Appeal from the Circuit Court of Cook County; the Hon. THOMAS
R. McMILLAN, Judge, presiding. Judgment affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, David Olbrot, was found guilty of armed robbery after a trial before a jury. He was sentenced to a term of ten to fifteen years in the penitentiary.
The defendant contends, on appeal, that (1) the lineups in which the defendant was identified were so suggestive and unfair as to deny him Due Process of Law; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the introduction of evidence of another crime deprived him of a fair trial; and (4) the court erred in refusing to allow defense counsel to impeach the State's rebuttal witnesses with inconsistent statements made at a prior hearing.
At approximately 1:30 a.m., on January 3, 1967, Edwin A. Zaraza, a pharmacist, and Jerry Roche, a clerk, were working at the Musket and Hendricksen Pharmacy at 4200 North Central Avenue when two men entered with drawn guns and announced a robbery. Zaraza was behind the prescription counter, and Roche was alongside. A man whom Zaraza and Roche identified in court as the defendant, stood at the cash register about twelve feet from them. The other man said that he wanted certain drugs. Zaraza put them in a bag and gave it to him. The man asked for needles and took a handful of boxes of needles when shown where they were. This man also went to the cash register which contained about $150. When the men left the money was gone. This other man also took some money from a drawer. Zaraza and Roche were then told to lie on the floor which they did just before the robbers left. The incident took from three to five minutes.
Zaraza testified that he described the defendant to the police as being about five feet three, 130 pounds, and either Puerto Rican or Italian. He had long black hair and wore a black leather jacket and sun glasses of the wraparound type. The other man was five feet eight or nine, with a lighter complexion and lighter hair. He wore a light colored jacket, a sweater shirt, light slacks, and was in his early twenties.
Zaraza testified on cross-examination that he identified the defendant when he attended a lineup of four men in the lockup at a police station two or three days after the robbery. One of the men in the lineup was about six feet tall, while the other two were five feet ten or five feet eight, or maybe shorter. The defendant was the shortest one in the lineup, and at that time his face was badly bruised. Zaraza said that he did not look much different from the time when he was in the store. He said that he requested the police to put sunglasses on the defendant. He requested this because, although he was fairly sure, he wanted to make certain that it was the same man. Zaraza stated that the pharmacy was well lit with fluorescent lighting. He testified that he looked directly at the defendant several times in the pharmacy. At one time they were within five feet of each other.
Jerry Roche also identified the defendant in court as the man who stood next to the cash register. He testified that while the other man took the money out of the cash register, the defendant had a gun pointed at him and told him not to move or he would be a dead man. At that time the defendant was two feet away from him. Roche described the defendant's wearing apparel as being black pointed shoes, black pants, a black sweater, a shirt underneath the sweater and wraparound sunglasses. He said the defendant's hair was long, black and combed straight back. He described the other man as being three to four inches taller, with a lighter complexion and lighter hair. He said the men were in the store about three minutes.
Roche testified on cross-examination that he attended a lineup at the police station before Zaraza did. The lineup consisted of three men, one of whom was over six feet, another about five feet seven and the defendant who appeared badly beaten up. Roche didn't want to identify the defendant until they put sunglasses on him. He explained that the defendant looked as much like the man in the store as anybody could, but that he wasn't ready to identify him without the sunglasses. During the course of the robbery he paid more attention to the defendant.
Officer Raymond Golnick testified that he and several officers were staked out in an apartment on the second floor of 3423 West Drummond on January 6, 1967. At 5:00 a.m., they heard a knock on the door. As Officer Golnick opened the door, he identified himself as a police officer. The defendant pulled a revolver from his pocket and pointed it at the officer who heard a click. Force was necessary to subdue him. The officers found three cartridges in the weapon after arresting the defendant. Officer Raymond Springer corroborated Officer Golnick's version of what took place. He also testified that the defendant later kicked him in the groin several times. He then struck the defendant in the head several times with the stock of his gun.
Frank Kopp, a bartender at the Club Caravan, located at 2119 South Halsted, testified for the defense that he saw the defendant in his tavern on the night of January 2nd and 3rd, between 9:30 or 10:00 p.m. and 4:00 a.m. He said that the defendant shot pool that night with a Kenneth Eichert and an Omar Wilson. He didn't see the defendant leave the tavern during that time period. Kopp testified that he had never seen the defendant before that night, but knew the other two men. He said that he was introduced to the defendant that night.
Marian Olbrot, the defendant's mother, testified that she saw her son at 2:00 p.m. on January 2, 1967, at their home with Omar Wilson. At that time, the defendant was wearing a corduroy tan jacket, dark slacks and a white shirt. Mrs. Olbrot said that she bought her son's clothes and that he never owned a black leather jacket or sunglasses. The next time she saw him was when he came home late on January 3rd. She testified that she didn't know where her son was between 1:00 and 2:00 a.m. of January 3rd. Rosalie Shaw, the defendant's sister, testified that she saw the defendant on January 2, 1967, at 4:00 p.m. at her home. He was with Omar Wilson, her brother-in-law. The defendant wore a tan jacket and dark slacks. The two men left her house at 9:00 p.m.
The State called Josephine Tripoli, Leonard Jay, Jr. and Leonard F. Jay as rebuttal witnesses. Mrs. Tripoli testified that at approximately 1:00 a.m. on January 3, 1967, two men entered her tavern at 6232 W. Addison with guns in their hands. One of them was the defendant. There were six customers in her bar at that time, including Mr. Jay, Sr. and Mr. Jay, Jr. She gave a description of the defendant to the police. She said that the defendant was about six feet away from her and that the robbery took about ten minutes. Leonard Jay, Jr. testified that he was in the tavern shooting pool with his father and brother when he saw the defendant who was wearing a black leather jacket enter with another man about 1:00 a.m. on January 3, 1967. Both were carrying guns in their hands. Leonard F. Jay testified that he was in the tavern with his two sons when the defendant and another man entered carrying guns about 1:00 a.m. on January 3, 1967, and held up the tavern.
The defendant contends that the lineups from which he was identified were so unfair and suggestive as to deny him his right to due process of law. He also contends that it was reversible error to admit the courtroom identifications into evidence because they were tainted by the prior illegal lineups. It is argued that in both lineups the defendant was considerably shorter than the other men and that neither witness made a positive lineup identification until after the defendant was caused to wear sunglasses, while at the trial both witnesses positively identified the defendant without sunglasses.
In People v. Terczak, 96 Ill. App.2d 373, 238 N.E.2d 626, the defendant also attacked a lineup where he claimed the other three persons were not sufficiently comparable to him in size, age and appearance. The Appellate Court held, as we do here, that these matters go to the weight of the testimony rather than its admissibility. The record is clear in the case at bar that both witnesses had ample opportunity to observe the defendant in a well lit drugstore. They gave a complete description to the police of the defendant which included his clothing and style of hair. Neither witness made a hasty identification at the lineup. Each requested to see the defendant with sunglasses on, as they had seen him in the store. All of this, including the description of the lineups, was presented to the jury. The identifications were unshaken during cross-examination. Under all these circumstances we ...