People v. Murray
| Decision Date | 25 November 1975 |
| Docket Number | Nos. 58138,59174,s. 58138 |
| Citation | 340 N.E.2d 186,34 Ill.App.3d 521 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Treadest MURRAY (Impleaded), and Sam E. Dillon, (otherwise called Samuel E. Dillon) (Impleaded), Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
James J. Doherty, Public Defender, Cook County, Chicago, for Murray; Stanley Sacks, Asst. Public Defender, Chicago, of counsel.
Edward M. Genson, Chicago, for Dillon.
Bernard Carey, State's Atty., Cook County, Chicago, for plaintiff-appellee; Kenneth L. Gillis, Jerald A. Kessler, Asst. State's Attys., of counsel.
Indictment No. 70--1247 charged defendants-appellants Treadest Murray (hereinafter defendant or, when distinction is required, Murray) and Sam (Samuel) E. Dillon (hereinafter defendant or, when distinction The basic facts from which the charges arose may be summarized as follows: At some time between 8:45 and 9:30 P.M. on the night of 17 April 1970, two black men entered the Wonder Club bar at 317 West Division Street in Chicago. At that time there were about 50 to 60 customers in the bar, who were being served by three bartender-waiters and two floorwalkers. One or both of the men began firing guns. After several shots had been fired, the two men left the bar. John Sterling was shot twice and died shortly afterwards from one of his bullet wounds. Tommie Akins, Robert Chatmon, and Barbara King each sustained one bullet wound.
is required, Dillon) with the murder of one John Sterling (two alternative counts: Ill.Rev.Stat.1969, ch. 38, par. 9--1(a)(1) and par. 9--1(a)(2)) and with the aggravated batteries of Tommie Akins, Robert Chatmon, and Barbara King (three counts: Ill.Rev.Stat.1969, ch. 38, par. 12--4(b)(1)). Both defendants pled not guilty to each count. After a jury trial, in which defendants were represented by separate counsel and in which each interposed a separate alibi defense, both defendants were acquitted of each charge of aggravated battery, but were convicted of murder. Post-trial motions for a new trial and arrest of judgment were heard and denied. After a hearing in aggravation and mitigation, each defendant was sentenced to a term of from 14 to 20 years in the Illinois State Penitentiary. Each defendant then filed a separate appeal and each was represented on appeal by separate counsel. The appeals were consolidated for oral argument and opinion.
In the separate appeals, Murray presents two issues for review; Dillon presents four (actually five) issues, of which two are the same as the two presented by Murray. The two common issues, themselves interrelated, are:
1) The State's evidence was legally insufficient to prove the guilt of each defendant beyond a reasonable doubt.
2) The verdicts of guilty of murder but not guilty of each count of aggravated battery are logically inconsistent in that the only question before the jury was whether the respective defendant was identified as one of the two assailants; this logical inconsistency contributes to a reasonable doubt as to the guilt of each defendant.
One of the additional issues presented by Dillon is closely related to the two common issues. Dillon contends that the verdicts are not only logically inconsistent but are also legally inconsistent; since they are legally inconsistent, the conviction of murder must, as a matter of law, be either reversed outright or at the least reversed and remanded for a new trial on all counts. These three issues focus our attention on the identification evidence adduced by the State at the trial and on the evidence adduced by each defendant at the trial as to his identification and as to his alibi. A detailed summary of the trial evidence is therefore necessary. 1
After the deceased's wife had testified as the State's 'life and death' witness, the State called Lee Liddell, who identified himself as a bartender working in the Wonder Club on the night of the shooting. He testified that, at about 8:30 P.M. on the night of Friday, 17 April 1970, he saw both defendants enter the Club, walk around it for about five minutes, and then On cross-examination, Liddell testified that one Wilbert Norman, a bartender for the Club, was working behind the bar when the two men first came in; he did not know exactly where Tolbert was either at that time or when the two men entered the second time. There were about 50 people in the Club, about 30 at the tables and about 20 at the bar, and it was noisy. The first of the two men to enter the first time had on a tan jacket and a sport shirt; he had no necktie and no hat. The witness did not remember the color of his pants or shoes. The witness did not recall the color of his eyes or the shape of his nose or jaw or the length of his hair. The second man was short and dark-complected; the witness did not recall the color of his pants or shoes or the type of coat he was wearing. They stayed about ten minutes, walked around the front half of the Club, and left by the front door. They re-entered about five minutes later. Both then had automatic weapons in their hands. They stayed for about ten minutes and shot up the place. It was at the police station that the witness had first described the two men to the police; he had not been asked to describe them before. He described them as Negroes, one wearing a light jacket and the other wearing The second occurrence witness for the State was Jelena Tolbert. He testified that, on the night of the shooting, he was working in the Wonder Club on the floor, waiting on tables. At about 9 or 9:30 P.M., Murray came into the Club. Murray was wearing a black jacket and a white tee shirt. Murray looked young to the witness, so the witness asked Murray if Murray had an I.D. card. When Murray said no, the witness told Murray that he would have to leave the Club, but that he could first use the washroom at the rear of the Club. Murray did so. The witness then saw Murray speak to Liddell for two or three minutes, but he did not know what was said. Murray then left the Club by the front door. He returned about three minutes later with Dillon. This was the first time that the witness had seen Dillon on that night; the witness recognized Dillon by a headband which he wore around his heard. When Dillon came in the front door of the Club, he had a gun held down by his side. When the witness saw the gun in Dillon's hand, the witness, still in the rear of the room, backed behind the bar through the rear entranceway to the bar, which was near the washroom at the rear of the Club. As a result, the witness did not see who fired the several shots. When the firing began, the witness dropped to the floor behind the bar. Before hiding behind the bar, however, the witness had seen Dillon in the aisle at about the mid-point of the bar, backing toward the front door. At that time, Murray was standing in the aisle alongside the telephone booth and Liddell; the witness did not see Murray with a gun. While the witness did not see who fired the shots, the first shot came from where Dillon was backing away toward the front door. There were 50 to 60 people in the Club (about 20 at the bar) and it was crowded. After the police came, the witness did not speak to them, but 15 or 20 minutes later, the police took the witness and Liddell to the police station. They put photographs on a table in a room, and then they left the room. The witness examined about 100 police photographs; he picked out photographs of Dillon and of Murray as depicting the two men who had entered the Club at the time of the shooting. State's exhibits Nos. 7 and 8 are two of those photographs. The police had not asked him for a description of the men. Before that evening, he had not known Dillon by name and had never before seen Murray. Just after the shooting, the witness had taken a .38 caliber revolver from a drawer behind the bar, had put it in his pocket, and had gone outside; he had not seen anybody outside, so he went back into the bar and replaced the gun in the drawer. He did not fire the gun that night nor had he ever fired it at any time.
leave. He was then standing alongside a telephone booth just to the left of the front door (from the point of view of one entering the Club by that door). 2 There were then about 50 people in the Club. He heard Dillon say to some person other than Murray (which person was unknown to the witness): 'There is the fellow who saw us the other night.' At about 8:45 P.M., both defendants entered the Club by the front door; the witness was still standing in the same place. Dillon walked in the aisle between the tables and the bar to about the mid-point of the bar; Murray followed a few feet in back of Dillon. Each defendant then simply pulled out an automatic weapon and began firing it. Dillon was about nine feet away from the witness, and Murray was about four feet away; Murray was opposite to and in front of the witness. One Jelena Tolbert, another employee of the Club working that night, was in the rear of the room. The witness heard five shots, after which defendants backed out the front door. Mr. Sterling was wounded; he had been sitting at the bar on about the second stool from the front end of the bar. The witness immediately called the police, who arrived in five to ten [34 Ill.App.3d 525] minutes. Within twenty minutes thereafter, the police took the witness and Tolbert to a police station where the witness examined about 100 police photographs and made a photographic identification of each defendant. The witness had occasionally seen Dillon in the Club prior to the night of the shooting. There was a handgun, which was owned by the witness' employer and for which the witness had a permit, kept in a locked drawer behind the bar; the witness did not fire that gun at any time on that night. The witness then identified certain State's exhibits as accurate photographs of the Wonder Club exterior
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