People v. Hister

• Decision Date: 10 June 1974
• Docket Number: No. 57803,57803
• Citation: 314 N.E.2d 562,20 Ill.App.3d 933
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cleo HISTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 562

314 N.E.2d 562

20 Ill.App.3d 933

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cleo HISTER, Defendant-Appellant.

No. 57803.

Appellate Court of Illinois, First District, Second Division.

June 10, 1974.

Ronald Butler, Thomas B. Donovan, Winston & Strawn, Chicago for defendant-appellant.

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Kenneth L. Gillis and William K. Hedrick, Chicago, of counsel.

LEIGHTON, Justice:

A two-count indictment charged Cleo Hister and Joe Newson with the murder of Richard Wilson. They were tried by a jury, convicted and sentenced, each to a term of 16 to 30 years. Newson took an appeal and another division of this court reversed his conviction because '(u)nder all the circumstances it cannot be said that the People's evidence proved that (he) was a party to the killing of Richard Wilson.' See People v. Newson, 133 Ill.App.2d 511, 518, 273 N.E.2d 478, 482.

In this appeal by Hister, he presents five issues. I. Whether he was proven guilty beyond a reasonable doubt. II. Whether reversal of Newson's conviction by another division of this court is ground for collateral estoppel in this case. III. Whether the trial court erred in denying defendant's motion for a directed verdict at the close of the State's case. IV. Whether the trial court erred in refusing to instruct the jury regarding circumstantial evidence. V. Whether a conversation between a court bailiff and a juror, during the jury's deliberations, so prejudiced defendant as to necessitate reversal of his conviction. We begin with a summary of the material evidence.

I.

On April 28, 1968, sometime near 10:00 P.M., Johnny Wilson was driving his automobile in the vicinity of West 65th Street and Harvard Avenue in the City of Chicago. He saw Joe Newson and Warren Parker pass in front of him and enter a nearby building. In his testimony, Wilson told the jury that Newson was carrying a package or bundle which appeared to contain a gun. Although he did not actually see one, Wilson said, 'I know it was a weapon he had.' Shortly thereafter, Wilson went into a nearby liquor store, made a purchase and then returned to his home. At about 10:00 P.M., he heard gun fire; and when he went to 305 West 65th Street, he saw his 15-year old son, Richard Wilson, lying on the street with a gunshot wound on the left side of his face. This wound caused Richard's death two days later.

During the evening of April 28, between 8:30 and 9:00 P.M., 11-year old Gregory Lee and Tony Lewis were tandem riding a bicycle when Lee saw defendant, Newson and four other persons in an alley on Normal Avenue between 65th Street and 65th Place. At that time, according to Lee, it was 'real dark outdoors.' Lee told the jury that he saw Newson with a shotgun. Then he said that Newson fired the shotgun at him and Lewis, causing him to take cover behind an automobile. Then Lee said that he saw 'Feenanny' (that is, Eugene Adams, another State witness) walking a bicycle along a street and that '* * * one of them, they shot Freenanny.' A short time later, Lee learned of the shooting in which Richard Wilson was wounded.

Between 10 and 10:30 the same evening, Jesse Parnell, a 14-year old eighth grader, was sitting on the porch of his home. He testified that Richard Wilson and Eugene Adams came to him and asked to borrow his bicycle. He let them have it; they drove off together. Then, Parnell was asked whether, before he saw Wilson and Adams, he saw '* * * anybody who is in court today * * *.' Parnell said he had not. Parnell was then asked to point out Newson. He did. After this, he was asked, 'Do you see anybody in court today you know?' The record shows that the court reporter did not hear Parnell answer. However, the assistant state's attorney who was asking the questions stated, 'Let the record reflect he said 'Fat Boy'.' Parnell then was asked if he had said that. He answered, 'Yes.' Shortly thereafter, he began to give unexpected answers to questions; he became confused and hesitant in his testimony. Therefore, on the State's motion, he was made a court witness and subjected to cross-examination.

Using leading questions, the assistant state's attorney asked Parnell if after Wilson and Adams had left, Newson '* * * and Fat Boy came up to your porch?' His answer was, 'I don't remember.' He was next asked, 'Did Fat Boy stick a shotgun into your face?' Parnell answered, 'Yes.' Then, in answer to questions for the State, Parnell told the jury that Newson and defendant left his porch and ran across 65th Street through a gangway between homes on Harvard Avenue. He said he ran behind them and saw Wilson and Adams on his bicycle riding on the sidewalk along 65th Street toward Yale Avenue. Parnell was next asked if when he saw Wilson and Adams, he saw defendant or Newson with anything in their hands. Parnell did not answer. Finally, the assistant state's attorney said, 'Jesse? Answer my question.' Parnell then said, 'I don't know.' Immediately thereafter, he was asked, 'Did you see a rifle or shotgun in Fat Boy's hand?' In answer, Parnell said he saw a shotgun in defendant's hands; that defendant shot the weapon at Wilson, discharging it and hitting him in the face. Soon afterward, Parnell said, defendant and Newson entered a yellowish automobile and drove off.

Parnell, still a court witness, was then questioned by defense counsel. He told the jury that when he ran from the porch to the corner of 65th Street and Harvard, he saw Hister behind a wall of a building and saw an arm sleeve extend out from behind the wall. He said he did not know where Newson was with relation to Hister, that he did not see Newson behind the wall and that he could see nothing behind the wall but the arm. He said he heard a gunshot and saw Adams run. He said that after the shot was fired, he ran back to his porch and saw no more; but when pressed, he said that after the shot was fired, he saw three persons run from the scene, enter and drive off in a yellow hard-top automobile. He testified that because of poor lighting conditions, he was unable to see the heads or faces of the three persons.

The next witness was 13-year old Dale Lee who testified that on the night in question she was with a group of friends on a porch near 65th Street and Harvard Avenue. At about 9:00 P.M., Newson came there and asked if anyone had seen Eugene Adams. Newson, according to Dale, said that Adams had stolen his television, and that for this, he 'was going to get' Adams.

Adams was the next State witness. He told the jury that Richard Wilson was his uncle and was with him most of the day, April 28. He said that at about 8:00 P.M., he talked with defendant and thereafter with Newson concerning a television set. Adams admitted that he and two others had stolen the set. A short time after the conversations, he and Wilson met some youths at 65th Street and Harvard and borrowed two bicycles, one from a Larry Whitmore and the other from a Steve Lannier, on which they rode away, separately. Adams told the jury that he did not know Jesse Parnell; and, on the evening in question, did not borrow a bicycle from him. However, the bicycle he was riding broke down, forcing him to 'walk' it. As he was doing so, Adams said that defendant came out of a gangway, running past him and saying, 'Burn that M.F.' At that point, Adams heard a gunshot. He saw other persons in the shadows, but he did not see Newson. After the gunshot, Adams said he fled the scene on foot, observing Wilson turn the corner and approach him. Adams told the jury that he crossed through a vacant lot on Harvard; and as he did, heard another gunshot. Adams denied he was riding double on a bicycle with Wilson.

The last State witness in presentation of its case in chief, was Dwight Gayten, also known as Tony Lewis. He testified that about 9 or 10 P.M., on the evening in question, he and Gregory Lee were riding the same bicycle when Newson and defendant accosted them at the corner of 65th Street and Stewart Avenue. Defendant asked for Eugnee Adams and, when an unfavorable response was givne, Newson drew a pistol and held Gayten and Lee at gun point 15 to 20 minutes until a passing police car afforded them the chance to escape. Gayten said that someone then fired a shotgun at them. After that, he went to the porch of a neighboring house, from which he heard two more gunshots. A short time later, according to Gayten, he saw defendant and Newson drive off in a 1962 or 1963 Chevrolet.

With the testimony of these witnesses and that of a pathologist who gave the shotgun wound as the cause of Richard Wilson's death, the State rested its case. Defendant's defense was an alibi. In its support, he called his mother, his brother, his sister and a young woman with whom he was living at the time. He testified to his whereabouts on April 28, 1968, between 6:00 and 1:00 P.M. He denied killing or participating in the killing of Richard Wilson; he denied ever knowing his co-defendant, Joe Newson; he denied that he had a nickname 'Fat Boy.' His sister, the only witness asked the question, told the jury that her brother had never been known by that nickname.

Newson's defense was also an alibi. In its support he called ten witnesses. In addition, he testified, gave the details of his whereabouts during the evening in question and denied ever knowing defendant. He told the jury, categorically, that he did not kill or participate in the killing of Richard Wilson. After both defendants rested their respective cases, witnesses in rebuttal and surrebuttal were called and testified in support of the State's claim that Newson was present at the time of and near the scene of the shooting. Some gave testimony concerning the description of the assailants; others testified to what they said was the residence of Newson and his brothers. This is the evidence from which defendant presents the issue whether the State proved, beyond a reasonable doubt, that in the...