APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO and the Hon. ROBERT J. DOWNING, Judges, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 4, 1974.
Defendant was found guilty of the armed robbery of a Chicago pharmacy. Tried by the court without a jury, he was held accountable for the conduct of the actual perpetrators of the crime. Judgment was entered and defendant was sentenced to a term of two years to two years and a day. At the time of trial defendant was on probation on seven charges of burglary and attempt burglary. Following his armed robbery conviction a revocation hearing was held and his probation was terminated. He received concurrent sentences of two to four years on these charges. Defendant's appeals from his armed robbery conviction and the termination of his probations have been consolidated.
Defendant raises six contentions in his appeal from his armed robbery conviction: (1) The State failed to introduce any evidence that a dangerous weapon was employed in the commission of the alleged offense; (2) the identification of him was based on inadequate observation and fails to connect him, beyond a reasonable doubt, with the commission of the offense; (3) his conduct was inconsistent with the behavior of a man involved in an armed robbery; (4) the State failed to show that despite his drugged condition he nevertheless possessed the intent to promote or facilitate the commission of an armed robbery; (5) the only evidence linking him to the offense was obtained by means of his unlawful arrest and detention; and (6) the incompetence of his trial counsel deprived him of a fair trial.
Defendant was charged with the accountability for the armed robbery of a drug store located at the intersection of Grand and Mobile in Chicago by co-defendants Raymond Burke and Burt Scribner. Both co-defendants pleaded guilty to the offense after an unrecorded conference in chambers.
At trial Joseph Fedor, owner of the pharmacy and the victim of the crime, did not testify. It was stipulated, however, that Fedor would have testified that on November 24, 1969, at approximately 2:00 P.M., his store was robbed of a quantity of narcotics and currency by two men, one of whom was armed with a gun. Neither of these men was defendant.
Patricia Wood testified for the State that at approximately 2:00 P.M. on November 24 she was in the kitchen of her first floor apartment at 2228 North Mobile. Through the kitchen windows she noticed a car, which she described as a white Oldsmobile, back down the alley and come to rest beneath her kitchen window. The car then backed up again, and from her bedroom she saw that the Oldsmobile was directly beneath the windows of this room. She estimated the distance from her window to the car to be less than 20 feet. One man got out of the car and walked toward Grand Avenue. The man behind the wheel moved the car back and forth about five or ten feet. As Mrs. Wood watched this scene the driver looked up at her. She estimated that she was able to observe him in this pose for a period of from between 15 and 30 seconds. She was able to see that the rear license plate of the car was missing. After a few minutes the man who had left the car returned carrying a brown bag. Mrs. Wood could describe him only as being dark and wearing dark, perhaps black, clothing. The man got into the rear of the Oldsmobile, looked out the back window and then lay down on the floor as the car drove away. Assuming something was amiss, Mrs. Wood walked to the drug store where she learned of the robbery. She described to a police officer investigating the crime what she had seen in the alley. At a police lineup she pointed out defendant as the driver of the Oldsmobile.
Officer Pardell of the Chicago Police Department testified that on the day in question at about 2:00 P.M. he was on patrol in his squad car. He received a radio message that the pharmacy at Grand and Mobile had been robbed and a "look-out" message describing "the offenders and their vehicle." He thereupon proceeded to the area of the robbery. As he turned down the 2100 block of McVickers he observed defendant and Scribner. Noticing that Scribner was carrying a bag, he approached the two men observing that "the description became closer to that one of the wanted persons as described in the look-out message." He got out of his squad car and saw that the bag bore the advertising legend of the Grand-Mobile Pharmacy. He placed both men under arrest. He found no proceeds of the robbery in the possession of defendant. Scribner told the officer where in the get-away car the gun used in the robbery could be found.
Detective James Phalen of the Chicago Police Department testified that while investigating the drug store robbery he proceeded from the scene of the crime to a location about two blocks away where a light colored Oldsmobile bearing no license plates had been found. A search of the car revealed a revolver, a quantity of narcotics, commercial narcotics and a quantity of coins. Detective Phalen then drove to the Fifteenth District Police Station. There he conducted the lineup in which defendant participated. After the lineup, defendant made an oral statement to Phalen. Defendant told him that he had been driving with Burke and Scribner when they passed the Grand-Mobile Pharmacy. Burke stated that it looked like a good place to "stick-up" and directed defendant to drive into an alley just south of the drug store. He proceeded into the alley and stopped. Defendant there told Burke and Scribner that he did not want to participate in the robbery. During the time they were in the alley no one got out of the car. Defendant drove to another location where he got out of the car. His co-defendants drove away. Defendant then bought some groceries. Shortly thereafter, while walking toward his girl friend's house, defendant happened upon Scribner. They were arrested together. Phalen could recall nothing in defendant's statement to the effect that Burke and Scribner had given him any pills.
Linda Neal, defendant's wife, testified on his behalf. On the date of the crime they were not yet married. She received a phone call from defendant on the afternoon of November 24, at which time she requested that he purchase a loaf of bread. After she learned of defendant's arrest, she went to the police station and was present when defendant made a statement to Detective Phalen that Burke and Scribner had given him "pills" that afternoon. When Mrs. Neal saw him at the police station, defendant was still "high."
Defendant testified on his own behalf that he had been driving with Burke and Scribner on the afternoon of the robbery. Earlier that day, after he complained of a headache, he was given a multicolored pill by Burke. Burke and Scribner, who had been drinking, began talking of committing a robbery. Burke reached under the front seat of the car, pulled out a gun and told defendant to turn down a street. Burke then got out of the car. As he left, defendant told him, "I don't want nothing to do with this. I'm leaving." Defendant, with Scribner still in the car, pulled out into the street and drove about four blocks. He then got out of the car and Scribner drove off. Defendant, after making a phone call, bought a loaf of bread. He called a cab and was waiting for it near a bus stop when he again saw Scribner. Defendant asked him what had happened. Scribner replied, "We did it," whereupon he pulled a Grand-Mobile Pharmacy bag from beneath his coat. It was at this time that they were arrested.
The court on this evidence found the defendant guilty, stating, "We are dealing with the driver of a car in a robbery."
• 1 It is defendant's first contention that the State failed to introduce any evidence that a dangerous weapon was employed in the commission of the offense. There is no merit to this claim. The stipulated testimony of ...