APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
After a jury trial, Edgar Ross was found guilty of murder and armed robbery. The trial court sentenced the defendant to the Illinois State Penitentiary for a period of not less than 70 years nor more than 100 years. On appeal defendant contends:
(1) He was not proven guilty beyond a reasonable doubt;
(2) The trial court erred by allowing into evidence the police officer's testimony that the identifying witnesses had made prior out of court identifications of the defendant;
(3) His Fifth Amendment rights were denied when the prosecution introduced evidence that the defendant remained silent at a lineup and the prosecutor also argued to the jury that defendant's silence was evidence of his guilt;
(4) Prosecutor's closing argument was so prejudicial as to deny defendant's right to a fair trial; and
(5) He was denied the effective assistance of counsel.
The facts are as follows:
On January 10, 1969, at approximately 10:00 P.M., two men entered D.D.'s Bar-B-Q at 5430 South State Street, Chicago, Illinois. The shorter of the two men announced a stickup and fatally shot James Blay, a customer, when he failed to move quickly. The taller assailant was in the rear of the restaurant with his gun drawn during the robbery. Gladys Ambrose, manager of the restaurant, identified the defendant as the taller assailant. She testified that defendant wore a mask which hung from the top of his nose and a khaki jacket. She further testified that she was able to identify the defendant because of his physique. Sam Franklin, a customer of the restaurant, testified that the defendant was wearing a green army field jacket.
Defendant and his mother testified that he was home at the time the crime was committed. Maurice Hall, a customer of the restaurant who was present at the robbery, testified that he was unable to identify the defendant as the taller robber. Defendant's first contention on appeal was that he was not proven guilty beyond a reasonable doubt. The basis for defendant's contention was that the testimony of the two identifying witnesses was weak and conflicting.
• 1, 2 Gladys Ambrose testified that she knew the defendant and had seen him before. Ambrose had ample time to view the defendant at the time of the robbery and was able to identify him because of his physique and the upper part of his face which was not covered by the mask. Sam Franklin also identified the defendant. The defendant was positively identified by two witnesses. Furthermore, the fact that the defendant produced an alibi, supported by one witness does not, in and of itself, constitute reasonable doubt of his guilt. Conflicts in the testimony are to be resolved by the trier of fact who is not obliged to believe the alibi testimony of the defendant and his mother over the positive identification of Ambrose and Franklin. (People v. Setzke, 22 Ill.2d 582, 586, 177 N.E.2d 168.) The trier of fact makes the determination of the witnesses' credibility and we find that the evidence is not so unsatisfactory as to create a reasonable doubt of defendant's guilt. That determination will not be disturbed. People v. Holt, 124 Ill. App.2d 198, 201, 260 N.E.2d 291.
Defendant's second contention on appeal was that the trial court erred by allowing into evidence the police officer's testimony that the identifying witnesses had made prior out of court identification of the defendant. As the court in People v. Williams, 117 Ill. App.2d 34, 44, 254 N.E.2d 81, stated:
"There was no objection to this testimony at the trial, so any error which may have occurred in its admission is deemed to have been waived. People v. Dial, 95 Ill. App.2d 345, 238 N.E.2d 122; People v. Hester, 49 Ill. App.2d 308, 200 N.E.2d 3. Even if hearsay testimony had been improperly admitted reversal is not warranted where the same matter has been proved by independent and properly admitted evidence. People v. Frenchwood, 28 Ill.2d 139, 190 N.E.2d 767. The identification testimony of the robbery victims in this case was sufficient to render the officer's testimony mere surplusage, and we find that no prejudice resulted therefrom."
• 3 In the case at bar, the identication testimony of Ambrose and Franklin was sufficient to render the officer's testimony mere surplusage, and we ...