Appeal from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Edward Boyce and William M. Spencer, were tried together before a jury on an indictment charging them with attempt murder, attempt robbery and aggravated battery. They were found not guilty of attempt murder, but found guilty on the other two charges. Defendant Boyce was sentenced on each charge to a term of not less than two nor more than five years in the State Penitentiary, the sentences to run concurrently. William Spencer was sentenced on each charge to a term of not less than four nor more than seven years in the State Penitentiary, the sentences to run concurrently.
The defendants filed separate appeals in this court and on motion of their counsel we consolidated the cases. The defendants contend that they were not proven guilty beyond a reasonable doubt and that they were deprived of a fair trial because of misconduct on the part of the prosecutor. The defendant Edward Boyce also contends that his sentence was excessive.
The record reveals that two Marshall High School students, Melvin Gaines and Robert McCullough, went to a school supply store near their school at 3260 West 5th Avenue during noon lunch period on October 11, 1966. McCullough handed his transistor radio to Gaines and entered the store. Gaines remained outside. Gaines testified that about 1:20 p.m. the two defendants jumped out of the side door of the store and that defendant Boyce grabbed the radio saying "we want it." Gaines said "I pulled it from him and we tussled with the radio." According to Gaines, defendant Spencer was standing about four feet away at this time. Gaines said that they tussled over the radio for about four minutes. He testified that then Spencer said "we are going to get the radio anyway" and that Spencer took a gun out of his pocket and shot him in the upper right part of his leg. Robert McCullough then came out of the store and took the radio from Boyce. Spencer shot McCullough in his right thigh. Gaines and McCullough then ran into the store. When they got inside the store Spencer and Boyce came up to the doorway and according to Gaines Spencer started shooting. Five shots were fired and Gaines was struck twice in the lower left part of his ankle.
Robert McCullough testified that when he looked out of the store window he saw Boyce struggling with Gaines over the radio. He came out of the store and took the radio away from both of them. Spencer then shot him above his right knee. He and Gaines ran into the store and Spencer shot him twice again. At this point Spencer and Boyce ran away. McCullough stated that he was in the hospital for five months.
Three witnesses testified for the defense. Patricia Ann Belin, a Marshall High School student testified that she had met Boyce and Spencer for the first time at her party about four months before the occurrence. Boyce came with Cleaster Connor, her girl friend. The next time she saw Boyce was at 12:45 p.m. on the day in question when she was in the Vienna Restaurant, about 30 feet from the supply store. She said she was with Cleaster, Dianne Shumate and a boy named Alvin Harris. She said Boyce left with Cleaster to see their baby. She stated that after Boyce left the restaurant she saw him walking in the opposite direction from the supply store. She heard shots and when she got to the supply store she saw one boy lying in the store and the other in the doorway.
Cleaster Connor, a Farragut High School student, testified that at 12:45 p.m. on the day in question she was in the restaurant with the others. She said Boyce told her that their baby was not well and at 1:00 p.m. she walked with him to his home which was six or seven blocks away to see their baby. She testified that she was not married to Boyce.
Alvin Harris, a Marshall High School student, testified that about 12:30 p.m. on October 11, 1966, he met Boyce on a corner near the restaurant and that Boyce gave him a radio. He said he went into the restaurant to eat and did not see Boyce again that day.
The defendant, William Spencer, took the stand and testified that he did not commit the crime, but was at home during the period of time the crime was committed.
The defendants contend that they were not proven guilty beyond a reasonable doubt because the victims had very limited time and disadvantageous circumstances for observing the faces and other physical features of the two assailants.
We are not in accord with the defendants' contention. Gaines testified that he saw the two defendants in front of the store before he grappled with Boyce for several minutes over the radio and before Spencer shot him. Furthermore, Gaines gave descriptions of the defendants to the police and was able to describe their clothing. McCullough testified on cross-examination that he was in the immediate presence of the defendants for about three minutes, that he had a clear unobstructed view, and that the sun was shining during the attempted robbery. Considering these facts and circumstances we believe that the conditions for observation of the assailants could hardly be more ideal and that the victims' identification of the defendants was direct, clear and positive.
The defendants also contend that the in-court identification was tainted by the unnecessary suggestiveness of the prior lineup and showup. They maintain that it is impossible to say with certainty or beyond a reasonable doubt that the in-trial identifications were independent and uninfected with the lineup and showup testimony, and therefore, there is raised a reasonable doubt of the guilt of the defendants.
Several days after the shootings, Melvin Gaines viewed defendants Boyce and Spencer in a lineup at the police station with five or six other Negro men who were all about the same age. One of the men in the lineup was Alvin Harris who testified at the trial that only he and defendant Spencer had processed hair. This latter fact, the defendants maintain, rendered the lineup suggestive and unfair to the defendants.
A showup was held in Robert McCullough's hospital room on the same day as the above-mentioned lineup. McCullough testified that a third boy, a stranger to him, was brought in alone to his hospital bed to be viewed by him before the two defendants were brought in. Alvin Harris testified that he was the third boy, and that he and the two defendants were brought in later to be viewed. The defendants argue that though wounded in the legs, there is no evidence that McCullough was diagnosed as critical, and there was no emergency which justified ...