APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty at a jury trial of the crime of armed robbery. A motion for a severance having been allowed defendant and the penitentiary. He appeals.
On November 8, 1968, two Thillens Check Cashing Service guards were shot, one fatally, and a large sum of money taken from them at the Seeburg Corporation plant located at 1500 North Dayton Street in Chicago. An indictment was later returned charging the defendant and a man named Gene Lewis with murder, attempt murder and armed robbery. A motion for a severance having been allowed defendant and Lewis were tried separately.
A pre-trial motion was filed seeking the suppression of both a lineup identification and any in-court identifications of the defendant. After a hearing, the trial court sustained that part of the motion relating to the lineup identification on the ground that defendant was neither advised of his constitutional rights prior to the lineup, nor was he represented by counsel at the lineup. The trial court also ruled that the lineup was not unnecessarily suggestive, and reserved ruling on that part of the motion relating to the in-court identifications to determine whether they had a source independently of the lineup confrontation, without objection on defendant's part.
Monica Jagielnik testified for the People at the instant trial that she was employed as a receptionist at the Seeburg Corporation on November 8, 1968. She testified that on three occasions prior to that date a man identified by the witness as the defendant entered the reception area of the plant through a door located at 850 West Blackhawk Street and asked her where the employment office was located; the witness stated that there is a sign on that door which reads, "Employment Office, 1500 Dayton Street." She testified that the defendant was alone on two of the occasions and that on the third occasion he was accompanied by persons identified by the witness as Gene Lewis and a man named Holt.
Miss Jagielnik further testified that the third time that the defendant was at the plant was one week prior to the incident, which was a Friday, and that the defendant was in the plant on each of those occasions at approximately 4:00 P.M. The witness also stated that the Thillens guards made a regular stop at the plant on Fridays, arriving promptly at 10:50 A.M., and that they arrived at the plant promptly at 10:50 A.M. on November 8, 1968.
Rubin Aviles testified for the People that he was employed by the Seeburg Corporation on November 8, 1968, assigned to the second floor of the building. On that day the witness observed a person identified by him as Gene Lewis walking to a second floor rear door which led to the third floor of the building. The witness testified that he (the witness) then went downstairs where he was asked directions to the third floor of the building by a person identified by him as the defendant. Mr. Aviles testified that he observed the defendant proceed up the same stairwell as did Lewis shortly before.
Mr. Aviles stated that he was on his way back upstairs by way of the same stairwell shortly thereafter and that he observed the Thillens guards lying on the stairs. The witness testified that he did not see the guards enter that particular stairwell on November 8, 1968, but that he had observed them use that stairwell "before on a Friday."
Chester Koziol testified for the People that he was one of the Thillens guards who was shot and robbed on November 8, 1968. He testified that he and his partner, Karl Galamaga, arrived at the Seeburg Corporation plant on that date, at their regular time, to cash the Seeburg employees' payroll checks during the employees' lunchtime. Koziol testified that he and Galamaga were dressed in police-type uniforms and that each was armed with a .38 caliber revolver. He stated that he and Galamaga were directed to cash checks on the third floor of the plant and that they entered the plant through the door leading to the reception area in order to go to the third floor. He testified that each man was carrying cash money in coins and currency, and that Galamaga was carrying an amount in excess of $40,000. The witness testified that the currency was folded lengthwise, with the green side facing out, to facilitate and speed the cashing of checks; he stated that this manner of folding the currency was a custom of the Thillens Service.
Mr. Koziol testified that after he and his partner passed through the reception area of the plant they went up a stairway to the second floor, across a small plant area, and into a stairwell leading to the third floor of the plant. The witness testified that as they neared the third floor landing, he heard a shot, observed Galamaga falling and, out of the corner of his eye, saw someone above him with a gun. The witness testified that he jumped halfway down the stairs, took hold of the banister, was shot in the upper part of the back, and fell face down on the landing between the second and third floors of the building. Mr. Koziol testified that after Galamaga was shot and prior to being shot himself, he heard footsteps on the stairs which sounded like more than one pair of feet. The witness stated that he did not lose consciousness after he was shot, that he heard the sound of falling money, and that someone picked up the money and took his gun from his holster. The witness was unable to identify the person who was holding the gun on him after Galamaga was shot, other than to say that he was a male Negro wearing large sunglasses covering half his face. Galamaga died as a result of his wounds.
John Untinen testified for the People that he was employed by Seeburg Corporation on November 8, 1968 and that he desired to have his check cashed. He testified that he proceeded to the stairwell at the rear of the building and observed the guards lying on the stairs.
John McCoy testified for the People that he had known the defendant for a period of thirteen or fourteen years. The witness testified that at about 11:30 A.M. on November 8, 1968, he telephoned the defendant's residence but the defendant was not at home. The witness testified that he spoke to the defendant at about 1:00 or 2:00 P.M. later that day, and informed the defendant that he (the witness) wished to bail his wife out of jail. The witness testified that he then went to defendant's residence where the defendant gave the witness some money. He testified that there was a fold in the money given to him by the defendant which was the same as that in the money taken from the Thillens guards.
McCoy testified that he, the defendant and a girl named Cen Cross drove to a barber supply shop, from which the defendant emerged with a bag. They then proceeded to the vicinity of 46th Street and Prairie Avenue where defendant left the vehicle with the bag. Defendant later returned with the bag, the girl was driven to a location and dropped off, and the defendant and the witness proceeded to the apartment of a man named "Gene" located at 14th Street and Loomis Avenue. The defendant and Gene entered a bedroom and conversed a short while, and when they emerged the defendant was still in possession of the bag. The witness described the bag as "a little leather bag which is about nine or ten inches long and about three or four inches wide." The witness further testified that he did not have occasion to observe the contents of the bag. The witness further testified that he was arrested by the police the following day, and that some of the money given to him by the defendant was confiscated by the police. He stated that additional funds given to him by the defendant were also confiscated by the police upon a search of the witness' residence.
Police Officer Jerry Sullivan testified that he arrested John McCoy on November 9, 1968, and that he recovered from McCoy currency which was folded in the same ...