Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a jury trial in which three indictments were consolidated and heard as one cause, defendant, Clayton R. Dial, was found guilty of robbery "while armed with a dangerous weapon." He received three concurrent sentences of 10 to 15 years. On appeal defendant contends (1) that he was not proved guilty beyond a reasonable doubt, and (2) prejudicial trial errors occurred, which deprived defendant of a fair trial.
On June 20, 1963, at about noon, a man armed with a sawed-off shotgun entered the premises of the West-Lin Distributing Company, 3630 North Elston Avenue, Chicago. At gunpoint, he robbed two men, Raymond Fulton and Anthony Chrisos. He ordered the men into a washroom, where the three waited for the arrival of Brink's guards, who were to pick up the West-Lin receipts of the day before. After waiting about fifteen minutes, the man herded Chrisos and Fulton into an office, where he disarmed two Brink's guards. He ordered Hilda Meyer, secretary for West-Lin, to put the receipts in a bag and hand it to him. The four men and Miss Meyer were ordered into a washroom and, after five minutes, they came out and the man was gone.
About three months later, because of an anonymous telephone call, the police started an investigation, which resulted in defendant's arrest and indictment for the three West-Lin robberies of June 20, 1963.
At the trial, the witnesses for the State were Raymond Fulton, Anthony Chrisos, Ralph Joch, Hilda Meyer and Walter Murphy, a police officer.
Raymond Fulton, an auditor in the Illinois Department of Revenue, was at West-Lin on June 20, 1963. He testified that defendant resembled the man who had held him prisoner and committed the robbery. On a previous occasion in another courtroom, he saw defendant, who "started yelling about he was being framed, and the voice sounded just like the man that was in the washroom with me."
On cross-examination, Fulton said he was in the washroom with the robber for about twenty-six or twenty-seven minutes. The man had a pencil mustache and wore a straw hat and wraparound sunglasses. He gave a description to the police that the robber "was something around 6 feet tall, weighed between 175 to 190 pounds, he was a light-complected Negro, that he had a little mustache and a straight nose. . . . I saw all the features of the man that weren't covered up."
Anthony Chrisos, a truck driver for West-Lin, who happened to be in the plant on June 20, testified in detail as to the robbery. He said, "I was able to see his face during the entire time I was in the washroom. I gave a description to the police." He stated defendant was the same man he saw on June 20, 1963, "except for the mustache is off."
Chrisos further testified that in October 1963 he appeared at the Shakespeare Avenue Police Station. Also present were Roy Johnson and Ralph Joch, the two Brink's guards, and police officers. "There were four colored fellows lined up side by side and we were asked if there was anybody in there that we recognized, and I said I did. I recognized the defendant. I'd say I was about three or four feet away from him. . . . They just asked us first if we saw anybody in the lineup we knew and we all said yes. Then we were asked to go up and put our hand on his shoulder, and all three of us walked up at the same time and put our hand on his shoulder. I gave a description to the police in the month of June. They made a drawing from my description." Chrisos looked at photographs shown to him by police officers but made no photograph identification.
On cross-examination, Chrisos was questioned at length about the description of the robber given to the police. On June 20 he was with the assailant for a total of about twenty minutes, and he had a good look at his face. He was clean-cut and had a pencil-striped mustache.
As to the lineup, Chrisos said the other three men in the lineup were shorter than Dial and two were real dark. He was positive that the man he saw in the lineup was "Richard Dial." He heard no remarks from the police officers to the men in the lineup other than to turn around and to look from side to side. On redirect, Chrisos again identified defendant as the man who robbed him on June 20, 1963.
Ralph Joch, a guard for Brink's, Inc., testified in detail as to the robbery. He was able to get a good look at the man and observed his whole body. He viewed photographs four or five times, and on September 27 picked out a picture of the defendant. On October 2, 1963, he went to the Shakespeare Avenue Police Station and identified the defendant in a lineup of four persons "I was two or three feet away from the person who I identified. I identified the defendant. He was also identified by Mr. Chrisos and Mr. Johnson. The police asked us if we recognized anybody in the lineup, and we all agreed yes. After the lineup was over they said, `Which one?' We all pointed to the same gentleman in front of us. Mr. Johnson is now deceased." The first time he heard the name of "Richard Dial" was at the lineup on October 2, and later he said that he first heard the name on September 27 when the warrant was issued. The name was given to him by the police officers.
Joch was subjected to a lengthy cross-examination and persisted in his identification of defendant as the robber on June 20.
Miss Hilda Meyer, secretary for West-Lin Distributing Company, testified as to the details of that part of the occurrence which took place in her presence but made no identification.
Walter Murphy, the investigating police officer, testified that on September 25, 1963, by way of an anonymous telephone call, the police received information that "the man who had committed the robbery at the West-Lin Distributors was known as Richie, supposedly a male negro about 6 feet tall, about 25 years old, light-complected and living in a building at 264 North Sacramento. The informer said he had a red and white Chevrolet and had gone to Crane Junior College at night." On that day they went to 264 North Sacramento and, finding no one who knew "Richie," they went to Crane Junior College and, on checking the records, found a "Clayton Richard Dial" who had attended night sessions and lived at 264 North Sacramento.
On the morning of September 27, the police officer and his partner went to defendant's home, and his father told them that defendant was not at home "Then we saw the defendant, he came to the door and at that time we recognized him from a drawing that was made by these witnesses to the robbery. He perfectly matched that drawing, even had the same mustache he had on when he held up the place. . . . It is the defendant right here. . . . We asked him if he was Clayton Dial. He denied it and his father denied it. They said he was Clayton Dial's uncle." At that time the officers were informed that "if we ever wanted to talk to Clayton Dial we would have to get a warrant." The officer further testified that they obtained a photograph of Clayton Dial from the John Marshall High School. They put this photograph with 10 or 15 other photographs and showed them to Brink's truck driver, Roy Johnson, who "looked through the group of photographs and when he came to the picture you have in your hand there, he said, `That is him.'" At this point the court overruled defendant's objection to the entire narration and motion that "it be stricken and declared for naught."
The officer further testified that the group of photographs was shown to "Ralph Joch, the other Brink's man," and when he came to the picture of Dial he stopped and said, "That is him." Joch then accompanied them to court and obtained a warrant charging "Clayton Dial" with armed robbery. The warrant was secured on September 27, and on October 2 defendant surrendered.
Officer Murphy was present at the showup on October 2. The defendant and three other male Negroes were in the lineup, and they were viewed by Johnson, Joch and Chrisos. After the lineup was over, they were asked if they recognized anybody who was in the lineup, and they all stated they did. All three men then approached the defendant and pointed him out and stated he was the one who held them up on the 20th of June.
On cross-examination, the officer stated the first time he heard the name of "Clayton Richard Dial" was on the afternoon of September 25, and he got the name from the Crane Junior College because of the "anonymous telephone call." He obtained People's Exhibit 1 (the high school photograph), on which appeared "School Days, 56-57," from the office of the John Marshall High School. It was the only photograph of defendant that was in the group of photographs shown to Johnson and Joch, and this was "six years after the picture was taken."
Defendant testified and denied his involvement in the robbery. He said that on June 20, 1963, he was not working due to a strike. The strike ended about the 4th of July, and he went back to work for Bob Heller, a truck driver for Pepsi-Cola. Defendant was 24 years old, and he was 16 years old when the high school picture was taken. On June 20 he was at home asleep until noon, when he was awakened to eat lunch. Defendant's Exhibit 5 was a clothing receipt he received on June 20, when he purchased a bathing suit and sunglasses. During the month of June, he had a 1956 red and white "Chevvy." During the months of July and August, he was earning from $75 to $85 a week take-home pay. Defendant's Exhibit 6 was a loan certificate showing he borrowed $525 on July 15, 1963. He repaid the loan on September 19, 1963. He related that on September 26, the police officers came to his home looking for a "hit and run" driver, and he told them his name was "Bobby Jones." He refused to go with them because they did not have a warrant, and they told him they would give him a rough time. He turned himself in on October 2. He testified that he was 5-feet-10, and Exhibit 7 was an I.D. card given to him at the County Jail where he was photographed and measured on October 3, 1963. The card shows "Ht. 5-10, Wt. 176, Birth Date 5-13-40."
Defendant further stated that a police officer informed him that "it was a known stool or police informer that gave him information on me. And he stated that his name was Henderson and he lived on Douglas Boulevard in the 3500 block, and that's who he said fingered me. . . . I was arrested for armed robbery in Oak ...