Petition for Writ of Certiorari — Torres v. United States

Supreme Court, U. $,

,ti? Fk Ge

JUN 27 1574

MICHAEL ROGAN

Ye

————

In THE

Supreme Court of the United States

Octroser Term, A.D. 1973

No. 73-6972

JAMES ALLEN,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

James J. DoHERrty,

Public Defender of Cook County,

407 Chicago Civic Center,

Chicago, Illinois 60602,

(312) 443-6350,

Counsel for Petitioner.

Rowatp P. Atwin,

Assistant Public Defender,

Rosert B. THOMPSON,

Law Student, IIT - Chicago-

Keut College of Law,

Of Counsel.

Midwest Law Printing Co., Chicago 60601, Financial 63988

LEM we

TABLE OF CONTENTS

PAGE

JURISDICTION 2

QUESTION PRESENTED 2

CONSTITUTIONAL PROVISIONS INVOLVED .... 2

STATEMENT

REASONS FOR GRANTING THE WRIT .................. 6

The Introduction Of Un-Cross-Examined Prior

Recorded Trial Testimony Of The Murder Victim

At Petitioner’s Trial Denied Petitioner Due Proc-

ess Of Law And The Right To Confrontation ...... 6

CONCLUSION 9

APPENDIX—

Opinion of the Supreme Court of Illinois ........ la-12a

List Or AutuHoriTies CITED

California v. Green, 399 U.S. 149 (1970) 8

Mattox v. United States, 156 U.S. 237 (1895) ................. 7

Fourteenth Amendment to the Constitution of the

United States 2,6

Sixth Amendment to the Constitution of the United

States aa

Illinois Revised Statutes, Ch. 38, Sec. 8-4 (ec), 1974... 7

Illinois Revised Statutes, Ch. 38, Sec. 8-4 (c)(1), 1971 7

a ha AR

In THE

Supreme Court of the United States

Ocroser Term, A.D. 1973

No.

Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF ILLINOIS

Petitioner, James Allen, respectfully prays that a writ

of certiorari issue to review the judgment of the Illinois

Supreme Court, affirming the judgment of the Circuit

Court of Cook County. The judgment of the Circuit Court

of Cook County is not reported. The opinion of the Su-

preme Court is reported at ...... Ill. 2d ......, 309 N.. 24 544

(1974). The opinion of the Illinois Supreme Court is in-

cluded as an appendix io this petition.

aiiltines

JURISDICTION

The judgment of the Illinois Supreme Court was en-

tered on March 29, 1974. The jurisdiction of this Court is

invoked under and pursuant to 28 U.S.C., See. 1257 (3).

QUESTION PRESENTED

Whether the petitioner was denied due process of law

and his rigut to confrontation by introduction into evi-

dence of the highly prejudicial un-cross-examined prior

recorded trial testimony of the murder victim.

CONSTITUTIONAL PROVISIONS INVOLVED

Sixth Amendment to the Constitution of the United

States:

“Tn all criminal prosecutions, the accused shall en-

joy the right ... be confronted with the witnesses

against him.”

Fourteenth Amendment to the Constitution of the Unit-

ed States:

“... nor shall any State deprive any person of life,

liberty, or property, without due process of law... .”

<a

ORR AR ERE,

saliias

STATEMENT

Petitioner was charged by the Cook County, Illinois

Grand Jury with the offense of aggravated battery and

attempted murder of Oliver Singleton. A jury returned

a verdict of guilty on both charges. Prior to judgment

and sentencing Oliver Singleton died of the wounds al-

legedly inflicted by the petitioner. The petitioner was

subsequently reindicted for the murder of Oliver Single-

ton. A jury returned a verdict of guilty. Judgment was

entered on the verdict and the petitioner was sentenced

to 100 to 200 years in the Lllinois State Penitentiary.

At trial police officers testified that they had informa-

tion that persons driving a new Buick planned to rob

a Thillens armored truck. The robbery was to occur when

the truck stopped to deliver money to the Bell and Howell

plant in Lincolnwood. (A. 4) At approximately 5:00 p.m.

on the evening of January 24, 1969, twenty police officers in

various unmarked cars and trucks positioned themselves

in the parking dots around the Bell and Howell plant.

(A. 4-5, 6)

About 6 p.m. the Buick arrived at the plant and parked

in the north-south drive in front of one of the buildings.

The defendant was in the back seat of the car. On the

day before he had been solicited by Tyrone Oby and

Larry Gibson to join them in their plan and he agreed.

(A. 85) Oby drove and Gibson was in the front pas-

senger’s seat. After waiting for about an hour, Gibson

said that they must have missed the truck and he thought

they should leave. Oby finally agreed. (A. 90) They be-

Soe owe | ates See ea Bat? | AL

ET FE BAIS BOLE MOLES AE GOP NLS RON CIEE GEIR ITN TOR I Ne ERMAN Ante

a oe)

gan to leave the plant and as they did the command ve-

hicle gave the order to converge on the Buick. (A. 6)

The unmarked car driven by the deceased pulled diago-

nally across the north-south drive on the south end. (A.

6-7) The police told the occupants of the car to stop. Oby

ignored the command and continued driving. At this point,

if is uncertain from the testimony who fired first. The de-

fendant’s statement to the prosecutor indicated the po-

lice fired first, and Oby began returning fire. The deceased

partner corroborated this story. Several other officers

testified that flashes of gun fire erupted from the front

seat of the auto first. The police then barraged the car

with their high powered weapons.

Two officers testified they shot through the rear win-

dow of the auto towards the deceased’s position. (A. 61,

64) The defense contended one of these rounds struck

the deceased. :

When the shooting ended, Oby was dead behind the

‘wheel. Gibson, who was wounded, tried to lift his gun and

he was shot five more times and died. (A. 40, 59) The

petitioner was lying on the rear floor of the Buick. He

was wounded slightly.

Oby’s .45 automatic had been fired three times and

Gibson’s .357 Magnum had two spent rounds in the cham-

ber. (A. 48-49, 51) The defendant was lying on a fully

loaded AR-15 with one round in the chamber and nine-

teen rounds in the clip. (A. 47-48, 56-57)

At the earlier triai for aggravated battery and at-

tempted murder Oliver Singleton testified from a stretcher

that he was hit by a shot fired from the car occupied by

‘

SREP ESRD ENGR LEY UDI RLU RS Ornate enn nearer te

. Nat et ange’

a eS

petitioner. Defense Counsel waived cross-examination. At

the trial for his murder, Oliver Singleton’s testimony was

introduced over the objection of the defendant.

On direct appeal to the Supreme Court of Illinois, based

on procedural rules thea in effect, petitioner argued

that he was denied his right to confront one of the prose-

cution’s principal witnesses. The Supreme Court consid-

ered the issue on its merits and affirmed. As to the con-

tention raised in this petition, the court said:

The issues concerning which Singleton’s testimony

was offered were the same in both trials. These con-

cerned, primarily, the fact that he was wounded by

a shot fired from the Buick. We conclude that the

prior testimony of Officer Singleton was properly |

admitted. and that the defendant was not denied his

constitutional right of confronting the witness.

.

—_ . sik. sles isa lt tii ied thats hia bi ae AR RR AIR CE gah ta EOS

— hpguan aide oi

PDececentinriesnatesidinisucae oe Wie, Winton’ iwi mnsies cnr haveidoes

pore |

© ORCS RA ATES

a

REASONS FOR GRANTING THE WRIT,

THE INTRODUCTION OF UN-CROSS-EXAMINED PRIOR

RECORDED TRIAL TESTIMONY OF THE MURDER VICTIM

AT PETITIONER’S TRIAL DENIED PETITIONER DUE PRO-

CESS OF LAW AND THE RIGHT TO CONFRONTATION.

The novel and heretofore undecided question presented

by this case is whether a murder victim can, by the State’s

use of a transcript of his un-cross-examined testimony in

another case prior to his death from wounds allegedly in-

flicted by petitioner, appear as a witness at a trial of

petitioner for his own murder without depriving peti-

tioner of effective cross-examination under the Sixth and

Fourteenth Amendments. Petitioner here was of course

totally unable to confront face to face and cross-examine

the voice from the grave of the person he was accused of

killing.

The unique nature of this case is of course the fact

that in an ordinary murder case the State is not given

the gratuitous benefit of the dead victim’s highly incrimi-

nating testimony. To this extent a ruling favorable to

petitioner in this case will in no way hinder effective and

well-settled patterns of prosecution in murder cases.

The unusual facts of this case show that petitioner not

only was deprived of his right to cross-examine the dead

victim at the murder trial, but that petitioner did not in

fact cross-examine the victim at the earlier trial on the

charges of aggravated battery and attempted murder.

To hold, as the lower court did, that petitioner at the

first trial had the right to cross-examine the victim but

re A CME

CORO EN Ce Kes Eh er te oe rs pees Beelates

=

chose not to exercise that right is to miss the point. The

thrust of this argument is that the decision to waive

cross-examination was made in the context of a trial for

attempted murder and aggravated battery (and not mur-

der) at which the issues and stakes were different.

Of prime importance is the fact that at the earlier trial

petitioner was exposed to a maximum sentence of twenty

years.* At the murder trial, on the other hand, he was

exposed to an indeterminate sentence and in fact received

a sentence of 100 to 200 years. The exposure to a lesser

potential sentence at the earlier trial could very well

have affected counsel’s decision to waive cross-examina-

tion of the bed-ridden and obviously seriously injured wit-

ness. The risk of antagonizing the jury by cross-examining

the incapacitated witness had to be balanced against the

potential exposure if the verdict was unfavorable. Faced

with a potentially far-greater sentence in the murder case

however, it is fair to say that counsel’s decision to cross-

examine or not, would not necessarily have been the same.

It is unfair to hold petitioner to a decision made in an-

other case involving a different ultimate question on a

different charge subject to a different penalty.

Petitioner candidly points out that this Court has held

that admission of the prior recorded trial testimony of

a witness who dies prior to a subsequent trial does not

violate the Confrontation Clause. Mattox v. United States,

156 U.S. 237 (1895). Later case dicta also support the

* Although Illinois Revised Statutes, Chapter 38, Sec. 84 (c),

1974, provide for an indeterminate sentence, the statutes in effect

at the time of both trials, Ill. Rev. Stai., Ch. 38, See. 8-4 (ce) (1)

1971, allowed a maximum penalty of twenty years imprisonment

for attempted murder.

iit

ibe

Sey Ute thc ie menial

opie beh BE

v, Pika: eee

ee

position that where a witness has become unavailable

through death, use of his prior testimony is permissible.

California v. Green, 399 U.S. 149 (1970).

What these cases did not and had no occasion to de-

cide, however, is whether petitioner may be forced to

face the un-cross-examined prior recorded voice from the

grave of a murder victim at a murder trial. Here the

doctrine of necessity does not apply, for the murder vic-

tim is never a necessary “witness” in a murder case.

Petitioner’s right to effective cross-examination of wit-

nesses should not be subordinated to the fortuitous and

wholly novel circumstance where a murder victim dies

only after trial of a defendant for the lesser offense of

attempted murder.

To be balanced against the absence of justifiable neces-

sity is the highly prejudicial nature of the voice-from-the-

grave testimony of a murder victim. The emotional effect

upon the jury, hearing the dead person pointing an ac-

cusatory finger at the defendant, must be overwhelming.

Sympathy for the victim surely led the jury to place

unequal emphasis on his testimony.

To be distinguished also is the so-called dying declara-

tion rule. The admissibility of dying declarations rests

upon wholly different grounds, namely, the fact that hu-

man experience shows that a person imminently in danger

of and conscious of death is not likely to lie. This cir-

cumstance is not present here, for at the earlier trial for

aggravated battery and attempted murder, coming as it

did ten months after the date of the alleged offense, the

victim had no sense of impending death. The testimony

in this case was not a dying declaration.

GF ele) a EIS Be Pe Aah

~~

The rule allowing admission of the prior recorded tes-

timony of an unavailable witness has already been recog-

nized as a sometimes necessary limitation on the right to

confrontation. This exception should not be extended to

murder cases where the benefit to the prosecution is small

indeed but the potential for prejudice flowing from ad-

missions of the testimony is extremely high. On balance,

Due Process favors exclusion of the dead victim’s prior

recorded testimony.

For these reasons and to consider this issue on the

novel and unusual facts of this case, certiorari should be

granted.

CONCLUSION

For the reasons urged herein, it is respectfully re-

quested that a writ of certiorari issue to review and

reverse the judgment of the Supreme Court of Illinois,

entered herein.

Respectfully submitted,

James J. DonHeEnty,

Public Defender of Cook County,

407 Chicago Civic Center,

Chicago, Illinois 60602,

(312) 443-6350,

Counsel for Petitioner.

Ronatp P. Atwix,

Assistant Public Defender,

Rosert B. THompson,

Law Student, IIT - Chicago-

Kent College of Law,

Of Counsel.

June 26, 1974

Se ee a eR rere

~——

betel

mn? SAFES.

Seiiei Pichi 8 08 IPI LAL LIED DOBRO. Bp BG OG Bot a8

pea

—-la—

APPENDIX A

Docket No. 44468—Agenda 8—September, 1973.

The People of the State of Illinois, Appellee,

v. James Allen, Appellant.

Mr. Justice Ryan delivered the opinion of the court:

The defendant, James Allen, was convicted of murder

in a jury trial in the circuit court of Cook County on Sep-

tember 17, 1970. He was sentenced to a term of from 100

to 200 years in the penitentiary. The defendant appealed

directly to this court under our rules then in effect. 43

Til.2d R. 603.

On January 24, 1969, the defendant and two others,

Larry Gibson and Tyrone Oby, entered the Bell & Howell

plant premises in Lincolnwood in a late-model Buick. Oby

drove, Gibson was in the front passenger seat and the

defendant was lying on the floor of the back seat. They

were armed and planned to rob a Thillens armored truck

which they thought was due to arrive at the plant about

6:00 P.M. to cash paychecks. Oby parked the car in front

of one of the buildings and the three waited for the arrival

of the truck. A fourth conspirator, Nathan Wright, pro-

ceeded to the general vicinity in another automobile, which

was to be the “get-away” car.

The Chicago and Lincolnwood Police Departments had

received information concerning the proposed robbery,

and when the defendant and his co-conspirators arrived

on the scene, some 20 police officers were waiting for them

in concealed positions. Gibson was armed with a .357 mag-

num revolver; Oby with a .45 automatic pistol and the

defendant with an AR-15 semi-automatic rifle, and the

Cd

—2a—

(Supreme Court Opinion)

police had received information that the men would be

armed with these weapons.

The Thillens truck did not appear, and, after waiting

for more than an hour, the defendant and his eo-conspira-

tors decided to leave. As they started to do so the police

department command vehicle ordered the police cars to

converge on the Buick. One police vehicle blocked the road

and an officer in another vehicle by the use of a “bull-

horn” announced that they were police officers and directed

the vehicle to stop and for the occupacts to throw out their

guns. The Buick stopped, started moving rapidly in reverse,

and then came to a stop. Shooting erupted from the Buick,

and the police returned the fire. During the shooting Of-

ficer Singleton of the Chicago Police Department, who

along with his partner had been in another police vehicle,

was wounded. From this wound he subsequently died. The

defendant was prosecuted for the murder of Officer Single-

ton.

During the shooting Oby, who was driving the Buick,

was killed. Three shots had been fired from his .45-caliber

automatic pistol. Gibson, who was in the front passenger

seat, was wounded. As the police started to open the front

door, Gibson raised his weapon and was shot and killed.

There were two spent cartridges in his .357-caliber mag-

num revolver. The defendant was lying in the rear seat

of the Buick on the AR-15 rifle. There were 19 rounds of

ammunition in the magazine and one round of ammuni-

tion in the chamber. The rifle when fully loaded holds 20

rounds in the magazine and one round in the chamber.

Another magazine containing 20 rounds was found in the

back seat of the car.

Pease oa

—Ja—

(Supreme Court Opinion)

Officer Singleton lived for about 10 months following

the shooting. During this time the defendant had been |

charged with attempt to murder Officer Singleton. At that

trial Officer Singleton testified. Later at the trial for the

murder of Officer Singleton, the testimony of the officer

given at the previous trial was read in evidence over the

defendant’s objection.

The defendant and Nathan Wright were charged with

murder in a two-count indictment. The first count charged

that the defendant and Wright committed the offense of

murder in that they intentionally and knowingly shot and

killed Singleton with a gun “in violation of Chapter 38,

Section 9-1, of the Illinois Revised Statutes 1967.” The

second count charged that the defendant and Wright com-

mitted the offense of murder in that they shot and killed

Singleton with a gun knowing that such shooting with a

gun created a strong probability of death or great bodily

harm to Singleton “in violation of Chapter 38, section

9-1(a)(2), of the Illinois Revised Statutes 1967.”

The defendant contends that there is no evidence that

he fired a shot and that he could therefore not be found

guilty of the offense charged in either count of the indict-

ment. He contends that the only theory that would support

his conviction is one that in some way would hold him

accountable for the acts of some other person.

The record does not support the contention that the

defendant did not fire a shot. As noted above the AR-15

semi-automatic rifle when fully loaded has 20 rounds in

the magazine and one in the chamber. The defendant’s

weapon when seized had 19 rounds in the magazine and

one in the chamber. The bullet that had wounded Single-

ton had passed through his body and was not recovered,

PETRA WIERD LI IE it

—4q—

‘(Supreme Court Opinion)

so no ballistic identification could be made. However, an

officer at the scene of the crime testified that following

the shooting he had examined the three weapons taken

from the Buick automobile and that there was an odor

or burnt powder on all three weapons, including the AR-

15 semi-automatic rifle. Also a ballistic expert from the

Chicago Police Department testified that he had exam-

ined the rifle and its barrel contained powder residue.

There is, therefore, evidence from which the jury could

conclude that the defendant had fired his weapon. How-

ever, as discussed later, it is not necessary to find that

the defendant fired the shot that wounded the officer.

Under the facts of this case the defendant was accountable

regardless of who fired the shot.

As to accountability, defendant contends that the State

had to prove beyond a reasonable doubt that he performed

some affirmative act in aiding and abetting the murder.

Relying on People v. Shields, 6 Ill.2d 200, and People v.

Ramirez, 93 Tll. App. 2d 404, the defendant contends that

mere presence at the commission of the crime “is not cul-

pable.” The defendant urges a more narrow interpretation

of our accountability statute (Tll. Rev. Stat. 1967, ch. 38,

par. 5-2) than is justified.

We have recently rejected an argument similar to de-

fendant’s. In People v. Johnson, 55 Tll.2d 62, we held that

where murder is committed during a robbery all particip-

ants in the robbery are deemed guilty of murder and it is

immaterial who fired the fatal shot. (See also People v.

Weber, 401 Ill. 584; People v. Armstrong, 41 IIl.2d 390;

People v. Golson, 32 T1l.2d 398; People v. Bongiorno, 358

Ill. 171.) We likewise held in Johnson that if a killing

PRR TS

—da—

(Supreme Court Opinion)

is committed in the course of an escape or prior to the

time that the perpetrators of a robbery had “won their

way to a place of safety” each conspirator is guilty of

murder. See also People v. Golson and People v. Bongiorno.

There is evidence here of conduct by the defendant

other than mere presence at the scene of the crime. He

actively participated in the preparation for and the at-

tempted fulfillment of the plan to rob the Thillens money

truck. His own statement details the preliminary discus-

sion and planning of the robbery. In preparation there-

for he learned how to operate the AR-15 rifle he was

to use. He stole license plates to put on the Buick that was

to be used in the robbery. Fully armed with the rifle he

traveled with his conspirators to the Bell & Howell park-

ing lot where he with his conspirators waited for their

intended victim. When frustrated, they attempted to

escape, and during the attempt Officer Singieton was shot.

His involvement bares no resemblance to that of the de-

fendants in Shields and Ramirez. Evidence that the defend-

ant voluntarily attached himself to a group bent on illegal

acts with knowledge of its design supports an inference

that he shared the common purpose and will sustain his

conviction of an offense committed by another. People v.

Rybka, 16 Tll.2d 394.

The defendant contends that he was indicted under sec-

tions 9-1(a)(1) and 9-1(a)(2) of the Criminal Code and

was charged with having shot and killed Officer Singleton

and with having shot Singleton with a gun knowing that

such shooting created a strong probability of death or

bodily harm. He was not indicted for felony murder under

section 9-1(a)(3). (Ill. Rev. Stat. 1967, ch. 38, par. 9-1

APL GOS Mie

— an

(Supreme Court Opinion)

(a)(3).) However, the jury was instructed on the theory

of felony murder. Section 9-1 provides:

“(a) A person who kills an individual without law-

ful justification commits murder if, in performing the

acts which caused the death:

(1) He either intends to kill or do great bodily harm

to that individual or another, or knows that such —

acts will cause death to that individual or an-

other; or

(2) He knows that such acts create a strong probabil-

ity of death or great bodily harm to that in-

dividual or another; or

(3) He is attempting or committing a forcible felony

other than voluntary manslaughter.”

The defendant contends that felony murder is a distinct

crime from murder as defined in sections 9-1(a)(1) and

(a) (2) and since he was not charged with felony murder it

was a denial of due process for the court to instruct the

jury on that crime. Defendant contends that it is reversible

error to instruct on a crime not charged in the indictment.

This argument has likewise been previously considered

by this court and answered contrary to the defendant’s

position. In People v. Rosochacki, 41 I1).2d 483, the de-

fendant had been charged with murder as defined in sec-

tion 9-1(a)(1) and the jury was instructed as to what

constitutes murder under section 9-1(a)(2) and (a)(3).

This court stated at page 492: “We find that the defendant

here was charged with murder and convicted of that crime,

and even if a variance did exist between the type of mur-

me aa Saad SLO MPD SII PT LM IOGED 0

—{a—

(Supreme Court Opinion)

der charged in the indictment and the types described

in the instructions, it would not vitiate the conviction un-

less it was of such a character as to mislead the defendant

in his defense or expose him to double jeopardy. [Cita-

tions.] There is no evidence in this case whatsoever that

the defendant was misled in his defense, nor did counsel

at any time during the proceedings request additional

time, allege surprise, or claim that it was impossible for

him to prepare a defense to the proof being offered against

him.” See also People v. McKee, 39 Ul.2d 265; People v.

Nelson, 33 Tll.2d 48; People v. Figgers, 23 Tll.2d 516.

Under section 9-1 there is but one crime of murder,

not three separate and distinct offenses as tiie defendant’s

argument assumes. Each of subparagraphs (1), (2) and

(3) under section 9-1(a) describes the mental state or the

conduct of the defendant which must accompany the acts

which cause the death. If the defendant were charsed with

murder under subparagraph (a)(1) and acquitted, he could

not again be charged and tried for the murder of the same

individual under subparagraph (a)(2) or (a)(3). Thus,

there is no possibility that the defendant in this case could

have been twice put in jeopardy. Also, the provision of our

statute covering the effect of a former prosecution (Ill.

Rev. Stat. 1967, ch. 38, par. 3-4) prohibits a subsequent

prosecution of the defendant under such circumstances,

The record does not show that-the defendant was in

any way misled by the indictment in the preparation of

his defense. He obviously was aware of the felony-murder

theory of the State from the opening statement through

the instructions to the jury. He never objected thereto nor

did he allege surprise or ask for a continuance for the

ENE ETE IL MES HE OTE ALM PPLE DORI AEG OY ALLY re LOS AM TIER eS

(Supeme Court Opinion)

purpose of preparing a defense to this charge. The con-

ference on instructions reveals that the defendant was not

surprised by the felony-murder theory. Objections to the

felony-murder instructions were not made on the basis

of this contention. It was therefore not error for the court

to instruct the jury under section 9-1(a) (3).

The court also gave the State’s instruction No. 19, which

instructed the jury that if the initial shot was fired by

the defendant or one for whose conduct he was legally

accountable and that the police officers retaliated, it was

immaterial as to who fired the shot that killed Officer

Singleton. The defendant, under the law, would be legally

resposnible for the death. It had been the defendant’s

theory of defense that the shot which wounded Officer

Singleton had been fired by another police officer. The

defendant now contends that instruction No. 19 was an

erroneous statement of the law and that the giving of the

same was reversible error.

The defendant’s post-trial motion in reference to the

State’s instructions alleges: “The court erred in giving the

.State’s instructions that were objected to.” The transcript

of the conference on instructions reveals that there was no

objection to the State’s instruction No. 19. Twice in the

transcript of the conference on instructions it is revealed

that there was apparent agreement between the prosecutor

and defense counsel that the State’s instruction No. 19

would be given without objection and that the State in

turn would withdraw its instruction No. 14, which was a

general accountability instruction. The first instance was

when the State’s instruction No. 14 was being discussed:

—Ia—

(Supreme Court Upinion)

“The Court: And 14 is withdrawn?

Mr. Novelle: Our 14 is withdrawn. That is with-

drawn in conjunction with 19, which is giveu without

objection.”

Later when instruction No. 19 was being considered:

“Mr. Novelle: 19 is given, with no objection, with

our withdrawal of 14.”

Thus, not only was the State’s instruction No. 19 not

objected to by the defendant, it was apparently given pur-

suant to an agreement between the prosecutor and the

defense counsel. The defendant cannot complain of the

instruction given by agreement. People v. McGregor, 26

Tll.2d 239.

We further note that previous decisions of this court

support the statement of the law contained in Instruction

No. 19. In People v. Payne, 359 Ill. 246, at 255, the court

stated: “It reasonably might be anticipated that an at-

tempted robbery would meet with resistance, during which

the victim might be shot either by himself or someone else

in attempting to prevent the robbery, and those attempting

to perpetrate the robbery would be guilty of murder.”

In support of this statement the court relicd upon its

previous decision in People v. Krauser, 315 Ill. 485.

Also the Committee Comments to section 9-1 of the Crim-

inal Code (S.H.A., ch, 38, see. 9-1, Committee Comments,

p. 9 (1972)) indicate that it was the intent of those who

drafted the felony-murder section of the statute to in-

corporate therein the holding in People v. Payne. The

Comments state: “It is immaterial whether the killing in

such a case is intentional or accidental, or is committed by

—10a—

(Supreme Court Opinion)

a confederate without the connivance of the defendant * * °

or even by a third person trying to prevent the commis-

sion of the felony.” In support of the last statement the

Committee cites People v. Payne. We therefore hold that

the defendant in this case may be held liable for the death

of Officer Singleton whether the fatal shot was fired by

a co-felon in the furtherance of the attempted robbery

or by another police officer in opposition to the attempted

robbery.

The defendant contends that he was denied his consti-

tutional right to confront a witness against him when the

testimony of the deceased Officer Singleton which had

been taken at a prior trial was admitted into evidence.

Officer Singleton lived for 10 months afier he was shot.

The defendant had been indicted and tried for attempted

murder. Although Officer Singleton was in extremely poor

physical condition, he testified at the defendant’s prior

trial. He stated that he was shot immediately after gunfire

had erupted from the Buick automobile and that the shot

that hit him came from the Buick. Although defense coun-

sel had an opportunity to cross examine Officer Singleton

at that trial, he chose not to do so.

The defendant relies on Pointer v. Texas, 380 U.S. 400,

13 L. Ed. 2d 923, 85 S. Ct. 1065, to support his contention

that he was denied the right to confront the witness against

him. However, the Supreme Court in Pointer, in discussing

this subject, stated: “The case before us would be quite

a different one had Phillips’ statement been taken at a full-

fledged hearing at which petitioner had been represented

by counsel who had been given a complete and adequate

—lla—

(Supreme Court Opinion)

opportunity to cross examine.” 280 U.S. at 407, 13 L. Ed.

2d at 928.

In Wigmore, Evidence (3d ed. 1940), sec. 1398, it is

stated: “[I)t is well and properly settled that depositions

and former testimony—assuming always that there has

been a due cross examination—are admissible for the

State in a criminal prosecution, without infringing the

Constitution.” See also Wigmore, Evidence (3d ed. 1940),

sees. 1402, 1403; McCormick, Evidence (2d ed. 1972), sees.

253 and 255; People v. Jackson, 41 Tll.2d 102.

The defendant contends that because of Singleton’s

poor physical condition at the former trial he was not able

to cross examine him. Prior to the officer testifying at the

former trial the court conducted an in camera hearing to

determine whether he was able to testify. The court con-

eluded that he was and he did testify. No restriction was

placed upon the defendant’s right to cross examine Single-

ton. The fact that he chose not to do so cannot now be

said to constitute a denial of his right to cross examine.

The defendant was represented at the former trial by the

same counsel that represented him at the murder trial.

The issues concerning which Singleton’s testimony was of-

fered were the same in both trials. These concerned, pri-

marily, the fact that he was wounded by a shot fired from

the Buick. We conclude that the prior testimony of Officer

Singleton was properly admitted and that the defendant

was not denied his constitutional right of confronting the

witness.

The defendant finally contends that the sentence im-

posed is excessive. We do not agree. This was not a mur-

—1l2a—

(Supreme Court Opinion)

der which resulted from an argument or a domestic quarrel

and committed by a person who had never been in trouble.

This murder was the end result of a well-planned and

organized serious crime for which the defendant came

armed with a high-powered weapon. As a result a Chicago

police officer was killed. The defendant was not a first

offender. He had been previously sentenced to the House

of. Correction on a theft charge, and almost immediately

upon his release he was again convicted of theft and sen-

tenced to the Illinois State Farm at Vandalia. Within a

few months after his release from that institution, he was

arrested on a felony charge and convicted and sentenced

to the penitentiary for a term of from 1 to 3 years. Soon

after his parole he was involved in this incident involving

the death of Officer Singleton. His first conviction was in

April, 1967. The shooting occurred on January 29, 1969,

less than 2 years later. There were two other convictions

between the two dates. The defendant had not proved to

be receptive to rehabilitative influences, a fact which the

court may well have considered when imposing sentence.

This court has said many times that the trial court is in a

superior position to make the determination as to the

sentence and that the authority of the reviewing court to

reduce the sentence should be applied with considerable

caution and cireumspection. (People v. Sprinkle, 56 Tll.2d

257; People v. Taylor, 33 Ill.2d 417, 424.) We do not

think that under the circumstances of this case this court

should disturb the sentence imposed by the trial court.

The judgment of the cireuit court of Cook County is

affirmed.

Judgment affirmed.