APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 8, 1971.
A jury found the defendant guilty of the offense of armed robbery. He was sentenced to a term of ten to twenty years.
On appeal, defendant contends:
(1) that he was not proved guilty beyond a reasonable doubt;
(2) that the trial court erred in denying his request for a continuance to secure additional witnesses; and
(3) that the trial court erred in admitting an in-court identification and a statement made by the defendant who had not been advised of his right to have counsel at a line-up.
Warren Blackman testified for the State. He is part owner of a gas station at 618 South Ashland Avenue in Chicago. At 8:00 P.M. on September 25, 1967, he locked the station for the night. As he walked to his car, a white man, later identified as Rimanich, appeared and told him "this was a hold up." This man carried a shopping bag containing a gun which he pulled out for Blackman to see. Two passers-by, Grafton Walls and Charles Knowles happened upon the scene and Rimanich told them to "join the party." All went back inside the station. Rimanich took the nineteen dollars Blackman had in his pocket and locked Walls and Knowles in the washroom. A Negro came into the station. Rimanich stated to him that Blackman was "clean." Rimanich also stated "There's only four dollars left in the drawer, in the trunk." Blackman first said the four dollars was taken by Rimanich but then said it was taken by Street. However, he stated that he didn't actually see the defendant take anything. The lighting conditions were good and he had two or three minutes to get a look at defendant's face. After the robbers left, Walls and Knowles hailed a police car and gave a description to the police officers. Blackman did not give a description to the police. The policeman read to him the description given them by Walls and Knowles and they talked about it. Later that night he was told that the police had caught the fellow and that he should come to the Racine Station. At the Racine Station he was told by the Police that they had the robbers and that the description given fit pretty close. Then the police had two line-ups, the first with four white men, the second with four Negroes. He identified Rimanich and defendant in the line-ups.
Grafton Walls testified for the State that he and his friend Knowles went to the gas station to talk to Blackman about a tire. Blackman was standing with another white man near his car and the other man told them to "join the party." The man had a gun in a blue and white striped bag and told them they were all going inside, "This is a stick-up." Walls and Knowles were ordered into the washroom. A few minutes later Blackman was sent into the washroom and the door was closed on the three of them. Shortly thereafter they came out of the washroom and hailed a passing police car. He later went to a line-up at a police station where he identified the white man, Rimanich.
Raymond Hutton, a Chicago police officer, testified for the State that he stopped a car for a traffic violation at 11:00 P.M. on the night of September 2, 1967. Defendant was the driver of that car. He was accompanied by two passengers; one, a male Negro, was in the front seat; the other, a white male, was in the rear. The Negro passenger left to get cigarettes and did not return. When the witness' partner inspected the rear seat of the vehicle he discovered a .30 caliber carbine in a green and white striped bag. This package was within easy reach of the passenger in the rear seat who was later identified as Rimanich. The officers noted that Rimanich matched a description given in a city-wide alert which described a white male with a machine gun in a green and white striped bag sought in connection with an armed robbery. A search of the defendant and Rimanich revealed no unusual quantity of change.
Detective Edmund Butz of the Chicago Police Department testified for the State. He stated that defendant at first declined to make a statement, but later remarked: "Ain't this a shame? That was supposed to be a five thousand dollar score, and we only got nineteen dollars out of the robbery." A police report indicated nineteen dollars in currency and four dollars in change was taken during the robbery. Before conducting the line-up he told Blackman that two men were in custody in connection with the robbery. Blackman then remembered the presence of a second robber. Butz did not question defendant in an interrogation room.
Melvin Street testified on his own behalf. He first met Rimanich approximately one month prior to his arrest. Before 7:00 P.M. on the evening of September 25, 1967, Rimanich came to Street's residence for dinner. At that time Rimanich carried a green and white striped bag. During dinner Rimanich asked defendant to help him move. Defendant was going to try to borrow a car and help Rimanich. Approximately 9:00 P.M. defendant made telephone contact with a Mr. Huron, a security officer of the University of Chicago, who consented to let defendant borrow a car. About 9:30 that evening defendant got the car and picked up Rimanich. Rimanich, carrying a green and white striped bag, was accompanied by a Negro friend whom defendant had never seen before. They drove some distance to a house which Rimanich and his friend entered carrying some of Rimanich's clothing. On the return trip they were stopped for a traffic violation. Rimanich's friend was allowed to leave the car to get a package of cigarettes but he never returned. One of the officers went to the car and returned carrying a bag which contained a gun. At the time of his arrest defendant had no change but about eight or nine dollars in currency on his person. At the police station he was questioned by Detective Butz in an interrogation room. Prior to the line-up in the police station defendant saw Butz, Blackman, Walls and Knowles standing near a desk. Butz pointed to defendant saying "That's the man." Defendant was then placed in a line-up with two policemen. A third line-up was conducted for a person unknown to defendant. This person told the police that defendant was not at the scene of the robbery. Defendant denied all knowledge of the crime as well as participation in it.
Mary Kay Hubbard testified for the defense that she was living with defendant at the time of his arrest. On her way home from work on the evening of September 25, 1967, she stopped at a grocery store when she met Rimanich who wanted defendant to help him move. After inviting Rimanich to dinner she went home. Between 6:00 and 6:30 defendant arrived. Shortly thereafter Rimanich came carrying a green striped bag. He stayed approximately forty-five minutes. At 7:45 P.M. defendant went downstairs to make a phone call and returned ten or fifteen minutes later. Defendant left the apartment about 9:00 P.M.
• 1 Defendant's first contention is that because his identification was doubtful, vague and uncertain the State failed to prove him guilty beyond a reasonable doubt. Defendant argues that the fact that Blackman failed to describe a Negro robber when he spoke with the police officers immediately after the robbery indicates that the identification of defendant at the line-up was a result of police suggestion. We do not find defendant's argument persuasive. The testimony of the State's witnesses indicates that the description of the robber given to the police officers at the filling station was provided by Walls and Knowles, who had seen only Rimanich before they were confined to the washroom for the duration of the robbery. Shortly after Walls and Knowles spoke with the officers, the officers spoke briefly with Blackman who confirmed the accuracy of the description of Rimanich supplied by Walls and ...