APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
513 N.E.2d 1011, 160 Ill. App. 3d 967, 112 Ill. Dec. 402 1987.IL.1306
Appeal from the Circuit Court of Cook County; the Hon. Joseph Urso, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
On appeal, defendant contends that: (1) he was not proved guilty of murder beyond a reasonable doubt; (2) the trial court erred in refusing to question each prospective juror during the voir dire about the effect defendant's failure to testify would have on each of them; (3) the trial court erred in publishing photographs of the deceased to the jury; and (4) he was denied effective assistance of counsel. For the reasons that follow, we affirm.
The defendant and the victim, Charles Davis, were acquaintances. On the night of the murder, March 30, 1983, defendant and Davis were seen arguing in a bar, the Pine Inn Tavern, which they left together at about 9 p.m.
On the same evening at about 9 p.m., a witness, who was walking towards another bar, Edi's Game Room, which is across the street from the Pine Inn, saw two men "tussling" in the alley behind the Pine Inn. After the witness saw one of the men stab the other, he ran into Edi's and told the people there what he had just seen. Three patrons of Edi's went outside and saw a man, Davis, who had been stabbed. They saw another man in the alley with a knife in his hand. They chased the man but eventually lost him.
One week later, on April 6, 1983, the police arrested the defendant for Davis' murder. On the same date, the four witnesses from Edi's identified the defendant in a lineup. At trial, defendant's alibi was that at the time of the murder he was with his girlfriend and his sister at his sister's house. Defendant's sister testified on behalf of defendant and corroborated his alibi.
Defendant first contends he was not proved guilty of murder beyond a reasonable doubt because the State's evidence was confused and contradictory, it contained uncertain identification testimony, and defendant had an alibi which was not contradicted. Specifically, defendant alleges that the State's five main witnesses contradicted each other concerning what the season and weather were on March 30, 1983, the night of the murder. One witness testified that it was summer or spring and had not been raining. Another witness testified that it was winter or fall and had been raining. A third witness said it was August, had not been raining and was kind of cold outside. Another witness stated it was fall and had not been raining. The final witness testified it was March, it had not been raining, but it had been drizzling.
Defendant also argues that the witnesses contradicted each other concerning the length of the knife they had seen the man in the alley holding on the night of the murder. Two witnesses testified it was 12 inches long, another said it was 8 inches, and another stated it was 9 or 10 inches.
In addition, defendant asserts that three of the State's witnesses recently received sentences of imprisonment for armed robbery and robbery which were entered pursuant to plea agreements. Thus, defendant argues, those witnesses lacked credibility.
Defendant further asserts that the State had no physical evidence, such as a knife or clothing, connecting him to the murder. In particular, the State failed to produce a dark jacket with stripes down the sleeves, which the State's witnesses had seen on the offender, and which one witness, who knew the defendant, stated that defendant owned.
This court will not substitute its judgment for the trier of fact concerning the weight of the evidence and the credibility of the witnesses unless the testimony is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) In addition, the positive identification of a single witness is sufficient to support a conviction provided the witness is credible and observed the offender under conditions which would allow a positive identification to be made. (67 Ill. 2d 564, 578, 367 N.E.2d 1313; People v. Nims (1986), 156 Ill. App. 3d 115, 119, 505 N.E.2d 670.) A conviction under these circumstances may stand even where the defendant presents an alibi which is corroborated. (156 Ill. App. 3d 115, 50 N.E.2d 670.) The following factors may be considered in evaluating identification testimony: (1) the opportunity of the witness to view the offender at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the offender; ...