Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD R. FINNEGAN, Judge, presiding. Judgment
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
This is an appeal by the defendants from a conviction of the crime of attempted robbery. The jury found them guilty as charged by the indictment. They were sentenced to not less than three, nor more than 12 years, in the Illinois State Penitentiary. They contend that they did not receive a fair trial and were not proven guilty beyond all reasonable doubt of attempted robbery.
Three officers were stationed in different parts of a parking lot. A fourth officer, John Tyrell drove his car and parked in the center of the lot. As he got out of his car the two defendants and a LeRoy Miles approached him from behind a truck also parked at this lot. Miles broke from the group and ran toward Tyrell with a pistol in his hand. He uttered an obscene remark at Tyrell, ending with the words "it's a stickup." Officer Tyrell announced he was a police officer and ordered Miles to drop his gun. Miles fired and Tyrell returned the fire, striking Miles. The two defendants ran behind the truck. As Miles fell he fired again and officer Tyrell again returned the fire, killing Miles. The defendants ran out of the parking lot. One of the three officers, Ronald Pluta was armed with a .12 gauge shotgun and ran after them. The defendants split up and ran in opposite directions. Pluta yelled "Police" at Thomas, whom he recognized, and fired two times, hitting him in the leg. Thomas escaped from the alley but the police went to his home where they found him with a gunshot wound in the leg. Thomas was taken to Cook County Hospital. He was operated on and then removed to Bridewell Hospital.
Price also escaped from the alley. The following day he went to see Miles' family and to help arrange for the funeral. Price and several members of the family drove to the store to purchase some food. The driver of the car did not have a license and the entire group was arrested and taken to the police station. At first one of Miles' brothers was accused of being in the alley with Miles. Price was then identified by one of the officers who had been in the alley.
The defendants point to four places in the record where the trial judge made allegedly prejudicial comments. The first such instance was when the judge stated: "All he (the police officer) has to do is to appreciate that there was sufficient light for him to identify somebody." The judge then turned to the officer on the witness stand and asked, "Now was there a sufficient light for you to identify anybody?" Answer, "Yes."
We do not find the above remark prejudicial. It was merely made to clarify the record and relieve the confusion caused by the State's attorney and defense counsel on the question of the ability of the officer to identify the defendants.
The second alleged prejudicial error occurred during cross-examination of one of the officers. The following colloquy occurred:
Defense question: Who fired the first shot?
The Court: Do you want to object?
The Court: There has been substantial testimony here that the deceased, Miles, fired at least the first shot.
Defense: Judge, are you now testifying for this witness?
The Court: No, I am not, but I don't see how far we are going afield. If you want to find out exactly who was guilty of the first provocation, ask him that.
Defense: Judge, I am trying to find out how much time the two boys that were supposedly there stood there after shots were ...