APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
A. MEIER, III, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Defendant was charged in Indictment No. 70-2841 with the offense of attempt robbery. He was found guilty in a bench trial and sentenced to the State Penitentiary for a term of two to five years. He was also charged in Indictment No. 70-2840 with armed robbery to which he pleaded guilty and sentenced to two to five years. Both sentences were to be served contemporaneously. This appeal is the subject of Indictment No. 70-2841. In it defendant raises two issues: First, that defendant was not properly advised of his rights to a jury trial and that he did not voluntarily waive those rights; and second, that the lineup identification of the defendant was suggestive and conducive to mistaken identity.
A brief statement of facts is in order. On May 10, 1970, at 11 P.M., two men walked into Brown's Fried Chicken take-out store. When they entered there was one customer, Patrick O'Shea, waiting to pick up his order. O'Shea saw the two men. An employee, Sam Lupo, directed the two men to another counter where orders were taken. O'Shea received his order and left. He proceeded out of the parking lot and drove around the block intending to return to the parking lot. A brown Oldsmobile came down the street with no lights, travelling fast. O'Shea testified that the occupants of the Olds looked like the two suspects he saw enter the chicken store.
Meanwhile in the chicken store Bill Murray, the owner of the store, after a short conversation with one of his employees and suspecting something was wrong climbed atop a set of shelves to get his pistol. He then hung over the top of the shelves, which were about seven feet high, and saw the two men who had entered the store pull out guns, aim them at Sam Lupo, and announce a "stick-up." Mr. Murray then said, "Stop, don't move. I have a gun, and I'll shoot. Turn around and back out. Put the guns away." They turned around towards Mr. Murray and backed past his vantage point, out of the door. When the police arrived Murray described the men as being black, males, moustached, wearing black hats and black shirts. He described defendant, Sanders, as wearing dark pants, 170 to 180 lbs. in weight, five feet nine to ten inches in height and carrying a small chrome .25 caliber revolver. The description given by Mr. Lupo and Mr. O'Shea concurred with that given by Mr. Murray who also stated that "the inside lighting was excellent" and he got a good view of their faces.
Between 11:10 and 11:20 two police officers were on patrol about ten or eleven blocks from the scene of the crime. They spotted a vehicle matching the description given in a report broadcasted on the police frequency and stopped it. Officer Nowdowski observed defendant Sanders with a bulge in his pocket and found a "loaded .25 caliber automatic." Another loaded pistol was found under the car seat. Defendant Sanders stated that he found a briefcase with four pistols in it and was walking to the police station to turn it in. Sanders saw his friend Harris drive by and asked him to drive to the station. Sanders then decided he needed other identification so they turned around to go back to defendant's apartment. That is why the car was headed away from the police station and the scene of the crime, at the time the defendant was apprehended.
Defendant was transported to the police station where after being advised of his constitutional rights he stated that he was thrown on the floor for ten minutes and kicked. But when he identified his picture in the lineup, which preceded immediately the alleged beating, defendant Sanders admitted that there was not dirt on his shirt or bruises on his face.
We disagree with defendant's claim on appeal that he was improperly advised of his right to a jury trial and that he did not knowingly and understandingly waive a jury trial. The trial record reads as follows after the trial commenced:
"THE COURT: Sign the jury waiver. For the record, Mr. Sanders and Mr. Harris, you each realize that you have a right to a trial by jury, you understand that?
THE COURT: And, by signing this document entitled `Jury Waiver', you are submitting the case to the court for its decision rather than jury of twelve men, you understand that?
THE COURT: You may proceed, Mr. Boback. (Assistant ...