People v. Kilgore

• Decision Date: 07 November 1973
• Docket Number: No. 58141,58141
• Citation: 305 N.E.2d 328,15 Ill.App.3d 862
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry KILGORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 328

305 N.E.2d 328

15 Ill.App.3d 862

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry KILGORE, Defendant-Appellant.

No. 58141.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 7, 1973.

Rehearing Denied Dec. 4, 1973.

Edward M. Genson, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Chicago, (Kenneth L. Gillis, Kurt P. Klein, Chicago, of counsel), for plaintiff-appellee.

JOHNSON, Justice.

Defendant-appellant, Larry Kilgore, was jointly indicted with Ricky Smith, Henry Horton, and Norvell Ealey for the murder of Michael Causher. At the close of defendants' evidence, motions for directed verdicts of not guilty were granted to all except Larry Kilgore. The jury found Kilgore guilty, and he was sentenced to the penitentiary for a term of not less than 15 nor more than 30 years. On appeal, Kilgore presents several issues for review but the only one that we find it necessary to discuss is whether the defendant's guilt was proved beyond a reasonable doubt.

Michael Causher was shot on May 17, 1969 at approximately 9:30 p.m. in front of the Royal Laundromat at 5056 South Cottage Grove Avenue in Chicago. It was stipulated that Causher died as a result of a gunshot wound to the head. On June 10, 1969, defendant Larry Kilgore was arrested and charged with the murder of Causher.

The testimony of witnesses concerning the identity of the person who shot Michael Causher may be summarized as follows:

Michael Woodson, 17 years old, is a former member of a gang called the Disciples. He testified that earlier on the night of May 17, 1969, he had been drinking vodka with several of his friends, including the victim, Michael Causher. At approximately 9:00 or 9:30 p.m., Woodson was sitting in Ward's Restaurant at 51st Street and Cottage Grove with Causher and Leon Ligon. While Woodson remained inside, Ligon and Causher went outside. Soon afterwards, Woodson heard two shorts and Ligon burst back into the restaurant and said that Causher had just been shot. As Woodson emerged from the restaurant, he saw a tan Ford Falcon with a Black P Stone emblem going east on 51st Street towards Drexel Avenue. Woodson testified that he also saw a tall, husky man with a bush haircut, whom he first observed from a distance of almost one block, running east on 51st Street. Woodson could not identify the man he saw run nor the occupants of the car.

Officer Floyd W. Peterson, called as a rebuttal witness by Kilgore, testified that he interviewed Woodson shortly after the killing and that Woodson did not mention a tall, heavy man running down 51st Street at that time.

Leon Ligon testified for the People that at approximately 9:00 or 9:30 p.m. on May 17, 1969 he was sitting in Ward's Restaurant. He heard two shots, glanced up, and saw through the restaurant window a man running across Cottage Grove. The witness described the man as approximately six feet tall, heavily built, Negro, wearing a natural haircut and dark clothing. Ligon testified that he could not identify the person he saw running away.

Michael King testified that he was in a liquor store at 51st Street and Cottage Grove at approximately 9:00 or 9:30 p.m. that evening when a girl came in and told him one of his friends had been shot. King ran outside and saw a badge in back of a tan Ford Falcon going east on 51st Street. He first observed the car when it was almost one block away. King testified that he did not see anyone running down 51st Street and that he could not identify the occupants of the car.

James Edwards testified that he saw the entire incident and that the shooting occurred between 8:00 and 9:30 p.m. on May 17, 1969. Edwards stated that he was standing about 10 or 15 feet from the victim when the shots were fired. Shortly before the shooting, Edwards saw a brown Falcon station wagon with five occupants drive up on the opposite side of Cottage Grove. He said the four defendants were in the car but that he did not know the identity of the fifth occupant. According to Edwards, Norvell Ealey jumped out of the car, ran across the street, yelled 'Blackstone' and fired two shots from the gun in his hand. Michael Causher fell, and Ealey ran east on 51st Street with the automobile following. The car then caught up with Ealey and he got in. Edwards further testified that, several days after the shooting, Kilgore told him: 'We got 'Jay Hawk' (i.e. Michael Causher) and the same thing that happened to him will happen to you.'

On cross-examination, Edwards testified that he, Causher, Leon Ligon and Michael Woodson were all members of a rival street gang called the Disciples on May 17, 1969. Edwards described Ealey, the man he saw run away after the shooting, as being five feet seven or eight, slender, dark complected and about 18 or 19 years old.

Edward Levy testified that at approximately 9:30 p.m. on May 17, 1969, he was walking west on the south side of 51st Street between Cottage Grove and Drexel Avenue. He heard two gunshots and observed a tall, heavy Negro man with a natural haircut running east on the opposite side of 51st Street. Levy identified that man as defendant Kilgore. Levy testified that it was dark and the man was 'a good way from him,' but that he saw the man tuck a gun in his coat. Levy first testified that the man turned north at Drexel, later he said that the man turned south at Drexel, and finally he stated that he did not see in which direction the man turned at Drexel. Levy saw neither a car nor a slender man going east on 51st Street.

Yvette Winchester was walking with Levy when the incident occurred. She testified that she heard two shots then glanced briefly across the street and saw someone with a husky build and a bush haircut running between Cottage Grove and Drexel. She testified that she could not identify the man and 'couldn't really tell' whether or not he was a Negro. Miss Winchester stated that she is nearsighted and cannot see anything far away.

Juanita Campbell, an attendant at the Royal Laundromat for the past five years, testified for the defendant, Kilgore. She stated that she closed the laundromat between 8:45 and 9:15 p.m. on May 17, 1969. As she was leaving, she saw Michael Causher and another young man she didn't recognize standing near the front of the laundromat. Mrs. Campbell testified that when she reached the alley a few feet north of the laundromat, she heard two shots, turned around and saw a man put something in his belt, walk across the street, get into a car and drive off. Mrs. Campbell testified that Larry Kilgore, whom she already knew from seeing around the laundromat, Was not the man she saw get in the car; the man she saw was much older, much stouter, and shorter than Kilgore.

Alibi witnesses testified on behalf of all four defendants. Several witnesses testified that defendants Ricky Smith and Henry Horton were at a dance at the YMCA located at 53rd Street and Dorchester when the shooting occurred. The sister and mother of Norvell Ealey testified that he was at home watching television at the time of the incident. Officer Stuart Bradshaw testified that he saw Kilgore and four or five other young men standing in front of a barbecue place located at 47th and Ingleside at approximately 10:00 p.m. on May 17, 1969. Lerry Kilgore testified that he was in an apartment at 4701 Ingleside with his girl, Carrie Brown, on May 17, 1969 until 9:30 p.m. and that he went downstairs to the barbecue house between 9:30 and 10:00 p.m. Kilgore also denied threatening Edwards and stated that it was Edwards who had told him several days after the incident to 'start digging your grave' next to Causher's.

At the close of defendants' evidence, the court directed verdicts of not guilty for Ealey, Horton and Smith and instructed counsel to make no comment to the jury suggesting their discharge. After deliberating for six hours, the jury found Kilgore guilty of murder.

Kilgore contends, Inter alia, that he was not proved guilty beyond a reasonable doubt. He argues that prejudicial in-court identification without lineup was unconstitutionally obtained and that blatantly contradictory eyewitness accounts were insufficient to support his conviction.

Kilgore's identification as Causher's killer was based largely on the fact that he fitted the description of a man several witnesses saw run away from the scene. Michael Woodson, Leon Ligon, and Yvette Winchester testified that they saw a 'tall, husky man with a natural and wearing dark clothing' run east on 51st Street shortly after they heard two shots.

We note, first of all, that the observation conditions that existed on the night in question were less than ideal since it was dark and all of the witnesses were some distance away from the man when they first observed him. Miss Winchester, who was across the street from the man when she saw him, testified that she was nearsighted, could not see...