Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Judgment affirmed.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
The defendants, Forthune Humphrey and James Grashen, were tried in the Circuit Court of Winnebago County for the offense of armed robbery which occurred on November 15, 1967, in the City of Rockford. They were tried jointly and filed certain pretrial motions for severance, change of venue, to suppress evidence illegally seized, and to suppress an alleged confession by defendant Grashen, all of which were denied. However, before trial, the defendants and the court were advised by the State's Attorney that the confession would not be offered into evidence and it was not. A jury found them guilty as charged in the indictment and each was sentenced to a term of not less than 5 nor more than 15 years in the Illinois State Penitentiary, whereupon the defendants filed motions for a new trial, which were also denied.
Defendants appeal from the guilty verdict and from the judgment and order of the court on July 27, 1968. They contend (1) the guilty verdict of the jury and the judgment and order of the court are not supported by the evidence beyond a reasonable doubt and to a moral certainty; (2) it was reversible error against defendant Humphrey not to sever the trials of the defendants inasmuch as their defenses were antagonistic to one another, contrary to federal constitutional guarantees and provisions of the law; (3) it was reversible error not to heed the direct prohibition against admitting into evidence pretrial hearsay statements of certain witnesses; and (4) it was reversible error to admit into evidence the prosecution exhibits which were the fruits of illegal searches and seizures.
Because of defendants' allegations, it is necessary to detail the evidence. Forthune Humphrey and James Grashen, of Milwaukee, Wisconsin, drove Grashen's mother's automobile from Detroit to Rockford accompanied by two girls, Tonie Thomas and Patricia Brad. The automobile was described as a 1959 dirty white Pontiac bearing Wisconsin license plates, with a loud muffler, primer spots and four bars on the rear fender. They shopped that evening and Humphrey rented a room at the Faust Hotel under an assumed name, which he used because of his civil rights activities. The night desk clerk testified that the time was about 11 p.m. on November 14, 1967. The defendants testified they went to a friend's home, Hollis Callier, who told them that the Noble Grocery Store was open where they could purchase food and soft drinks. They went to the store, the girls going in first for cokes, and the two men entering shortly thereafter to buy soda crackers. They returned to Hollis' home where they drank whiskey they had with them, ate and talked until after midnight. They arrived at the Faust Hotel again about 1:30 a.m. on November 15 and the night desk clerk checked them into a second room at that time. Grashen also used an alias when he rented the room. At 4:00 a.m. that morning they were arrested by several members of the Rockford Police Department.
Betty Kelly, the clerk in Noble's grocery, testified that she was robbed by the two defendants about 1:30 a.m. on November 15, 1967. The taller man, Humphrey, held a gun while Grashen took a stack of $1 bills, some fives and one or two tens from the cash register. She stated that at the time of the robbery Humphrey was wearing blue glasses, a hat, a scarf and a light colored, regular length trench coat with a torn lining. She said he looked the same in court as at the time of the robbery except that his beard was longer. She also stated that Grashen, who was the shorter of the two, looked the same in court as at the time of the robbery except that his hair was different and he appeared thinner. She said he resembled another person of her acquaintance.
While the robbery was in progress a customer, Don Ingram, entered the store. At the trial, Ingram testified that he was the only customer in the store when the defendants entered and that Humphrey had the gun and Grashen took the money from the register. He made a positive in-court identification of the two defendants.
A John Sanders notified the Winnebago County Sheriff's Office of two suspicious looking individuals being in Noble's store prior to the robbery and described the individuals as one being about 21 years of age, 6 feet tall, wearing a full length tan coat, black hat and blue granny glasses, and the other as about 19 years of age, 5 feet 5 inches tall, wearing a brown jacket with a pompadour hair style. Sanders was not subpoenaed to testify because he was serving in the army in Missouri at the time of the trial.
Another witness, Mrs. Kreger, testified that she notified the police of a suspicious looking vehicle which she described as a dirty white or beige car with double fins and four silver bars on the back fender parked across the street from her home between 1 and 2 a.m. on November 15. Her home is located about 2 blocks north and a quarter block east of Noble's Grocery Store. The automobile first parked headed east with the motor running and then left. Five or ten minutes later, the car returned and parked headed west. Two men got out, one wearing a fingertip length coat and the other wore a shorter jacket. They walked in the direction of Noble's store. About ten to fifteen minutes later she heard a piercing whistle and the car left.
One of the Rockford police officers testified that while responding to the call concerning the robbery of Noble's store they saw a white 1959 Pontiac automobile with Wisconsin license plates No. U 44 458, a loud muffler, and bars on the side of the fender. He stated that the automobile was occupied by two Negro males and two Negro females. Upon identifying the automobile when he saw it parked in the Faust Hotel parking lot about 4 a.m. on November 15, he and three other officers entered the hotel and talked with the desk clerk, a Mr. Phelan, who told them two Negro couples were occupying rooms on the 6th floor. The police officers proceeded to Room 623 where they found Grashen and one of the girls. They took a .32 automatic from Grashen and found $109 in $1 and $5 bills, a .22 pistol, and the keys to the automobile. Other officers went to Humphrey's room and found him with the other girl. Humphrey reached for a .38 revolver which was under his mattress. Humphrey's wallet containing $56 in $1 and $5 bills and $31 in $1 bills was found under a mattress. Ammunition for the weapons was also found in the rooms and walkie talkie equipment. When the automobile was searched at the police station the next morning, a receipt for $.39 dated November 14 from Noble's store was found.
Phelan identified the registration cards signed by the defendants and the time stamps which indicated that Marvin Brown (Humphrey) had checked in at the hotel at 11:37 p.m. on November 14 and Thomas Moore (Grashen) had checked in at 1:56 a.m. on November 15, 1967. A police officer stated that when they approached Phelan and asked him about the two Negro couples who had checked in and received a description that matched the description given by Betty Kelly, he said that they had last checked in about 1:50 a.m. on November 15, although Phelan's own testimony was that they checked in about 1:30 or 1:40 a.m.
Tonie Thomas and Patricia Brad, the friends of the defendants, were called by the State and made court's witnesses upon motion. Thomas recalled being at the Faust Hotel about 1:40 and denied the contents of a statement made by her to the police and stated that she signed the statement because she was afraid of policemen. Patricia Brad denied the contents of a statement given by her, but admitted signing it. The police officers who took the statements testified that they advised both Thomas and Brad of their constitutional rights and that they made no threats or promises. Brad's statement was that defendants had planned to rob a store; they looked at different stores and then decided on Noble's and that they then robbed it. Thomas' statement was that the two defendants were to enter the store while they, the girls, were to wait a few blocks away.
In claiming that they were not proven guilty beyond a reasonable doubt, the defendants stated that the presumption of innocence is not overcome by the two unreliable and conflicting identifying witnesses, and that the total testimony is incomplete, biased and doubtful. It is stated that the testimony of the State indicates there were five persons who could identify the defendants; that identification of the defendants was a key to this action, and that the testimony of the identifying witnesses was incomplete because of the absence of certain of such witnesses. It is stated that a presumption must arise because three of these five witnesses did not testify; that if they did testify, their testimony would be detrimental to the State. It is clear that only Ingram and Betty Kelly were in the store at the time of the robbery, and that the other three witnesses were not present at the time of the robbery but were present in the store prior to the robbery. The absence at the trial of one of them was explained but the absence of the other two was not. In any event, they were not eyewitnesses to the robbery. It has been said that the testimony of a single witness, if positive and credible, is sufficient to convict even though contradicted by the accused. The People v. Guido, 25 Ill.2d 204, 209, 184 N.E.2d 858. Here there were two witnesses, Betty Kelly and Ingram, who positively identified the defendants as being the robbers. They were unshaken in their in-court identifications of the defendants and both testified that they each had a good opportunity to view the defendants. Their testimony is corroborated by the testimony of other witnesses, the circumstances of the arrest later, and the physical evidence obtained from the defendants. The defendants' auto was placed near the scene of the robbery and was noticed being driven in the area by police officers shortly after the robbery. Defendants themselves admitted having been at the Noble store that evening and having been on the street where the police observed their vehicle. Also to be considered are the circumstantial evidence and the physical evidence such as the weapons and currency which was found in the possession of the defendants after their arrest.
The defendants, aside from claiming that their identification as the robbers was vague and doubtful, served notice of an intent to prove an alibi during the trial and claimed that they did prove an alibi, which placed them at the Faust Hotel rather than the Noble grocery, some two miles away, at the time of the alleged offense. It appears that the offense happened about 1:30 a.m. and the defendants argue that Mr. Phelan's testimony supports their alibi. The jury heard Mr. Phelan's testimony and apparently determined that his testimony supported the State, rather than the defendants.
Considering all of the testimony, it appears that the testimony of the defendants and Callier is contradictory to much of the State's testimony and the physical evidence introduced, and therefore, it was up to the jury to determine the credibility of all of the witnesses. We believe that the jury was warranted in returning a verdict of guilty and that the verdict is reasonable and justified. The evidence established the ...