APPEAL from the Circuit Court of Sangamon County; the Hon.
PAUL C. VERTICCHIO, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 1, 1973.
The defendant was found guilty in a jury trial of the offenses of armed robbery, aggravated assault and assault, and judgments of guilty were entered upon the verdicts. A single sentence of not less than 4 nor more than 14 years in the Illinois State Penitentiary was imposed. The defendant and one David Schleyhahn were charged with the instant offenses in connection with an armed robbery of a grocery store in Springfield, Illinois in January of 1970. Schleyhahn entered a plea of guilty to the offense of armed robbery and was given a sentence of not less than 2 nor more than 10 years.
A consideration of the various issues assigned as error by the defendant upon this appeal makes necessary a recitation of the facts and circumstances as established by the evidence in this case.
On January 16, 1970, at approximately 9:00 P.M., two men wearing dark ski masks and carrying handguns entered a Kroger store on Second Street near South Grand in Springfield, Illinois. One man remained at the door of the store. He wore a gold jacket, black shoes, and a dark ski mask and was the taller of the two, described in the police report as being 6 foot 2 inches tall and 210 lbs. The shorter man, wearing a green plaid jacket, brown trousers and brown boots, and described in the police report as being 5 foot 11 inches and heavy build, jumped over the "speedy" checkout lane into the manager's office. There he ordered the manager (Lewis Clark), the co-manager (Chris Geals), and a cashier (Mary Jane Bretz), to leave the office. He then filled a brown paper grocery bag with about $9200 in cash, then left the office and went out the front door of the store. After two shots were fired outside, the taller man also left the store.
A meat cutter working in the store at the time of the robbery saw the transaction described above and called the police. It was estimated that the two men were in the store for five minutes. A description of both men and the gun held by the taller man guarding the door was given to the police by several people. The money taken had been initialed by one of the clerks with the letters "M.B.".
Margarete Chapman, a Kroger employee, saw a man running north across the parking lot as she returned to work at 9:00 P.M. Two people in a passing car Tom Burk and Nancy McNear also saw a man run north from the store and at Third and Allen they saw two men get into a car driven by a third person. The couple then drove past the car, described as a maroon Lincoln Continental with license number TP 2930, and saw one man take off his ski mask. They watched the car pass them and then proceed north on Fourth Street, and then returned to the Kroger store to give the information to the store manager and were able to give it directly to police who had then arrived. The police transmitted by radio the accumulated descriptions of the suspects and automobile, and officer Williamson saw a car fitting the description with the reported license number near a house at 740 Yates in Springfield at about 9:35 P.M. The defendant and David Schleyhahn came out of the house and walked toward the car. The defendant was dressed in clothing similar to the description of one of the robbers given to the police. The police arrested the two men and searched them and the car. Schleyhahn had a dark ski mask, a .38 calibre revolver, a brown paper sack, and $78 cash on his person when arrested. Another ski mask was found in the car. No weapon was found on the defendant Long and an unspecified amount of money taken from him was later commingled with the money in a brown paper sack taken from Schleyhahn which totaled $5235. A search of the house at 740 Yates revealed only a $50 bond.
All of the clothing worn by the defendant and Schleyhahn, as well as Schleyhahn's gun, was held as evidence by the police, and at the trial several store employees identified Schleyhahn's gold jacket when it was introduced into evidence against defendant Long and said the defendant's green plaid CPO jacket was similar to that worn by the shorter of the two robbers. The money recovered by the police was identified by the store employee as the money she had initialed "M.B." and taken during the robbery.
The defendant called several witnesses to establish an alibi. Bonnie Foster testified that she met Tony Mattera (since deceased) and the defendant at 7:30 P.M. on January 16, 1970 while they were playing pool at a tavern. After the game, all three of them went to the house at 740 Yates where the witness Patricia Smiley lived. Miss Foster and Mrs. Smiley estimate their arrival as about 8:30 or 8:40 P.M., and both testified that they all drank coffee, watched television, and talked until about 9:15 when Mattera and Miss Foster left, leaving the defendant behind with Mrs. Smiley. Mrs. Smiley said that shortly after Mattera and Miss Foster left, David Schleyhahn drove to the house at about 9:20 P.M. Mrs. Smiley testified that it seemed Schleyhahn was nervous, that he and Long talked for about 20 minutes in her kitchen, and she overheard Schleyhahn say he had something for Long which she believed to be money, and that she previously knew that Schleyhahn owed money to the defendant. When the two men left her house, they were immediately arrested according to Mrs. Smiley.
The state witness, officer Estill, testified that when he questioned the witness Smiley between 9:30 and 9:45 P.M. on the day in question, she told them the two men had been at her house only about 30 minutes and that she knew defendant Long but not Schleyhahn.
The defendant, at 5 foot 7 inches and 155 lbs., at 28 years of age, does not precisely match the police description of the shorter robber as being 20 to 25 years old, 5 foot 11 inches, and heavy build, but at the trial, three store employees said the shorter robber was 5 foot, 7, 8 or 9 inches tall, and indicated they gave the same description to the police as given on the witness stand rather than what the police report contained.
Defendant's counsel at the beginning of its case told the jury that if Schleyhahn were a witness, he would say the defendant was not one of the robbers. He called Schleyhahn's name in court three times without producing him as a witness. Nine other witnesses were similarly called without being produced at the trial. In his closing statement, the prosecutor pointed out to the jury the reasonableness of the inference to be drawn from the defendant's failure to produce Schleyhahn that he would not say that defendant was innocent.
Upon this appeal the defendant contends that he was denied an impartial jury; that trial counsel was incompetent; that the indictment was insufficient with reference to the aggravated assault offense; that he was incorrectly convicted of three offenses arising out of the same incident; that certain remarks in the prosecution's closing argument were prejudicial; and, finally, that the sentence imposed was disparate with the sentence imposed upon Schleyhahn.
The defendant's counsel had accepted a Mrs. Van Dyke as a juror without asking if she knew anyone connected with the prosecution. After her examination by the court, she had said she did not know the assistant state's attorney representing the state in the case. Upon examination by the state, she said she was a friend of the state's attorney, and after she had been accepted by defense and prosecution, the defense counsel asked permission to question the juror further and permission was granted for purposes of inquiry in the nature of explanation, but not for purposes of excusing the juror. Defense counsel thereupon undertook further examination of the ...