People v. Curtis (48 Ill. App. 3d 375, 1977)

Mr. JUSTICE ST AMOS

delivered the opinion of the court:

Defendants, Oscar Curtis and Louis L. Cokes, were charged by indictment with the offenses of minder and attempt murder in violation of sections 9 — 1 and 8 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, pars. 9 — 1, 8 — 4). Upon a joint jury trial both were found guilty as charged and judgments were entered on the verdicts. Defendant Curtis was sentenced to serve consecutive terms of confinement in the Illinois State Penitentiary of 75-90 years for the offense of murder and 15 years to life for the offense of attempt murder. Identical but concurrent prison terms were imposed upon defendant Cokes, to be served upon completion of other sentences currently pending and arising from prior convictions for unrelated offenses.

From entry of the judgments of conviction defendants appeal contending (1) that each was prejudiced by the State’s failure to comply with certain pretrial discovery orders in a timely fashion; (2) that the trial court erred in admitting into evidence a firearm allegedly employed in commission of the crimes charged in the indictment; (3) that the trial court improperly limited the scope of defendants’ cross-examination of certain witnesses; (4) that certain statements of the prosecution in closing argument were improper; and (5) that the sentences imposed must be made to conform to the Unified Code of Corrections. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(c).

A review of the evidence adduced in the case at bar reveals that during the late evening hours of October 14,1973, Mona Richardson and Vivian Shepherd were brutally assaulted in Garfield Park, Chicago, Illinois. The assailants attempted to strangle Richardson and, by wielding a broken bottle, inflicted severe lacerations about her neck before she was able to flee. Later that evening, the body of Vivian Shepherd was discovered in some shrubbery near the scene of the assault. She had been shot in the head and two shards of broken glass were found embedded in her slashed throat.

According to Richardson, she and Shepherd had been in the vicinity of Garfield Park on the date in question from approximately 3 p.m. until the time of the occurrence. A considerable portion of this time was spent in a store located at 13th Street and Kedzie Avenue where they watched television until 8 or 9 p.m. when they left to walk to a restaurant. Enroute they met and conversed with various people, including defendant Oscar Curtis, and two individuals identified as “Rabbi” and “Ricos.” Their conversation with the latter consumed approximately one-half hour.

Continuing toward the restaurant, Shepherd and Richardson again met defendant Curtis who was seated in the driver’s seat of a vehicle parked in an alley in the vicinity of Kedzie Avenue and 16th Street. Curtis beckoned to Shepherd, she approached the vehicle and spoke to Curtis outside the presence of Mona Richardson. Shortly thereafter Richardson rejoined Shepherd and the women entered the rear seat of the vehicle. Defendant Louis L. Cokes occupied the automobile’s front passenger seat.

The presence of the women having thus been secured, according to Richardson, to minimize the likelihood of being curbed by police, the group proceeded to a nearby house to permit Curtis to purchase an unspecified quantity of marijuana. Curtis then drove to Douglas Park where he paused for a period of 5 to 10 minutes before proceeding to Garfield Park. Curtis parked the automobile in a lot near the park’s field house.

Richardson testified that immediately thereafter, Curtis turned, trained a gun on the women and, remonstrating that “You bitches think you are all slick,” Curtis accused them of being “spies” for an individual identified as Larry Williams. Richardson described the weapon as a revolver with a brown or black handle and a “silver-like” barrel. The State introduced into evidence, over defense objection, a .32-calibre revolver owned by Curtis and recovered from the room in which defendants were apprehended. This revolver bore a yellow and white handle. Richardson indicated that she was “not exactly sure” that this exhibit was the firearm used in commission of the assault but noted that the “barrel part” resembled the gun wielded by Curtis. She also testified that this exhibit “may or may not be” the revolver used to shoot Vivian Shepherd.

Upon being confronted with this accusation the women protested their innocence. Curtis responded, “You know what the hell I am talking about. Don’t try to play crazy with me,” and ordered Shepherd to remove her clothes. She refused and indicated that to comply would prove futile since, “You [Curtis], going to kill me anyhow.”

Curtis then directed his attention toward Richardson, slapped her and ordered her to disrobe. She complied and removed her blouse. Richardson testified that at this point Shepherd asked permission to go to a bathroom located in the field house. Her request was granted but, at Curtis’ insistence, was accompanied by Cokes who had armed himself with Curtis’ weapon so as to insure Shepherd’s return.

Upon their return, Curtis again seized the weapon, put it to Shepherd’s head and pulled the trigger. The weapon apparently misfired and Shepherd was not injured. Curtis and Cokes conferred privately after which Curtis announced that he intended “to kill you all M_Fass.”

According to Richardson, Curtis then “grabbed Vivian, shoved her out of the car by the collar, throwed her on the ground and shot her.” Richardson was overcome and looked away. She too was then seized by Curtis, thrown from the vehicle and onto the ground where he attempted to strangle her. During this episode Richardson observed Cokes “stomping Vivian in the head.” He thereafter left Shepherd for dead and assisted Curtis in the latter’s struggle with Richardson.

To this end, he temporarily restrained Richardson while his accomplice sought a weapon. Curtis recovered a broken bottle, gave it to Cokes and thus armed Cokes attempted to cut the back of Richardson’s neck. Richardson continued to resist, prompting Curtis to exclaim, “This bitch won’t die. Give me the M_F_bottle. I am going to kill this little bitch before I leave out this park.” Cokes attempted to pass the bottle to Curtis but Richardson intercepted it and threw it aside. As Curtis sought another weapon, Richardson freed herself and ran to a nearby service station. Police were summoned and Richardson was transported to hospital facilities.

While at the hospital an unspecified quantity of heroin contained in nine “packets” of unspecified dimensions or weight was found in her clothing. She was also interrogated by investigating officers of the Chicago Police Department and was shown a series of seven photographs from which she identified photographs of defendants as depicting her assailants.

Pursuant to this investigation defendants were arrested on October 15, 1973, as they slept together in a bedroom of Curtis’ mother’s home. A revolver was recovered from a table in the room in which defendants were apprehended. This firearm was subsequently introduced into evidence at defendants' trial.

Upon questioning by the arresting officers, Curtis indicated that he had purchased the revolver in the early evening of October 14,1973, from an unidentified man for the sum of *50. While at the station house a pair of blue suede shoes were recovered from defendant Cokes after the arresting officers noticed unusual stains on the shoes. Police investigation of the area in which the body of Vivian Shepherd had been discovered led to the recovery of a portion of a broken bottle bearing blood stains. The shoes and bottle were placed in the custody of the Chicago Police Department Crime Laboratory (“Lab”) for chemical and physical analysis.

At defendants’ trial, Chicago Police Officer Vincent Lomorro of the Firearms Identification Unit testified that he had occasion to examine the revolver recovered from defendant Curtis’ living quarters. A comparison of bullets test-fired from the revolver with the bullet recovered from the head of Vivian Shepherd revealed that the latter shell bore identical class characteristics to the test bullets. The comparison also indicated that the bullet found in the victim’s head bore some individual characteristics of the test bullets. However, the mutilated condition of the bullet taken from the head of Shepherd precluded Officer Lomorro from making a conclusive determination that the mutilated bullet had been fired from Curtis’ revolver.

Also during the course of trial proceedings, microanalyst Mary Ann Mohan testified with respect to the various laboratory tests performed upon the physical evidence related to the assault of Richardson and Shepherd. Blood samples taken from Richardson were found to be Type A; similar analysis of blood samples taken from Shepherd were found to be Type B. Analysis of the stains observed upon defendant Coke’s shoes revealed that the stains were of human blood containing Type A and Type B antigens. Identical results were obtained from chemical analysis performed upon the blood found on the ground and the several pieces of glass recovered from the area in which Shepherd’s body was discovered. Hair fragments found on the pieces of glass were shown to bear properties similar to samples of hair taken from Vivian Shepherd. Examination of the properties of the glass found near the body of Shepherd in comparison with the particles of glass recovered from Shepherd’s neck led Mohan to conclude that these shards were “once part of a single unit.”

Dr. Epuil Choi testified that a post-mortem examination was performed upon the body of Vivian Shepherd. As a result of this examination Dr. Choi indicated that her death had been caused by a bullet wound through the temple which penetrated her brain, as well as by a deep laceration of her neck. Richardson revealed to the jury the scars of similar lacerations upon her neck.

Defendants did not testify in their own behalf. Defendant Cokes presented the testimony of David Daniels, an investigator employed by the Office of the Cook County Public Defender. He testified that he interviewed Mona Richardson on July 5, 1974, and that on this occasion she said that prior to the shooting Curtis accompanied Shepherd to the toilet.

Defendants initially contend that they were prejudiced by the State’s failure to comply with certain pretrial discovery orders in a timely fashion. Specifically, defendants assert that they did not receive copies of Lab reports summarizing analyses performed upon the aforementioned blood samples and physical evidence until after the commencement of trial proceedings; that defendants were surprised by much of these results; that such results substantially corroborated certain aspects of Mona Richardson’s testimony; and that the tardiness of the Lab report and the introduction of the broken bottle into evidence unfairly forced defendants into formulating a theory of defense during the course of the trial.

The State does not controvert the fact that the reports and evidence in question were within the scope of the pretrial discovery orders or the similarly undeniable fact that such orders were not complied with in timely fashion. The State, however, shirks its own responsibility for the delay, and lamely suggests that the Lab is an autonomous agency which must be deemed solely accountable for any tardiness with respect to the reports and that defendants themselves must bear responsibility for any resulting prejudice by failing to request a continuance. Examination of the record indicates that such a request for continuance was made on behalf of defendant Cokes and denied by the trial court during the course of trial proceeding.

An examination of the record reveals that the articles in question were recovered and placed in the custody of the Lab on or about October 15, 1973, and that defendants were thereafter indicted on charges that they murdered Shepherd and attempted to murder Richardson by “stabbing [them] with a broken bottle.” Defendants filed pretrial motions for discovery on December 11, 1973. Amended and supplementary motions for discovery were filed on March 15, 1974. It was not until July 8,1974, that the prosecution informed defense counsel of its request to the Lab to perform certain tests upon the relevant physical evidence and that such report was pending. No express mention was made of the existence of the broken bottle or the analysis thereon.

Prior to trial, on the morning of July 10, 1974, defense counsel proceeded upon a motion to suppress as evidence the revolver and articles of clothing undergoing analysis. The delay in the preparation of the laboratory reports was again the subject of conversation. Counsel for Cokes observed, “We still don’t have the laboratory report back. We expect it this afternoon according to the State’s Attorney.” Immediately upon the court’s ruling on the merits of the motion to suppress, evidence was taken before the jury in connection with the State’s case-in-chief. Defendants did not seek to delay the start of trial proceedings pending return of the laboratory reports. Presentation of the State’s case continued into the afternoon of July 11, 1974, at which time the aforementioned laboratory reports were made available to counsel for the State and defendants.

Supreme Court Rule 412(f) (g) provides a salutary means of insuring prompt and adequate disclosure to the accused of relevant material and information and places the burden of compliance squarely upon the prosecution. (Ill. Rev. Stat. 1973, ch. 110A, pars. 412(f) and (g).) This section provides:

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