APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1973.
The defendant, along with three co-defendants, was indicted by the Grand Jury for the offenses of murder and attempted armed robbery. After a jury trial he was found guilty of both offenses and sentenced to the Illinois State Penitentiary for a term of 30 to 40 years. In this appeal the defendant seeks to reverse those convictions on the grounds that: (1) he was charged under an invalid indictment, (2) his arrest was without probable cause thus tainting his later statements and identification by eyewitnesses, (3) identification testimony introduced at trial should have been suppressed because he was not informed of his right to counsel at a pre-indictment lineup, (4) the lineup at which he was identified was conducted so as to violate his constitutional rights, and (5) the pretrial hearing concerning the suppression of eyewitness identification was so restricted by the trial judge that a new hearing and trial should be granted.
On December 12, 1969, between 9:30 A.M. and 9:45 A.M. four men attempted to rob the Gateway National Bank on South Stony Island Avenue in Chicago. During the attempted robbery a bank guard, Richard Mix, was critically wounded by one of the offenders and died in Jackson Park Hospital four days later. The defendant and three other men were subsequently arrested and indicted for the attempted robbery and murder. The case against defendant Bates was severed from the other co-defendants, and after a separate trial he was convicted of both offenses and sentenced as aforementioned.
The pertinent facts of the case were adduced during the course of two pretrial hearings and the jury trial that resulted in the defendant's conviction.
Gloria Clifford testified at trial that she was employed at the bank on the day of the attempted robbery. She stated that she saw a man later identified as Eddie Franklin, one of the co-defendants, scuffle with and shoot Richard Mix. She further stated she identified Franklin at a lineup held on December 29, 1969.
Jacqueline Siller testified at trial that she was an employee of the bank on the day in question. On the morning of December 12, 1969, she was distracted from her work by loud talking and the sound of a gunshot. She ran from her chair to look in the direction of the noise when a man, whom she later identified to be the defendant Bates, ran past her toward the front of the bank. She was knocked to the floor when another person fell across her legs. She saw the defendant with a gun in hand standing about 35 feet from her, facing her. She had an unobstructed view of the defendant for ten to fifteen seconds, and she heard him say two short sentences. She also saw him again through the window of the bank as he was fleeing north on Stony Island Avenue. After the police had arrived she described the man she saw as being short, Negro, coloring a little darker than her own, and wearing a tan or brownish colored three-quarter length coat.
Thomas Campbell testified at trial that on the morning of the attempted robbery he was in the bank to transact business. When he heard someone announce a "stickup" he turned and faced a man holding a gun. He heard the man speak twice and a few seconds later saw him put his gun in his belt and leave by the front door. At trial, in response to the State's Attorney's questions, Mr. Campbell stated that he could not absolutely identify the defendant but stated that if the defendant had a slight beard he would be the same man he saw the morning of the occurrence. He further testified that he described the offender to the police as being five feet six to seven inches tall, medium build, 145 pounds and having dark complexion, and wearing a Russian-style Mouton Lamb cap and a three-quarter length coat with a brown collar.
William Gaines testified that he was in the Gateway Bank on the morning of December 12, 1969. He described the man he saw shoot Richard Mix and stated he now knew his name to be Franklin. He further testified that he also saw two men at the door of the bank, the shorter of the two held a gun. He later saw the same man through the bank window fleeing the scene. Mr. Gaines could not be certain that the defendant was the man he saw in the bank but stated he did resemble him. He described the man to the police as being young with light brown skin wearing a three-quarter length coat and a Russian-type hat with fur.
The testimony of Doris Fair and Marcia Kazwara, two employees of the bank on December 12, was substantially the same in that they both stated that they saw a man they now know to be Eddie Franklin shoot Richard Mix. They were both forced at gunpoint by a third man, who was neither Franklin nor the defendant, to go to the vault area of the bank. There they were given pillow cases and told to fill them with money. Mrs. Kazwara testified that when she told the offender that the vault could not be opened because they did not have the combination, the man swore, turned around and walked out of the building.
James Digby testified that he was also an employee of the bank on December 12, 1969. He witnessed the attempted robbery, heard the gunshot and saw Richard Mix fall to the floor. He stated that he saw one of the offenders take a bag to the commercial teller and order him to fill it. The offender then stopped by the door for a minute or two and then left. Mr. Digby further stated that the defendant looked like the man he saw by the door.
On April 6, 1970, a pretrial hearing was held on the defendant's motion to suppress his arrest and confession during which the following pertinent facts were disclosed through the testimony of the witnesses. Detective James Craig of the Chicago Police Department testified that on December 15, 1969, he became involved in the investigation of the attempted robbery and homicide that had occurred at the Gateway Bank. Detective Craig testified that he received information on December 21, 1969, from an undisclosed informant that the defendant was one of the participants in the attempted robbery. The informant told him that the defendant was then residing with a man named Buddy Gray and that the informant had seen guns at the apartment the two men shared. At that time Gray told the informant that the guns had been used in the shooting at the Gateway Bank. Gray also told the informant that the defendant Bates had participated in the attempted robbery. Craig further testified that he had received information from the informant in the past on about eight occasions resulting in three felony convictions and other misdemeanor convictions. Craig further testified that on the basis of this information he participated, along with other officers, in the warrantless arrest of defendant and Gray on December 22 at about 4:15 A.M. The arrest occurred as the suspects stood in an area marked as a cab stand on 43rd Street between Calumet and Prairie Avenues in the City of Chicago. Craig transported the defendant to Area 1 Police Headquarters and there at approximately 5:00 A.M. advised the defendant of his right to remain silent, that anything he said would be used as evidence against him, that he had a right to have a lawyer present, and that if he could not afford a lawyer, one would be appointed for him.
Detective Lucius Moore, Chicago Police Department, also participated in the arrest of the defendant. He testified at the hearing that while at the police station during the early morning hours of December 22, the defendant and Gray conversed alone on two separate occasions. Sometime around 5:00 A.M. or 6:00 A.M. that morning the defendant made a voluntary statement to Moore and Commander Flannagan of the Chicago Police Department, in which he related the events surrounding the homicide and attempted armed ...