Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Edward Asey, Donna Baker and Michael Parille were jointly indicted for armed robbery. Asey and Baker were tried at the same time but Asey was tried by a jury while Baker was tried by the court. Asey was found guilty and was sentenced to a term of 7 to 15 years in the penitentiary. This appeal is by him alone.
He contends: (1) improper evidence was admitted, (2) he was not proved guilty beyond a reasonable doubt, (3) the State's Attorney made improper comments before the jury, (4) the State's Attorney made an improper argument to the jury, (5) his counsel was incompetent, (6) he was prejudiced by his co-defendant pleading guilty during the trial and (7) an instruction to the jury infringed upon his constitutional privilege to decline to take the witness stand.
Shortly before 11 a.m. on January 28, 1964, three armed men entered the office of a life insurance company at 4146 West Chicago Avenue in Chicago. The manager and his assistant were in the outer office. The robbers ordered the two men to put their heads down on a desk and they complied immediately and did not look up. While one of the robbers stayed there, the other two went into the inner office where they confronted the cashier and several clerks. One of the two approached the cashier with gun in hand, told her to open the cash drawer, scooped up the money and took a bag containing checks ready for deposit. The robbers then left the office and were seen running through an adjoining parking lot.
Approximately 10 to 15 minutes later Police Officer Perri saw a woman, who was driving south on Cicero Avenue, go through a stop light at Madison Street. He followed in his squad car with the revolving light on top of the car turned on. At first he saw only the woman but when her vehicle reached Monroe Street he observed two men rise up, one in the front and one in the rear seat. The woman turned into Monroe Street, stopped the car and got out and the man in the front seat started to alight but Perri, who had just heard by radio of two robberies in his district, told him and the man in the rear seat to stay face forward in the auto and to keep their hands in full view. After talking briefly to the woman, Perri told the man in the front seat to get out with his hands in front of him. The man identified himself as Michael Parille, the owner of the vehicle. A police sergeant drove by and Perri, backing up and drawing his revolver, asked for his assistance. Perri ordered the man in the rear seat to get out, noticed something protruding under the side of his coat, touched it and felt a long object. The sergeant turned the man around and, his coat being open, saw the butt of a gun. The sergeant pulled the gun out and money in wrappers spilled to the ground. More money was found between the man's jacket and shirt and in his jacket pockets, and a bag containing a bundle of checks was taken from his belt. The man was afterwards identified as Asey.
The cashier and a clerk pointed out Parille in a lineup as one of the robbers but Asey was not identified by the cashier, the clerk or the office manager.
The defendant's first contention is that a photograph of Parille was improperly admitted in evidence. Parille, though indicted with Asey, was not tried with him. The clerk, the cashier and Officer Perri were shown Parille's photograph; the first two testified that he was one of the robbers and the latter testified he was with Asey in the automobile. The defendant contends that since he was not identified as a participant in the robbery, his guilt was established by the use of the photograph to prove Parille's participation in the crime and his association with Parille. He cites People v. Rezek, 4 Ill.2d 164, 122 N.E.2d 272 (1954) in support of his contention. Rezek was indicted with three others for armed robbery but was granted a separate trial. Several witnesses to the robbery were able to identify the others but did not recognize Rezek. The State's Attorney had the others brought before the jury for the witnesses to identify. The court stated that this testimony was not relevant to Rezek's guilt and that it was calculated to prejudice the defendant in the eyes of the jury.
In the present case the defendant did not object to the State's Attorney showing the photograph to the witnesses nor to the admission of it into evidence; hence, his contention need not be considered on appeal. People v. French, 33 Ill.2d 146, 210 N.E.2d 540 (1965). Moreover, the contention is without merit. Unlike the Rezek case, the identification of the co-defendant (Parille) and proof of the defendant's association with him were relevant to the issue of the defendant's guilt: the photograph was used to prove that Parille was one of the robbers and was with the defendant within 10 to 15 minutes after the robbery and less than two miles from where it occurred. Since these facts support an inference that the defendant was associated with Parille in the commission of the offense, the admission of the photograph was proper. Cf. People v. Keagle, 7 Ill.2d 408, 131 N.E.2d 74 (1955).
The defendant next argues that he was not proved guilty beyond a reasonable doubt. He stresses the facts that he was not identified as one of the three robbers, that about 15 minutes elapsed before Parille was apprehended and that Donna Baker, who was a woman and so could not have been one of the robbers, was with Parille and the defendant when they were caught.
A conviction can be sustained upon circumstantial evidence as well as upon direct evidence. People v. Russell, 17 Ill.2d 328, 168 N.E.2d 309 (1959); People v. Huff, 29 Ill.2d 315, 194 N.E.2d 230 (1963). The robber who stayed in the outer office could not be identified by the manager. He testified that ten seconds after the robbers entered his office he put his head down, he did not lift it while they were in the office and he did not see the man who pointed the gun at him well enough to describe him. The clerk had a side view of the third robber as he ran across the parking lot about 15 feet from her window; the cashier was about the same distance away and also had a side view. Neither witness was certain whether the third robber, whom they saw only in the parking lot, was the defendant. The testimony of these witnesses reasonably explained why they could not identify the robber who guarded the manager, and did establish that there was a third member of the gang. A short time after the robbery the defendant was found accompanying one of the robbers. They were in an automobile going away from the place of the robbery. They were hiding from view. The defendant had a gun in his belt; he also had in his possession checks and wrapped money stolen from the office and a bag like the one taken. From this evidence a natural and fair inference was that he took part in the robbery, that he was the one who stayed in the outer office. The jury did not err in concluding that the evidence was sufficient to establish his guilt beyond a reasonable doubt.
The defendant next complains of prejudicial comments by the prosecutor. The comments were made when the prosecutor identified one of the State's exhibits for the record. They were as follows:
"May the record indicate I am opening that envelope and withdrawing from it another envelope which has got Andrew J. Toman on the top. It has been crossed out. Underneath, contents of armed robbery "
The defendant contends that he was prejudiced because the jury knew that Toman was the Coroner of Cook County and therefore was left to speculate that somehow a murder was involved in the case, especially since in his opening statement the State's Attorney said, "Mr. Parille . . . is no longer with us" and no further explanation of his absence was given. The defendant also contends that the reference to the contents of the envelope as "contents of armed robbery" was improper.
Three of the State's exhibits were contained in envelopes bearing the name of Andrew J. Toman and when the State's Attorney introduced them for identification he mentioned this fact. The defendant did not object the first and third times. Since he failed to do so on these occasions, it is apparent that the objection he made to the second exhibit was to the phrase "contents of armed robbery" and not to the mention of Toman's name. However, even if the objection be considered as also referring to the latter point, we do not see where he was prejudiced. The defendant was not accused of causing or contributing to anyone's death; none of his victims or confederates was said to be deceased, and Toman's name had been crossed out on the exhibits. No inference adverse to the defendant could be drawn by the jury. Moreover, as the prosecutor was explaining what was written on the envelope, an objection was made and the court said, "Strike that. Jury disregard it." The prompt ruling of the trial judge removed whatever speculation might otherwise have arisen. The notation "contents of armed robbery" did not implicate the defendant in the robbery; it merely set forth the ...