Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
The defendant-appellant, Henry L. Ford, was indicted for armed robbery, pleaded not guilty, waived a jury, and was tried in a bench trial. A finding of guilty was entered with the defendant being sentenced to a term of not less than four, nor more than seven years, in the Illinois State Penitentiary. When defendant's post-trial motions for a new trial and in arrest of judgment were denied, he filed his Notice of Appeal.
The record discloses these facts. On May 4, 1964, an armed robbery occurred at approximately 9 a.m. in the Kostner and Lake Food Market at 310 North Kostner Avenue in Chicago, Illinois. At the trial, the co-owners of the store, Joseph and Daniel Karas, testified that the armed robbery was committed by two unmasked Negro men, who took about fifteen to twenty minutes to commit the offense, during which time they were able to closely observe the robbers. They both identified the defendant in the courtroom as being one of the two robbers and they also testified they had identified him in a five-man police lineup the night following the robbery. Separate lineup identifications were made by Joseph and Daniel Karas, but in the presence of each other.
On cross-examination of Joseph Karas it was learned that the police had held an impromptu four-man lineup on the sidewalk near the robbed store about two hours after the offense, using three Negro passersby, along with the defendant, also a Negro. At this time Joseph Karas did not identify the defendant as the robber. However, on redirect examination of Joseph Karas and on direct examination of Daniel Karas, both testified that the police had told them, prior to their looking at the impromptu lineup, not to make any identification at this time. Detective Stubig later corroborated this testimony by stating that he had given this instruction. The defendant was the only one of those in the four-man impromptu lineup to appear in the five-man lineup, which Joseph and Daniel Karas viewed the next evening in the police station.
Olly Bird Smith also testified for the People stating that he was robbed in this store, by the defendant, as the armed robbery was in progress. He also stated that he saw the defendant put a gun to Daniel Karas and take money from the store's cash register and he then, in court, identified the defendant as one of the two robbers present in the grocery store. On the night of the robbery, he had identified the defendant in a two-man police lineup, as the dark-skinned Negro who had robbed him and the grocery store as part of the same continuing event.
Roy Neeley testified for the People stating that he was a mechanic in an auto repair shop near the scene of the robbery (approximately a quarter of a mile away) and between 8:30 a.m. and 8:45 a.m. on the morning of the robbery, he saw a powder blue car with a license number beginning with "DB" parked in the alley behind his place of employment. In it were the defendant and another Negro, who drove off in the direction of the Kostner & Lake Food Market. While walking Billy Lane back to the latter's home, Mr. Neeley saw the powder blue car with "DB" license plates parked on Kostner Avenue near the scene of the robbery. He saw the two men he had seen in the alley earlier, walk rapidly from the store, get into the auto and speed off, with the defendant driving. Then Joseph Karas ran out of his store and exclaimed he had been robbed. Mr. Neeley was with Olly Bird Smith when the latter picked the defendant out of the two-man lineup the night of the robbery and immediately thereafter, Mr. Neeley likewise identified defendant in the same lineup. At the trial, he identified the defendant in the courtroom as one of the two men he had seen in the alley prior to the robbery. He was the same man he had seen leave the grocery store and speed off in the blue automobile immediately before Joseph Karas stated his store had been robbed.
The defendant took the stand, as did his brother, Wallace Ford, who was his alibi witness. Wallace Ford testified that the defendant was with him at his home from 9 a.m. to about noon on the morning of the robbery and hence could not have robbed the grocery store at 9:15 a.m. He also testified that his brother had a thick mustache covering the whole extent of his lip on the day of the robbery.
On the stand the defendant denied participation in any robbery and corroborated his brother's earlier alibi testimony. He went on to say that he was arrested close to noon on May 4, 1964, and that he had a thick, large mustache on this date. The alibi testimony was contradicted by the statements of the arresting officers, who testified earlier, that they had arrested the defendant between 10 a.m. and 10:15 a.m. He told them he lived with his brother who was working and that no one was home. They allegedly received his consent to search his dwelling. His brother and no one else were found at home between 10:15 a.m. and 10:45 a.m., when the police and the defendant left the premises. Also, Mr. Neeley earlier testified he had witnessed the defendant's arrest, which took place about one or two hours after the robbery had occurred at 9:15 a.m.
The existence of the defendant's mustache on the day of the robbery was raised for the first time by the defendant and his brother, on direct examination by defense counsel, as none of the prosecution's witnesses on direct examination had mentioned its existence. On cross-examination they had testified that the defendant had no markings on his face and nothing in his appearance that would cause them to remember him or to fix his facial features in their mind on that date.
The trial took five days. On the morning of the second day the defendant complained of feeling dizzy and not feeling well physically. The trial was recessed for five hours to permit the defendant to be examined. A competency hearing, suggested by the defendant, was held before the trial judge without a jury, at which time the physician from the Cook County Jail, who had taken a case history from the defendant and had examined him that day, testified for the People that in his opinion the defendant's physical condition was good, as he had no physical disability and that he understood the nature of the charges against him and was able to cooperate with his counsel. The trial judge then found the defendant competent and the trial continued.
On the third and fourth days, the defendant renewed his plea to have the trial stopped due to his alleged continuing physical ailments, but the trial judge ordered the trial to continue. No competency hearing was held on either day, as the court expressly found the defendant able to cooperate with his counsel.
On the fifth and final day of the trial another competency hearing was held, but this time on the court's own motion. A physician from Oak Forest Hospital testified that he had examined the defendant earlier in the day and found him to be physically fit. He was able to cooperate with counsel and could understand the charges against him.
On this appeal the defendant-appellant contends that he was denied a fair trial because: (1) his identity as one of the two alleged robbers was not proven beyond a reasonable doubt, due to suggestive police practices in the lineups and due to confusion concerning his mustache; (2) he was denied procedural due process of law in that his competency was not properly resolved by the trial judge; (3) incompetent hearsay evidence was admitted during the trial which was prejudicial; (4) the trial court committed reversible error in granting ...