APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
536 N.E.2d 816, 180 Ill. App. 3d 1065, 129 Ill. Dec. 766 1989.IL.326
Appeal from the Circuit Court of Cook County; the Hon. John A. McElligott, Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Defendant, Cleavon Kidd, was convicted of murder and armed violence and sentenced to 25 years in the Illinois Department of Corrections. On appeal, defendant contends that (1) the State's identification evidence was not sufficient to prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying defendant's motion to quash arrest and suppress evidence; (3) the trial court erred in admitting evidence of an out-of-court identification of defendant; (4) the State's destruction of evidence precluded defendant from exercising his sixth amendment right to confrontation and his right to establish a defense; (5) the trial court improperly considered defendant's prior arrests in imposing a 25-year sentence; (6) the trial court abused its discretion in sentencing defendant to 25 years in prison; and (7) the trial court improperly entered judgment on two counts of murder since only one person was killed. We affirm in part and reverse in part.
On October 15, 1983, at approximately 8:30 p.m., Linda Hutcherson was walking eastbound on 16th Street in Chicago. As Hutcherson walked, she observed Darryl Tapes talking with an unidentified woman near a cleaning store. Hutcherson continued walking eastbound and passed the victim, Lionel Jones, as he walked westbound. Hutcherson then walked diagonally across a vacant lot.
After Hutcherson was approximately one-third of the way into the lot, she heard a gunshot, turned and saw two men running. Hutcherson began to run and looked over her shoulder as she proceeded. Hutcherson heard another gunshot, and when she looked back she saw a man, later identified as Lionel Jones, fall to the ground. Hutcherson then observed defendant standing with a gun in his hand. There were streetlights on both 16th Street and in the alley. Hutcherson watched defendant and observed his profile as he ran towards 16th and Homan and southbound down the alley. Hutcherson then returned to the vacant lot and waited until the police arrived.
At trial, Hutcherson testified that she identified defendant in a lineup on May 30, 1984. She stated that she was pretty sure that defendant was the person she saw shoot the victim. Hutcherson testified that she had observed the defendant in the community prior to the date of the shooting. She also stated that she had known the victim, Lionel Jones, for 15 years and Darryl Tapes for a few years. Hutcherson further stated that the person she saw holding the gun in the vacant lot on the night that Lionel Jones was killed was not Darryl Tapes.
Darryl Tapes also testified on behalf of the State. Tapes testified that he had known Lionel Jones for eight years prior to his death. He also stated that he was friends with defendant for six-years. On the day of the shooting, Tapes was with defendant and Jones in the vicinity of 16th Street and Homan. The three men were sitting on a porch when defendant and Jones got into an argument and began fighting. The fight was prompted by an argument concerning money defendant owed Jones for drugs Jones purchased for defendant. Jones and defendant exchanged words, and Jones kicked defendant. The three men then went their separate ways. Tapes and Jones met later that evening in the vicinity of 16th Street and Christiana. They went to the Holly Restaurant and had dinner until approximately 8 p.m. After leaving the restaurant, Tapes and Jones took the bus and returned to 16th Street and Homan. As Tapes and Jones crossed the street, they heard a gunshot. They were near the alley next to the vacant lot when Tapes heard the first shot. Tapes looked back and saw defendant standing approximately 40 or 50 feet away with his arm extended and his fingers curled around what looked like a gun.
Tapes further testified that after hearing the first shot and seeing defendant, he and Jones began to run. As Tapes continued to run eastbound on 16th Street, he heard another shot, looked back and observed Jones on the ground in the vacant lot. Tapes then ran to a nearby house to inform Jones' girlfriend that he had been shot. Tapes returned to the vacant lot and later went to the hospital where Jones had been transported. At the hospital, Jones' girlfriend accused Tapes of the shooting and the police handcuffed him and took him to the police station. Tapes stated that while at the police station, officers took scrapings from his hands.
Finally, Tapes testified that he had prior convictions for aggravated battery and misdemeanor theft. He further stated that he had two auto theft cases pending. Tapes stated that his testimony in the present matter was in exchange for the State's recommendation of a two-year minimum sentence in his pending cases.
Chicago police officer Terrence Thedford testified that on October 15, 1983, he was assigned to investigate the shooting death of Lionel Jones. Thedford took Tapes into custody at the hospital after the victim's girlfriend implicated him in the shooting. Thedford stated that although gunshot residue samples were taken from Tapes' hands, he was never arrested or charged in the shooting. Thedford testified that Tapes informed him that defendant was the person who shot Jones. Based on the information provided by Tapes, Thedford went to defendant's home on October 16, 1983, but was unable to locate him.
Thedford then had a stop order placed on defendant so that he would be brought in for questioning if he was arrested on any other matter. Thedford failed to secure a warrant for defendant's arrest because Tapes would not cooperate and provide the necessary interview required by the State's Attorney's office. Thedford testified that he received a phone call from an attorney who indicated that the defendant would surrender himself voluntarily on October 24, 1983. Defendant did not surrender on that date. However, Thedford ultimately ...