WRIT OF ERROR to the Circuit Court of Cook County; ABRAHAM W.
BRUSSEL, F. EMMETT MORRISSEY, and JOSEPH J. BUTLER, the Honorable
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 23, 1970.
The defendants, Frank Yonder and Nicholas Guido, were tried before a jury for the crime of armed robbery, found guilty and sentenced to a term of not less than 60 nor more than 100 years in the penitentiary. The cause is nor before us on appeal. The defendant Nicholas Guido appeals from his conviction and also from the denial of a petition which he filed under the Post-Conviction Hearing Act. The two appeals of Nicholas Guido were consolidated and will be considered together with the separate appeal of Frank Yonder in this opinion.
The indictment charged that the defendants, together with Louis Vasselli, Duane Pinkowski and Patricia Guido, while armed with a pistol, took money and jewelry from the person and presence of Joan Botthof at her home located in Winnetka. Duane Pinkowski and Patricia Guido, the wife of defendant Nicholas Guido, agreed to testify for the State, and their testimony along with other witnesses revealed the following facts.
The defendants obtained a set of keys to the Botthof home from a "car-hiker" at the Kay-Den Beauty Shop located near Guido's apartment in Chicago. After receiving the keys, and having them duplicated, Nick and Patricia Guido gave the duplicates to Yonder with instructions to visit the home and find out if the keys worked. Yonder made the visit and reported that the keys opened the doors of the home.
Guido contacted Duane Pinkowski on May 24, 1962, and requested he come to his apartment for a meeting. A short time after Pinkowski arrived, Patricia Guido and Yonder, accompanied by Pinkowski, made another visit to the Botthof home and, after pointing out the house to Pinkowski, drove around the neighborhood while Yonder explained the details of the robbery planned by Guido.
On May 25, 1962, Yonder and Vasselli met in a tavern where Guido informed Vasselli of the planned robbery and asked him if he wanted to take part in it. Vasselli agreed. Guido told Vasselli that Yonder would be the leader in the house and that Vasselli had only to bring the guns.
On Saturday, May 26, 1962, Nick and Pat Guido went shopping for the necessary articles to carry out the robbery. They first visited a discount store where Guido purchased a flashlight and stocking cap, and from there went to a nearby dime store where he purchased a rope and flashlights. They then proceeded to a Neumode Hosiery store, where defendant Guido sent Pat Guido in to purchase two pairs of large white nylons which were later cut and made into masks. The final store they entered was a Walgreen Drug store where Guido bought two large rolls of wide adhesive tape. After acquiring these articles, they returned to the apartment, stopping along the way at John Seicchitano's hot-dog stand where Guido obtained a gun and a set of master keys for General Motors automobiles.
On Sunday, May 27, 1962, Yonder, Vasselli and Pat Guido drove to the Lake Forest Oasis on the Northwest tollway where the defendant Yonder went into a phone booth and copied the telephone number. Later that evening, Yonder, Guido and Pat Guido met Vasselli for the purpose of stealing a car that could be used in the robbery. Yonder and Vasselli, under Guido's supervision, obtained the car from a used car lot. The robbery of the Botthof home was then performed by Yonder, Vasselli and Pinkowski while Patricia and Nick Guido waited at a restaurant. They later met Yonder at their apartment. Yonder's suit was splattered with blood, and he was very excited. He told Guido that he had left the Butthof family for dead and that they were only able to get $130, two pairs of pearls and a ring. While Yonder cleaned up and changed clothes, Guido told Pat Guido to take Yonder's clothes and throw them in an alley where they would not be found. When Pat Guido returned to the apartment Guido gave her the pearls and his gun and told her to drive Yonder to her house in Joliet. Pat Guido left Yonder asleep in her home, hid the articles in the basement and returned to the apartment in Chicago to pick up Guido.
On May 29, 1962, Guido moved out of his apartment and returned to Joliet with Pat Guido. About a week after the robbery took place, Guido removed the pearls from their hiding place in the basement, placed them in a cannister and buried them in the back yard of the premises. Between May 28, 1962, and June 18, 1962, Pat Guido was with Guido every day. On June 18, 1962, the police visited the Guido home in search of Guido and Yonder. Neither was present, but Pat Guido, subsequent to the police visit, received three telephone calls from the defendants. After receiving the last call, Pat Guido contacted the Joliet police and, in the presence of the State's Attorney's police, sheriff's police and Joliet police, unearthed the cannister containing the stolen property. After turning the cannister over to the police, Pat Guido was arrested and charged with taking part in the Botthof robbery. She was subsequently released on bond but, at her request two days later, was placed in protective custody by the State's Attorney's office. She remained in protective custody until the trial.
Pinkowski agreed to testify for the State. He admitted that in exchange for his testimony the State's Attorney's office had given him a written promise that the charges pending against him for his participation in the offense would be dismissed.
Pinkowski testified that Yonder, Vasselli and he drove to the vicinity of the Botthof house in a stolen blue Pontiac. They parked the car and entered the house, using the duplicate key. During the robbery, Yonder beat Botthof on the chest, kicked him and slapped him with his pistol and gouged his eyes with his thumb. Mrs. Botthof was kicked and severely burned, as were the maids in the household, by Yonder placing lighted cigarettes and matches to their breasts, pubic hairs and bodies. The young son of the Botthofs was also attacked by Yonder who twisted the boy's arms. All of this was done in an effort to get the Botthofs to tell Yonder where the jewelry was and the money he assumed was present in the house. As Yonder, Pinkowski and Vasselli started to leave the home, Yonder wanted to return to the bedroom where the victims had been bound and kill all of them. Pinkowski, however, persuaded Yonder to leave them alone and the three left the Botthof residence, taking with them Mrs. Botthof's pearl necklace, ring and $135 in cash.
Guido, who took the stand on his own behalf, denied any knowledge of, or participation in, the commission of the robbery or its planning. He explained that he fled from the State because he feared for his life under a shoot on sight order which had been issued by the authorities. Yonder did not testify.
Botthof testified in part that in the early morning of May 28, 1962, he was awakened by a blow over his right eye. He told how he was struck three times in the eye; how the "men" dragged the two maids from their rooms; how the men bound Mrs. Botthof, the two maids and his 11-year-old son with adhesive tape; how the "tall man" poked his thumb "as hard as he could" six times into Botthof's eye (causing loss of sight) and pounded Botthof's chest with his fists, kicked him several times in the ribs, (breaking two of them), and slammed the heel of his shoe into Botthof's face; that the "tall man" proposed that they rape the women and said "I'm going to have a sex orgy with your son"; that one of the men struck Mrs. Botthof on the side of the head and said, "Bring the bitch over and let her see the old man"; that Mrs. Botthof was then dragged by her hair across the floor to look at her husband; and that the men then burned the pubic hairs of the three women.
Mrs. Botthof testified in part that early in the morning of May 28, 1962, she was awakened when "my husband was struck with a gun butt over his left eye"; that the men bound her and the others, including her young son, with tape; that the "tall man beat my husband unmercifully" and "took his thumb and drove it into my husband's eye as far back as he could" and "kicked my husband and stood on his face"; that one of the men "let me have it with his fist and he stood on my neck three times"; that one of the men said "I will have to cut the bitch's finger off" when they had difficulty removing her wedding ring; that "during all this, my two maids were being beaten, one had her eye gouged with a finger" and "then one maid had her jaw almost broken and a huge bruise on her breast"; that the "tall man said, `Very well, light the women.' So the stocky man struck matches and lighted the pubic hairs of the women, and * * * they had stripped our clothes off, all off, we were lying naked, and we were on our backs, and I leaned over, I rolled over and put this blaze out on ...