Appeal from the Circuit Court of Cook County. Honorable William Cousins & Michael Bolan, Judges Presiding.
Petition for Leave to Appeal Denied October 6, 1994.
DiVito, Hartman, Scariano
The opinion of the court was delivered by: Divito
Presiding Justice DiVito delivered the opinion of the court:
Following a bench trial, defendant Gilden McClom was convicted of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1, now codified as 720 ILCS 5/9-1 (West 1992)) and was sentenced to 30 years in the custody of the Department of Corrections. On appeal, he contends that (1) the circuit court erred in denying his motion to quash his arrest and suppress his identification; and (2) the evidence presented at trial was insufficient because the identification was "vague, doubtful and uncertain."
At trial, the following evidence was presented. Marcella Hayes McNolling testified that her son, Benny Hayes, was 29 years old when he was killed. Alice Sims testified that on February 13, 1990, she arrived home from work at about 2 a.m., and relaxed in the living room of her first-floor apartment at 69th Street and Emerald Avenue in Chicago, reading a newspaper before going to bed. At about 3 a.m., she heard someone on the street yell "hey, hey." She then stood up and looked out her front window to see what was happening. From her window, she saw Hayes and three other men walking south along Emerald and another group of three men, including defendant, that had just turned the corner onto Emerald. She believed that someone in the second group had yelled in order to get the other group's attention. She quickly turned off the lights and kneeled in front of the window.
As Hayes and his companions turned to look to see who was calling them, defendant approached Hayes and grabbed him. Hayes broke away and tried to run north on Emerald toward 69th, one of his companions ran south, and the other two ran into a vacant lot next to Sims' apartment building and watched from behind the building. As Hayes was running away, defendant took out a "very small gun" and shot him in the back. Despite the wound, Hayes continued to run west along 69th street, until he collapsed at Halsted Street. Defendant and his companions stood still for a moment, and then ran north on Emerald across 69th Street.
She explained that defendant was standing approximately 20 feet away from her window when he shot Hayes and although it was dark outside, she was able to see clearly because the area outside was well-lit by two overhead streetlights and another light across the street. She also stated that both defendant and Hayes faced her apartment during the entire incident.
Still "nervous" from what she had witnessed, she "settled" for a while before going to bed. She did not call the police or tell anyone what she had seen because she was scared and did not want to get involved.
Three days later, she was interviewed by a Chicago police officer and she described the offender as being "short," "stocky," and "muscle bound." She also told the officer that the offender was wearing a white jacket with three stripes on the sleeves and that his hair was "combed back in curls." Six weeks later, on March 28, 1990, she went to the police station to view a lineup, and immediately recognized defendant as the shooter. Although she was positive that defendant was the shooter, she waited several minutes before identifying him because she was nervous, and then only said that she could not positively identify him. When investigators from the public defender's office came to speak with her before the trial, she told them that she "wasn't really sure" when she identified him because she was still in "shock" and just wanted to be left alone. Although she "didn't want to become involved," she decided to testify because she was "subpoenaed."
On cross-examination, she stated that on February 17, 1990, the day after first speaking with the police, she viewed a lineup that did not include defendant and identified another person. Although the record does not disclose what role she attributed to that person, it does reveal that she remembered that the man she recognized was one of Hayes' companions once the police informed her of that fact.
Chicago police officer Dennis Tooles testified that at approximately 3:10 a.m. on February 13, 1990, he observed a crowd standing in the street at the intersection of Halsted and 69th. When he entered the crowd, he found Hayes lying on the ground. When he asked Hayes what happened, he told him that he had been shot in the back. An ambulance then came and took Hayes to the hospital.
The State then presented the stipulated testimony of Dr. Shaku Teas, an assistant medical examiner, who determined that the cause of death was a gunshot wound to the left flank region of the back. A small caliber bullet perforated the kidneys, pancreas, and liver, and was recovered from the muscles in the right abdominal region. The State then rested.
Mack McClom, Jr., defendant's brother, testified for defendant that he would cut defendant's hair once a month and that in February 1990, defendant's hair was "pretty short." Although he sometimes wore it in braids, defendant never wore it in curls. At that time, defendant also had a full mustache and beard. When asked how he was able to remember February 1990 so ...