APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 15, 1973.
Shortly after midnight on February 7, 1970, a robbery took place in an office building located at 130 North Wells Street, Chicago. As John Tatum, a janitor, was vacuuming the carpet of the lobby, Leon Walker, another janitor, left the building by walking through a revolving door near where Tatum was working. After Walker's departure the door continued to turn and Tatum looked up into a gun barrel. The gun was held by a man whom Tatum later identified as the defendant, Harry Scott. The intruder had a handkerchief over his mouth and was wearing a leather jacket and yellow slacks. An accomplice followed him into the lobby. A "holdup" was announced and Tatum was pushed into an elevator. Tape was placed over his mouth and eyes and his hands were secured behind his back. His money, watch and keys were taken.
At the same time Fred Yates, another janitor, was working in the basement of the building. Someone called for the elevator which was located there and Yates brought it up to the first floor. When he opened the door he saw a gun an inch from his face. He was shoved to the back of the elevator and turned around. His hands were tied and he was blindfolded and robbed. He was then transferred to the elevator in which Tatum had been placed and they were taken to the top floor of the building.
William Murray, a computer operator who was working in the building, was also robbed by two armed men. He and Roger Hoffman, also a computer operator, were led to the top floor and placed with Tatum and Yates. Later, the four freed themselves from their bonds and summoned the police.
Police officers responded to the call, spoke with Tatum, Yates, Murray and Hoffman and received a description of at least one of the robbers from Tatum. The investigation of the robbery was assigned to Detective Bernard Stahl. He discovered that Leon Walker had previously been arrested with Harry Scott (See People v. Scott & Walker (1968), 100 Ill. App.2d 473, 241 N.E.2d 579), and when he showed Tatum some photographs including one of Scott, Tatum identified Scott as one of the robbers.
Early on the morning of February 10th Stahl arrested Walker. He told Walker that Scott had been identified and that the police believed Walker was his confederate. Walker then stated that two or three days before the robbery he had discussed with Scott how simple it would be to "pull a stickup" at the building where he worked, and that on his way out of the building on February 7th he noticed Scott and another man near the door. He gave the police Scott's address.
Immediately several detectives, including Stahl, went to that location, obtained a key from the desk clerk and entered Scott's apartment unannounced. The officers awakened Scott, arrested him for the robbery and seized a quantity of checks from the top of the dresser opposite his bed. Several police officers were present when he was questioned at the police station. According to Stahl he made an oral statement confessing his participation in the crime.
Scott was indicted in separate counts for the armed robbery of Tatum and Yates. Prior to his trial, he moved to suppress the evidence taken from his apartment and the statement made after his arrest. The court denied both motions. The case was tried without a jury. At the conclusion of the trial the court acquitted Scott of the robbery of Yates but found him guilty of robbing Tatum. He was sentenced to serve from five to ten years in the penitentiary.
• 1, 2 Scott advances many contentions in this appeal but we need not consider all of them as his conviction must be reversed because of trial errors. The principal error was the State's failure to comply with the repeated mandate of Illinois reviewing courts that all material witnesses must be called to testify if a defendant claims his confession was coerced. At the hearing on the motion to suppress the statement he made after his arrest, Scott testified that when he was questioned at the police station Detective Stahl and three other officers were in the room with him. These officers were identified in subsequent testimony as Sergeant Kelly and Detectives Olsen and Utter. Scott asserted that when Stahl went out of the room a plastic bag was placed over his head to induce his confession; he was beaten in the stomach and lost consciousness. When he revived he was asked to sign a confession but he refused and was beaten again and again with fists and a stick and was knocked unconscious two more times.
The only prosecution witness to rebut this testimony was Stahl who denied Scott's charges. Kelly, Olsen and Utter, the officers accused of the brutality (and who were named in the State's list of witnesses as witnesses to the oral statement), were not called to testify and their absence was not explained. In People v. Armstrong (1972), 51 Ill.2d 471, 282 N.E.2d 712, the defendant's conviction was reversed because the prosecution failed to produce or explain the absence of all the material witnesses to the making of his alleged involuntary statements. The court, in holding that the statements were improperly admitted into evidence, cited an unbroken line of cases enforcing the rule that:
"* * * when the voluntary nature of a confession is brought into question by a motion to suppress, the State must produce all material witnesses connected with the taking of the statements or explain their absence. As was stated in People v. Wright (1962), 24 Ill.2d 88, 92, `The burden of proving a confession is voluntary is one which the State must assume when the admissibility of a confession is questioned on the grounds that it was coerced. Only by producing all material witnesses connected with the controverted confession can the State discharge this burden.'"
• 3-5 A second error of reversible magnitude pertains to the checks taken from Scott's room. The checks were received in evidence over his objections that they were seized in violation of his constitutional rights and that no proper foundation had been laid for their admission into evidence. Scott's arrest was based on probable cause and was valid. (Ker v. State of California, 374 U.S. 23, 10 L.Ed. 726. People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57.) The checks were in plain view close to his bed, their seizure was reasonable and the motion to suppress, and the objection on this ground renewed at the trial, were correctly denied. (Abel v. United States, 362 U.S. 217, 4 L.Ed.2d 668; People v. Barbee (1966), 35 Ill.2d 407, 220 N.E.2d 401.) Whether it was proper to admit the checks into evidence is another matter. The checks were imprinted with the names of the Amalgamated Meat Cutters' Credit Union and Stanford D. Scott. There was testimony that some offices in the building at 130 N. Wells Street had been forcibly entered the night of the robbery but there was no testimony that checks were either stolen or missing from these offices. If the checks were stolen from the Wells Street building at the time the robbery was committed, their possession by Scott would have been evidence of his presence in that building. Evidence of a defendant's commission of other crimes is admissible to establish a material fact such as his intent, motive or identity. (People v. Dewey (1969), 42 Ill.2d 148; 246 N.E.2d 232; People v. Scott (1968), 100 Ill. App.2d 473, 241 N.E.2d 579.) However, before such evidence can be received it must first be shown that a crime actually took place and that the defendant committed it or participated in its commission. The checks tended to establish Scott's commission of a separate crime, and the trial court, in its summation of the evidence at the conclusion of the trial, stressed Scott's possession of the checks as proof of his guilt. In view of the lack of testimony that the checks were the property of the credit union and Stanford Scott or that they were stolen the night of the robbery from offices occupied by them, an inadequate foundation was laid for their admission and their reception into evidence and consideration by the court was prejudicial to the defendant.
• 6, 7 There is no merit to Scott's contentions that his conviction for robbing Tatum was inconsistent with his acquittal of the charge of robbing Yates, or that his in-court identification was induced by impermissibly suggestive pretrial identification procedures. As this case will be remanded for a new trial, other alleged errors need not be considered since ...