Appeal from the Circuit Court of Cook County; the Hon. Stephan
C. Schiller, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 3, 1987.
Elton Houston appeals his conviction for murder by a jury, and Robert Brown appeals his conviction for murder by the court in a simultaneous trial before the same trial judge. Both were sentenced to 35 years' imprisonment. They jointly identify issues on appeal to include whether the circuit court erred in: (1) finding the police had probable cause to arrest each defendant, and (2) finding each defendant was proved guilty beyond a reasonable doubt. Additionally, Houston claims that the circuit court erred in: (1) failing to suppress statements he made to police in his apartment before he received Miranda warnings, and (2) refusing to permit cross-examination of a police officer to elicit a statement made by Houston to that officer at the police station after the State elicited earlier conversations between Houston and the officer. Brown asserts further error in questioning whether: (1) his jury waiver was invalid because premised on a reasonable but mistaken belief that the only occurrence witness would explain his having recanted his statements because of gang intimidation, and (2) the circuit court erred in failing to grant him a new trial based on newly discovered evidence that two other men confessed to the murder and exonerated Brown.
At about 7:20 p.m. on June 18, 1983, Ronnie Bell was struck and killed by 15 gunshots fired by two or three assailants at 315 West 88th Street in Chicago.
Earlier that evening, at 6 p.m., Larry Baker noticed a brown and white Buick parked in his usual space in front of his home at 451 West 87th Street. Baker pulled alongside, looked in the car, then parked directly ahead of the Buick. As he unloaded his car, Baker again glanced at the Buick and then took another look as he walked between the two cars. Baker noticed three people in the car, two in front, one in back. He could not get a good look at the driver but testified that the front-seat passenger was a black male with a medium afro, half beard, and a mustache, age 24 to 25. Baker described the back seat passenger as a black male, age 19 to 24, with his hair in corn curls, having sideburns and a mustache. The car drove off before 6:10 p.m.
Baker again saw the same car, with three occupants, at 7:30 p.m. when it pulled up near his home. All three men exited the car. One man appeared to adjust a burglar alarm or lock the car; then all three left in another car. Later that evening Baker described the front-seat passenger to Officer James Gorman as a black male, age 19 to 24, with a medium mustache, full afro, sideburns, and an earring in his right ear, about 5 feet 9 inches to 5 feet 11 inches in height.
Charles Anderson, driving west on 88th Street, saw his friend Ronnie Bell at 7 p.m. walking east on 88th near Harvard. He stopped, and they talked. Anderson noticed a brown Buick in front of him, with three occupants. As they talked, Anderson saw two men leave the car, wearing gloves, although it was a warm day, and walk towards him and Bell. As they walked quickly past him, one man looked right at Anderson, who looked back. Anderson drove off west, while Bell continued walking east. When the police interviewed Anderson the next day, he described one man as a black male, 30 years old and 6 feet tall and the other as a black male wearing dark clothing, stocky, with facial hair and medium dark skin.
Verdist Poindexter, who lived at 88th and Harvard, heard gunshots at about 7:15 p.m. or 7:20 p.m. while watching television. He crawled on the floor to a corner window and saw a man run up to Ronnie Bell and start shooting. Poindexter watched the man fire five more shots at Bell and heard another shout: "Come on. Let's go." Poindexter saw the shooter run back to a brown and white Buick stopped in the middle of the street, which was driven off. It was bright daylight and he saw the shooter's face during the shooting and again when the gunman ran past him to reach the Buick. Poindexter estimated the gunman was only about 15 to 20 feet away from him.
When the police arrived a few minutes later, Poindexter described the gunman to Officer Charles Williams as a black male wearing a green shirt and blue jeans, about 23 years old with straight permed hair. He later denied he had mentioned straight permed hair and thought he told the officer the man was wearing a cap or a hat. Officer Williams reported Poindexter was visibly shaken when they talked. Later, when calmer, Poindexter described the shooter to another police officer as a black male in his twenties with a dark complexion, wearing a green shirt and blue jeans and guessed the gunman's height at 5 feet 9 inches.
After the police interviewed Poindexter, they began searching for the Buick. Officer Marshall Massey discovered a car fitting the description at 451 West 87th Street. The engine was still warm. Massey interviewed Baker, secured the car, and had Poindexter identify it. When evidence technicians checked the car, they found a weight lifter's belt inscribed "OFF. AKULA (EL)." Akula El was the nickname of J.L. Houston, the car's registered owner. The car had not been tampered with.
Evidence technicians also found two automatic pistols without bullets under the front seat of the car and a third pistol inside a tan bag in the car. A police firearms expert later testified that 14, .45-caliber bullets found in Bell's body were fired from the two pistols found under the front seat. The only identified fingerprints found were one set belonging to J.L. Houston.
Four police officers went to J.L. Houston's address, 168 North Latrobe, Chicago. His mother informed them that J.L.'s brother Elton had driven the car and telephoned Elton. Officer Joseph Danzl spoke with him, and, at Elton's invitation, the police went to Elton's apartment at 5247 West Lake Street.
Elton Houston claimed he had last seen the car the previous evening at 11 p.m., discovered it missing about 10 a.m. that morning, and thought J.L. had taken it. That night J.L. called him stating he did not have the car. Elton telephoned the police to report the automobile stolen. Police records indicate the stolen-car report was made at 11:02 p.m. Police requested that Elton accompany them to the station for further questions and gave him Miranda warnings after he arrived at the station.
Meanwhile, when police earlier talked with Baker near the Buick, he pointed to a man, later identified as Louis Lomax, whose hair resembled one of the occupants of the car. The police took Lomax into custody. The next day Lomax told Detective Larry Nitsche that he worked as a carpenter for the El Rukns and, while visiting his girlfriend's apartment at 6400 South Woodlawn, someone asked him to find out what the police knew about the brown Buick and the homicide. On June 19 after 3 p.m., Detective Nitsche went to 6400 South Woodlawn to question Lomax's girlfriend. While talking to her, he heard a noise at the door, pulled it open suddenly, and defendant Robert Brown fell into the room through the doorway, wearing a doctor's stethoscope on his head. Brown identified himself as an El Rukn, told the detective to get out, and refused to explain what he was doing at the door. Noticing Brown was wearing blue jeans and a green army fatigue shirt, which matched the color of one of the reported assailants, Nitsche took Brown to the police station.
On June 19, Poindexter identified Brown in a lineup as the man who had shot Ronnie Bell. That same night, both Anderson and Baker identified Elton Houston in a lineup as an occupant of the brown Buick, both pointing out that Houston had an afro when they saw him on June 18 but wore his hair in braids at the time of the lineup. Baker was unable to identify Lomax in a lineup.
Houston and Brown were indicted for murder and armed violence in July 1983. Elton Houston was tried by a jury, which Brown waived. Their joint attorney, Thomas Peters, noted that his cross-examination of Poindexter might allow the State to raise the question of Brown's alleged El Rukn membership. Peters asserted that Poindexter had recanted his testimony in a telephone conversation with Peters, claiming he did not see the shooting and was drunk during the lineup. The circuit court found Brown guilty of murder on April 24, 1984, and sentenced him to 35 years' imprisonment on July 31, 1984. The jury deadlocked, and the Houston trial ended in a ...