People v. McTush
| Decision Date | 26 October 1979 |
| Docket Number | No. 78-725,78-725 |
| Citation | 397 N.E.2d 463,34 Ill.Dec. 7,78 Ill.App.3d 603 |
| Parties | , 34 Ill.Dec. 7 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John McTUSH and Lonzell Stone, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Ralph Ruebner, Deputy State Appellate Defender, Gary Jay Ravitz, Asst. Appellate Defender, Chicago, for appellant John McTush.
Bernard Carey, State's Atty., Cook County, Chicago, for the People; Marcia B. Orr, Paul C. Gridelli, Asst. State's Attys., Chicago, of counsel.
Defendants John McTush and Lonzell Stone were jointly indicted for the murders and armed robberies of two men and for burglary. McTush was tried before a jury and was found guilty of murder, (Ill.Rev.Stat.1975, ch. 38, par. 9-1), armed robbery (Ill.Rev.Stat.1975, ch. 38, par. 18-2), and burglary. (Ill.Rev.Stat.1975, ch. 38, par. 19-1.) Stone was simultaneously tried without a jury in a bench trial and was found guilty "in manner and form as charged in the indictment." Following a hearing in aggravation and mitigation, McTush was sentenced to a term of from 60 to 90 years imprisonment and Stone was sentenced to a term of from 25 to 50 years imprisonment. Both defendants appeal.
We note at the outset that the evidence adduced at the trials differ as to each defendant. It is therefore necessary that we recite the testimony at some length. For purposes of clarity, we will first present the pertinent evidence adduced at the suppression hearing and jury trial of McTush.
Prior to trial, McTush moved to suppress evidence of a photographic identification of him and any resultant in-court identification. Stone did not join in this motion. At the suppression hearing the following pertinent evidence was adduced.
For the defendant
On February 21, 1976, he was assigned to investigate a double homicide which occurred the day before at the Kar-Life Battery Shop at 6959 South Ashland in Chicago. In the course of his investigation a line-up was held on March 18, 1976. The line-up consisted of five men and included McTush. Terrence Watson, an eleven year old boy, and Ira Watson, his mother, separately viewed the line-up through a one-way mirror. Neither the boy nor his mother were able to identify any member of the line-up as a participant in the double homicide of February 20.
On May 24, 1976, he was present when Mrs. Watson and her son were interviewed by an assistant State's Attorney. While his mother waited in another room, Terrence was shown a photograph of a line-up conducted on February 21, 1976. Terrence identified Stone from the photograph. Terrence was then shown photographs of six individuals from which he identified McTush and stated that he had previously seen McTush at the line-up on March 18. Mrs. Watson was then shown these photographs. She identified Stone as "having all the physical characteristics and similarities" of the man she saw at the battery shop on February 20.
On cross-examination, Ridges testified that Terrence told him he previously did not identify Stone or McTush because he was afraid of what might happen to him and his family. Ridges noticed at the March 18, 1976 line-up that Terrence Watson appeared very upset and nervous. He further testified that sometime after May 24, Terrence Watson told him he knew McTush from his neighborhood prior to February 20, 1976.
At the conclusion of Ridge's testimony, the trial court found the photographic identifications of May 24 to be impermissibly suggestive and required counsel for McTush to elicit evidence of independent origin. Counsel for McTush called Terrence Watson to the stand.
On the evening of February 20, 1976, he was playing on the street outside of the Kar-Life Battery Shop. When he looked through the window of the shop, he saw David Thomas, an employee of the shop, hit McTush in the mouth. He knew it was McTush because he was familiar with McTush from the neighborhood.
After hearing this testimony by Terrence Watson, the trial court ruled that the photographic identification of McTush made by Terrence Watson on May 24 was impermissibly suggestive and would be suppressed. The trial court further ruled that an independent origin for Terrence Watson's identification existed and therefore an in-court identification of McTush by Terrence Watson would be permitted.
The following pertinent evidence was adduced at the jury trial of McTush.
At approximately 5:00 p. m. on February 20, 1976, he and his partner Officer Santucci responded to a radio call and proceeded to the Kar-Life Battery Shop at 6959 South Ashland, on the northeast corner of Ashland Avenue and 70th Street. The shop has windows facing both streets. Upon walking through the door on the 70th Street side of the shop, he saw a body lying face down on the floor. It was the body of David Thomas. He then proceeded to the rear work area of the shop and found the body of Dennis Harrison. After the arrival of his superiors, he began to question people gathering outside the shop.
On cross-examination, he stated that one of the people he questioned was Terrence Watson. According to Watson, two men were involved in the killing. One of the offenders wore a green coat with white fur trim and the other wore a black coat. The man with the black coat was approximately 18-19 years old. Watson also said that one of the offenders had a fight with David Thomas, a Kar-Life employee, inside the shop. On re-direct, he stated that Terrence Watson was very nervous when they talked.
He lives on the first floor of the apartment building on the south side of 70th Street across from the Kar-Life Battery Shop. While sitting in his living room around 5:00 p. m. on February 20, 1976, he saw a brown 1969 or 1970 Oldsmobile park on the south side of 70th Street. Two men got out of the car and walked toward the battery shop. The car's right front fender was damaged. He identified People's Exhibit 10 as a photograph of that car.
On cross-examination, he admitted that he failed to inform the investigating police officer of the damaged fender of the car.
He lives in the second floor apartment above John Tucker on 70th Street. On the evening of February 20, 1976, he was reading a newspaper at the seat near the front window of his apartment. Upon looking outside, he noticed a brown car with a black top parked on 70th Street. At that time, he observed the first three digits of the license plates on the car were either 846 or 648. The car had gained his attention because of its similarity to his wife's car.
On cross-examination, Thomas admitted that he did not know when the car was parked outside or who arrived in the car.
He was eleven years old on February 20, 1976. At approximately 5:00 p. m. on that day, he and a couple of friends were flying a kite on 70th Street just east of Ashland. He saw a brown Delta 88 Oldsmobile with a black top park on 70th Street. The car had a dent in the right front fender. The driver of the car was wearing a green leather coat with white fur trim and the passenger was wearing a gray leather coat. He identified in-court Stone as the driver of the car and McTush as the passenger. He had seen both defendants before that day. When they got out of the car, McTush crossed the street and entered the Kar-Life Battery Shop. Stone stood outside the battery shop. Watson went to the window of the shop and looked into the front area of the shop. He saw David Thomas, an employee of the shop, hit McTush in the mouth. McTush pointed a gun at Thomas and shot him several times at close range. At this point, Stone walked past Watson and went inside the shop. He saw Stone walk through the front part of the shop and enter the rear working area out of his view. He then heard three more gun shots. While Stone was in the work area, McTush was going through the pockets of David Thomas. Stone and McTush left the shop and were walking toward him to their car. As they were approaching, he fled east on 70th Street and then ran home. He identified People's Exhibit 10 as a photograph of the car he saw defendants driving that day.
On cross-examination, he denied telling the police on February 20 that he went to the window of the shop after he heard the first set of gun shots or that Stone was the man he saw inside the shop. He further denied telling the police that he ran as soon as Stone saw him. He told a police officer on February 20 that he had seen McTush before that day. He did not recall whether he told the assistant State's Attorney on May 24, 1976, that he knew McTush before February 20. He admitted he viewed a line-up on March 18, 1976, through a one-way mirror and did not identify anyone in that line-up as one of the offenders. On re-direct, he stated he was a "little bit" afraid when he saw David Thomas killed. He also stated he had seen McTush about four times prior to February 20, 1976.
She is the mother of Terrence Watson and was in their apartment on the evening of February 20, 1976. Their apartment is on the second floor of the building adjacent and north of Kar-Life Battery Shop on Ashland Avenue. When Terry was outside playing, she heard several noises that sounded like gun shots. She looked out of the window, which faced south, and saw a man standing outside of the Ashland Avenue window of the battery shop. The man was wearing a green coat with a white collar and a red cap. He entered the shop and went to the rear working area. She again heard noises which sounded like gun shots. After the shots, a man with a gray leather coat came out of the shop and then the man with the green coat exited. They walked south to the corner and turned east on 70th Street. Defendant McTush "strongly resembles" the man in the gray coat,...
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