any facial features and did not want to identify his assailant unless he could be positive.
The next day, January 31, defendant was questioned at the police station by Detective Stachula and Assistant State's Attorney Thomas Epach. Both men were familiar with the police reports concerning the shooting incidents. The police had no information concerning the Hispanic man involved in the Larson shooting, nor had the gun been recovered. Defendant was questioned for over an hour. Initially, he claimed a person who looked just like him shot the three victims and that he observed these events. After Stachula called defendant's mother and learned that defendant was in and out of their apartment that evening, defendant allegedly confessed to the shootings. (Later, at trial, defendant's mother testified that her son was in the apartment all evening except briefly around 10 p.m. A family friend similarly testified.)
Since defendant could not read or write very well, Epach wrote the three-page confession. Epach testified that as he asked a question of defendant, he would then write the answer down, changing only a few words. After the confession was completed, Epach then read the entire document to defendant after which defendant signed his name on each page. In his confession, defendant stated that he was a drug addict, that he needed money for drugs, and that he took his silver .22-caliber gun and went out looking for people to rob. He said that he tried to "stick up" Hawbecker on Lakewood, but that as Hawbecker began to reach into his pockets, he shot him. Defendant also stated that prior to the shooting, he had hit Hawbecker in the face several times. Defendant then went home and listened to music until approximately 11 p.m. when he went out and met up with a man whose name he did not know. Both men then proceeded to hail a blue and white cab and subsequently robbed Larson in an alley off Lakewood. As to the Tomas shooting, defendant stated that he walked up to the woman and demanded her money. When she became excited, defendant shot her. Defendant did not remember where he put his gun after the shootings nor did he know the name of his Hispanic accomplice.
Afterwards, Detective Stachula took defendant, who was handcuffed, to see Larson in the hospital. Stachula entered the room first and told Larson that he had a person who had confessed to the shooting. Stachula stated that defendant apologized to Larson, although he had not told him to do so. Larson then identified defendant as his assailant and later identified him at trial even though defendant's hair was shorter and was no longer blond. Stachula further stated that he then took defendant to Tomas' hospital room. Tomas did not identify defendant because she had not see who shot her. She also stated that no one had tried to rob her. She further testified that Stachula "made the kid apologize" to her.
On February 13, 18 days after he was shot, Hawbecker was found dead in his apartment. Dr. Robert Kirschnerr of the Cook County medical examiner's office performed an autopsy and determined that Hawbecker died as a result of an acute subdural hemorrhage which was caused by the gunshot wound to his head. Dr. Frank Marmo, a fifth-year neurosurgery resident who treated Hawbecker, was of the opinion that the gunshot wound did not cause Hawbecker's death.
Dr. Jack Arbit, a psychologist, testified as an expert witness for the defense concerning his examination of defendant. Dr. Arbitt tested defendant in June 1984. He determined that defendant was functionally illiterate and that he was essentially mentally defective, functioning in society less well than 98 out of 100 people. Dr. Arbit also testified that defendant's memory was his poorest ability and that he was prone to confabulation, i.e., "an individual's attempt to fill in the memory gaps when they are aware they should know what is missing, but cannot remember it." The State cross-examined Dr. Arbit on this point, noting that he assigned to defendant an overall I.Q. level of 68, which is considered mildly retarded by a well-known clinical book.
After defendant was found guilty in Lee I (the Hawbecker case), the trial court sentenced him to natural-life imprisonment pursuant to section 5-8-1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(1)) on the basis that Hawbecker was shot during the commission of another felony, attempted armed robbery.
On appeal, defendant raises nine issues. In both Lee I and Lee II, defendant contends that (1) the police lacked probable cause to arrest him; (2) the trial court erred in failing to suppress Larson's in-court and pretrial identification, even though the latter was grossly suggestive; and (3) the trial court improperly limited defendant's right to cross-examination and to present evidence on his behalf. In Lee I (the Hawbecker case), defendant additionally claims that (4) permitting the prosecution to introduce evidence of other crimes was error; (5) it was error to allow hearsay evidence concerning the offender's description and identification; (6) he was denied a fair trial by the prosecution's comments directing the jury's attention to his failure to testify and in arguing to the jury that he would commit violent crimes in the future, as well as other prosecutorial misconduct; (7) the trial court erred in refusing to give a jury instruction relating to a major defense theory; (8) the evidence was insufficient to support an attempted armed-robbery conviction; and (9) the trial court erred in its voir dire of potential jurors as to the death penalty.
Defendant contends that there was not probable cause for his warrantless arrest as he was walking down the street four days after the shootings. We disagree.
• 1 The existence of probable cause is a mixed question of law and fact based on a commonsense view of the totality of the circumstances. (People v. Lippert (1982), 89 Ill.2d 171, 178, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L.Ed.2d 85, 103 S.Ct. 92.) A person may be arrested without a warrant when a police officer has reasonable grounds for believing that person has or is committing a crime. (People v. Wright (1985), 111 Ill.2d 128, 145, 490 N.E.2d 640.) A mere suspicion by the officer is insufficient; however, evidence sufficient to convict is not necessary. (People v. Reynolds (1983), 94 Ill.2d 160, 166, 445 N.E.2d 766.) Furthermore, since arrests may serve an investigative purpose, they are not limited to situations where the facts indicate that it is more probable than not that the suspect has committed the crime. (People v. Lippert (1982), 89 Ill.2d 171, 179, 432 N.E.2d 605, citing 1 W. LaFave, Search & Seizure sec. 3.2, at 478-85 (1978).) Probable cause for a warrantless arrest depends on the totality of the circumstances and facts known to the officer when the arrest is made; if a reasonable and prudent person in possession of knowledge known to the officer would believe that the person to be arrested had committed a crime, probable cause exists. (People v. Krogh (1984), 123 Ill. App.3d 220, 223, 462 N.E.2d 790.) An officer may rely on his knowledge and experience to draw reasonable inferences from the observed facts, and information possessed by all officers working in concert is relevant. 123 Ill. App.3d 220, 223-24, 462 N.E.2d 790.
• 2 Here, the arresting officer knew that the description of the person who shot Hawbecker and Larson matched and, furthermore, that the description fit defendant's appearance. The officer also knew that defendant had been seen flashing a gun by 15 to 20 people in the general area of the shootings within the relevant time frame. Moreover, it was known by the arresting officer that defendant had been seen shooting out streetlights at the same location over a period of the last several years with a chrome-plated gun. These facts, coupled with Officer Horstein's knowledge of the area and his opinion that long-haired blond men were not common in Uptown in 1983, legitimately gave rise to a reasonable inference that defendant and the shooter were the same person. The hearsay statements of several by-standers at the "man with a gun" scene are permissible facts which the officer could use to establish probable cause. Information received from a private citizen or victim may be relied upon without independent verification of the citizen's or victim's reliability for purposes of probable cause. People v. Sain (1984), 122 Ill. App.3d 646, 651, 461 N.E.2d 1043.
When the foregoing circumstances, combined with Officer Horstein's knowledge and experience, are viewed in toto, it is apparent that there was probable cause to arrest defendant.
• 3 Defendant contends that the trial court erred in admitting evidence relating to the Larson shooting and the man-with-a-gun report in the trial involving the Hawbecker murder. Defendant argues that the other-crimes evidence was prejudicial and irrelevant to any issue in the Hawbecker trial. The Larson evidence was not such as to show identity, modus operandi, or a common design or scheme. The man-with-a-gun evidence was also irrelevant to the Hawbecker shooting since allegedly it did not competently establish defendant as the man with a gun.
On the other hand, the State claims that the other-crimes evidence was admissible as being relevant and probative of defendant's guilt. The Larson shooting was relevant in that it placed defendant in proximity to the time and place of the Hawbecker shooting the two shootings occurring approximately 3 1/2 blocks apart and within 3 hours, 45 minutes of each other. Moreover, the State contends that the descriptions of the assailants in the two shootings were similar and that these descriptions constituted the only evidence as to the identity of the Hawbecker shooter. Additionally, Larson's testimony was relevant to rebut defendant's alibi that he was at home all evening except for a short period between 10 and 10:30 p.m., and the evidence also operated to place a gun in defendant's hands on that evening. Lastly, the State claims that the two shootings bear a threshold resemblance to each other. The State also notes that the man-with-a-gun-report evidence was elicited by defense counsel from Officer Eichler ...