delivered the opinion of the court:
This is a direct appeal from the circuit court of Cook County which, after a jury trial, adjudged defendant Charles Clark guilty of the murder of John Collins, a Chicago police officer, and, pursuant to the jury’s recommendation, sentenced him to death.
During the trial, Roger Van Schaik testified on behalf
Chicago police officer Napoleon Hunter stated that on December 13, 1967, he received a radio call to the effect that a man had been shot in the gangway at 7808 S. Kenwood. When he arrived, he found the man and helped place him in a squad car to be taken to Jackson Park Hospital. Officer Hunter found a man’s green hunting cap in the gangway which, he testified, was subsequently sent to the crime lab. He then went over to the Sears parking lot and after talking with some people there, proceeded to a 1967 Pontiac Catalina in the lot. Upon inspection, it was determined that the left vent window of the Pontiac was damaged and open.
Mrs. Ruth Kent stated for the State that she was present in the Sears parking lot at the time in question,
Robert Pulizzi testified that he and a friend, Edward Buchsbaum, went to the Sears store on the evening of December 13, 1967. As they walked from their car toward the store entrance, Pulizzi heard the sounds of an argument to his left. He turned and observed a white man leaning over a car with his back to the witness and also saw a Negro man holding a white woman in front of him. At
On cross-examination Pulizzi testified that he had told two detectives on the night of the occurrence that the two men were 30 to 45 feet from him as they ran past, but that he had then been wrong. He further admitted that he had estimated the assailant’s age at about 40, but at the trial estimated the defendant to be perhaps 35 years old. It was brought out that he had been told by another witness, the decedent’s wife, that the defendant was younger than 40.
Edward Buchsbaum testified that he was with Robert Pulizzi in the Sears parking lot at the time in question. As they were walking to the store entrance, he heard someone say “I’ve got one too. I am a policeman too.” He observed a Negro1 man holding a white woman in front of him on one side of a car. On the other side with his back to the witness was another man. He heard a shot fired by the Negro, who had a gun in his right hand. He noticed that the other man had a gun also. After he heard the first shot, he ducked between two cars, and when he looked up he noticed that the two men had started running in a westerly direction through the parking lot. They ran past Buchsbaum while he was ducked down between two cars. The Negro was wearing an army type field jacket and a hunting cap. He stated that the cap found by Officer Hunter appeared to be the one in question. Buchsbaum identified, on a photograph of the Sears parking lot introduced in evidence, the relative locations of the people involved in
The decedent’s widow, Mrs. Barbara Collins, testified for the People that she and the decedent had gone to the Sears store on the evening of December 13, 1967. Upon leaving the store, they walked to their 1967 Pontiac Catalina which was parked in the Sears parking lot at the east end thereof. They observed a man bending over the vent window on the driver’s side of their car. Prior to December 13, 1967, the left front vent window of their car had been in perfect operating condition. When this man noticed their approach he started to walk away from the car, whereupon the decedent intercepted him and inquired as to what he had been doing by the Collins car. The decedent had taken out his gun before reaching the man and was holding it behind his back. When the man, who was Negro, noticed the gun, he said “Oh, you have a gun. Well, I have one too,” stepped back, reached into his coat, and pulled out a small, black, snubnosed gun. He pointed it at the decedent, who told him to drop the gun, that decedent was a police officer. The Negro man yelled that he too was a police officer and admonished the decedent to drop his gun. The Negro then grabbed Mrs. Collins around the neck with his left arm and held her in front of him. The decedent backed away and repeated his
On cross-examination Mrs. Collins admitted that she originally told the police that the offender was about 6 feet tall and 40 years old, but that she had subsequently revised that estimate. She further stated that the defendant, standing up, did not appear to be 6 feet tall. Prior to her testimony she had talked with the other witnesses in the State’s Attorney’s office concerning the general impressions of the defendant. She discussed defendant’s age with witness Pulizzi.
One of the instructions tendered by the defendant and given by the court instructed the jury that the credibility of a witness could be impeached by showing a prior statement at variance with his testimony and the jury could consider this fact in determining what weight to accord to that testimony.
The defendant’s age was stipulated at 25 years. It was further stipulated that if the pathologist who performed the post-mortem on the decedent would testify he would
Sgt. Louis Vitullo testified on behalf of the defense that he was a microanalyst at the Chicago Police Department crime lab, that he made a scientific examination of the cap found by Officer Hunter, and found no trace materials present thereon which could be identified as referable to defendant. Indeed it appeared that there were no trace materials discovered at all.
The defendant’s sister, Mrs. Ada Turner, testified that she was at a lineup on January 2, 1968. Before a short white man identified her brother she saw Detective William Parker stand behind the defendant and put his hand behind the defendant’s shoulder. Her brother was asked to repeat the sentence “I am a police officer too” three times, although others in the lineup were apparently required to repeat the phrase only once. Mrs. Turner’s testimony was corroborated in this regard by Fred Robinson, a friend of the family of defendant, and by Mrs. Cleo Williams, defendant’s common-law wife with whom he had been living for 5 years. Mrs. Williams further testified that the defendant was home with her between 8 and 10 P.M. on December 13, 1967. She also said that her mother, her brother Joseph, and her sister-in-law Diedre spent some time with her in her apartment that evening. She testified that defendant ceased living with her on December 14, 1967, the day after the shooting.
The defendant testified in his own behalf that he was born in Chicago, attended Chicago Vocational School and learned the machinist’s trade, that he got out of school in 1959 and spent three years in the army after which he was honorably discharged. After his discharge, he attended the Allied Institute of Technology, learning more about the machinist’s trade. Thereafter, he was employed by the H.K. Porter Company and later Eastman Kodak Company as a machinist. He also worked for the Electro-Motive
On cross-examination, defendant testified that he was 5 feet 7 inches tall. However, and over objection by the defense, he was measured during the trial as being 5 feet 10 inches. The authenticity and accuracy of the tape measure employed for such purpose was not established at the trial. In this connection, defendant subsequently introduced, over the State’s objection, a county jail identification card stating, inter alia, that his height was 5 feet 7 inches. Defendant testified that he had been measured in his bare feet at the jail, but no one testified as to the accuracy of the procedure employed by the jailers in making his measurement.
Mrs. Diedre Barrett, a sister-in-law of Mrs. Cleo Williams, testified on defendant’s behalf that on December 13, 1967, she was visiting with her mother-in-law, Mrs. Audrey Barrett, who lived in the apartment below Mrs. Williams. She saw defendant at 7:30 P.M. and again at 8:00 P.M. when she and her husband visited Mrs. Williams.
Defendant’s mother testified that defendant came to live with her about 10 days before Christmas in 1967.
Mrs. Audrey Barrett, the mother of Mrs. Cleo Williams, testified that she saw defendant several times during the evening of December 13, 1967, and was certain that he hadn’t left her daughter’s apartment all evening. She stated that she went to the apartment at about 7:30 or 8:00 P.M. along with Mrs. Williams’s three children, Diedre and Joseph Barrett, and their baby. On December 14, 1967, the witness asked defendant to move out, and he did so. She further testified that police searched her daughter’s apartment on January 3, 1968. It was further brought out that Mrs. Barrett had told police on January 4, 1968, that defendant had been at her daughter’s home during the evening of December 13, 1967, and that thus he could not have committed the offense in question.
In rebuttal, Detective William Parker testified for the State that he was present at the two lineups heretofore mentioned. At no time did he walk behind the lineup before Buchsbaum identified defendant, and at no time during either lineup did he touch the defendant on the shoulder. Detective Parker’s testimony was substantially corroborated by police officer Stanley Adams, who conducted the lineups in question, and Detective John Sullivan, who was also present at both lineups. On cross-examination of Adams, it was brought out that at a preliminary hearing he had stated that Detective Parker had placed his hand on defendant’s shoulder after he had been identified by Mrs. Collins at the second lineup. Officer Adams testified that he had been mistaken in that earlier statement.
Testimony was also given during the hearing on defendant’s motion for a new trial. Joseph Nisivaco stated that he was a bailiff during defendant’s trial and was present in the courtroom at about 5:00 P.M. while the jury
Defendant contends that, at the time of his trial, it was error for the trial court to allow the State to exercise any peremptory challenges concerning the rejection of prospective jurors during the voir dire. This argument is predicated upon the following circumstances: Prior to August 11, 1967, subsection (e) of section 115 — 4 of the Code of Criminal Procedure (Ill.Rev.Stat. 1965, ch. 38, par. 115 — 4(e)) specifically provided that during the selection of juries in criminal cases “The State shall be allowed the same number of peremptory challenges as all of the defendants.” On August 11, 1967, the subsection was amended to change the number of peremptory challenges which could be exercised by defendants at trials in certain situations. The amendatory legislation as finally enacted, however, failed to include the theretofore existing sentence allowing the State the same number of peremptory challenges as the defendants. (Ill.Rev.Stat. 1967, ch. 38, par. 115 — 4(e).) However, effective August 6, 1968, such sentence was re-enacted. (Laws of 1968, p. 43.) From these events, defendant, who was tried in May of 1968, maintains that during the period between August 11, 1967, and August 6, 1968, the State had no right to exercise peremptory challenges in a criminal prosecution. Accordingly, when the State attempted to exercise its first peremptory challenge in this case, defendant objected, but the trial court overruled same and stated that “The State will have 20 peremptory challenges,” of which 16 were used. Defendant’s argument on this point is ingenious, but not persuasive. It is to be noted that Rule 5 of the Rules of
Defendant maintains that the State has not proved him guilty of the offense charged beyond a reasonable doubt. In light of the testimony of the four eyewitnesses who positively identified defendant as the Negro man wielding a gun in the Sears parking lot on the evening of the murder, we cannot agree. This court has heretofore held that the positive identification by one witness who has ample opportunity for observation is sufficient to support a conviction even if his testimony is contradicted
Defendant next questions the propriety of the witnesses’s in-court identification testimony, largely on the ground that he was the only Negro at the counsel table when he was identified in court as the offender. He contends that the trial court should have held an in-court lineup, using several Negro men with characteristics similar to those of defendant. We cannot accept such argument. As stated by the Supreme Court of Washington, “Defendant’s racial attributes were a mere identifying characteristic. We can envision white defendants who could well be
Defendant next urges that his conviction must be reversed because the assistant State’s Attorney was allowed to measure defendant in the presence of the jury with a tape measure, the accuracy of which not having earlier been established. In this connection, defendant also claims error in the prosecutor’s comment to the effect that defendant, thus measured, was 5 feet 10 inches tall. The measurement of the defendant in such fashion, coupled with the prosecution’s gratuitous comment as to the result of the measurement, may have been improper. However, we do not believe the matter was so prejudicial to defendant as to warrant reversal. What we observed in People v. Crump,
Mrs. Cleo Williams testified that defendant had been at her house at the time of the killing. However, the court would not permit her to testify that she had told this to
Although not within the purview of the hearsay rule, the exclusion of the statement the witness made to the police officer is supported by the general rule that a witness may not testify as to statements he made out of court for the purpose of corroborating his testimony given at the trial relative to the same subject. (People v. Wesley,
During his summation, the prosecuting attorney suggested that the evidence implied that defendant had been supporting his child by committing criminal acts every night similar to the conduct shown by the evidence to have occurred on December 13, 1967. Defendant contends that such remark was unwarranted from the evidence adduced at the trial and was so prejudicial and inflammatory as to require reversal of the conviction. While we agree that the remark was unjustified and uncalled for, we do not believe it constitutes reversible error. It appears that this comment was merely made in passing and was not repeated. Under such circumstances, we do not think it can be said that this isolated remark could have influenced the jury’s verdict on the question of guilt. The same may be said of the prosecutor’s isolated and unstressed reference to defense counsel during a colloquy among court and counsel as “an experienced lawyer who knows all the tricks of the trade,” after which the prosecutor was admonished to refrain from such comment. This also applies to his inquiry to the jury: “What are you going to tell this community and what are you going to tell 12,000 Chicago policemen? What choice should they make?” As we noted in People v. Swets,
Defendant next urges reversal because of the failure of the trial court to ascertain whether the jury wished further instructions during their deliberation and the existence of
During the voir dire examination the prospective jurors were asked whether they had any scruples against imposing the death penalty. The State excused some jurors peremptorily who stated that they had such scruples and others were challenged for cause. Defendant maintains that his conviction by a jury so qualified in this manner must be reversed. He contends that jurors without scruples against the death penalty are more prone to vote guilty and are thus biased in favor of the prosecution. In support of this contention, the trial court, during the hearing on the motion for a new trial, heard the testimony of Professor Hans Zeisel of the University of Chicago Law School indicating that in his opinion such jurors were indeed more likely to vote guilty than those who maintain scruples against the imposition of a death sentence. Professor Zeis el’s survey, entitled “Some Data on Jury Attitudes Toward Capital Punishment” was introduced in support of his opinion. Such surveys, including the original draft of Professor Zeisel’s pamphlet, were submitted to the United States Supreme Court in Witherspoon v. Illinois,
Following oral argument of this case it was held under advisement pending the determination by the Supreme Court of the United States of the question of the constitutionality of the imposition of the death penalty. The Supreme Court has now determined this question. In light of its conclusion that a defendant may not be sentenced to death under the Illinois statute (Moore v. Illinois (1972),
Accordingly, we affirm the judgment of conviction of the defendant and vacate the sentence of death. Following the rationale of People v. Speck (1972),
Affirmed and remanded, with directions.