APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
Defendant, Clarence Briggman, was charged with aggravated battery causing great bodily harm (Ill. Rev. Stat. 1971, ch. 38, par. 12-4(a)), aggravated battery using a deadly weapon (Ill. Rev. Stat. 1971, ch. 38, par. 12-4(b)(1)) and armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2). After a jury trial he was found guilty on all three counts, and was sentenced to a term of 4 to 10 years on the count charging him with armed robbery. On appeal defendant contends that (1) the trial court erred in refusing the jury's request to hear a certain portion of the testimony; (2) the prosecutor committed reversible error by reference to defendant's prior illegal activity; (3) defendant's guilt on the armed robbery charge was not proven beyond a reasonable doubt; and (4) both aggravated battery convictions arose from the same conduct.
At trial the following evidence was adduced. The complaining witness, Larry Koenig, testified that on June 11, 1972, at approximately 1:25 A.M., he left his home at 5734 North Winthrop Avenue, Chicago, Illinois, to purchase a newspaper. As he walked south on Winthrop toward the elevated station at Bryn Mawr Avenue, defendant demanded money and hit Koenig once with a piece of lead pipe. Defendant reached into Koenig's coat pocket and took approximately $12. Koenig was able to grab the pipe and a 7- or 8-minute struggle with defendant ensued. Defendant ran north and Koenig proceeded south on Winthrop to obtain aid. After Koenig had walked less than one block, defendant came up from behind and proceeded to hit Koenig 12 or 15 times in the face with a broomstick. This second struggle lasted 4 or 5 minutes, whereupon defendant fled again. The police arrived shortly thereafter, and Koenig described his assailant. As Koenig was being driven to the hospital in the squad car, he observed defendant standing on the northwest corner of Bryn Mawr and Winthrop, and identified him as his attacker. Defendant was arrested approximately 3/4 of a block from the scene of the second assault.
Koenig further testified that, during the entire incident, he observed defendant three times. He first noticed defendant when defendant was 5 to 6 feet away and was walking toward him. During the first scuffle Koenig viewed defendant face-to-face for 7 or 8 minutes. The area was illuminated by lights from surrounding apartments and from a street light 12 to 15 feet away. During the second scuffle, Koenig again observed defendant's face. At this time Koenig was bleeding slightly, but his vision was unimpaired. He described the assailant to the police as "short, moustache, tan corduroy jacket, blue shirt, blue jeans, and scuffed-up shoes." Defendant matched this description when he was identified by Koenig on Bryn Mawr.
On cross-examination Koenig testified that he wears glasses for reading. He recalled that there were very few persons on the street at the time of the incident, but lights in the apartments were on. Koenig stated that when he was struck he knew his nose was broken, but he was not in tremendous pain, and during the entire incident, he was not upset.
Chicago Police Officer David Sandlund testified that on June 11, 1972, at approximately 1:25 A.M., he responded to a radio call and proceeded to 5702 North Winthrop. He observed Larry Koenig standing in the street in a dazed condition, bleeding from his face and with bruises about his eyes. Koenig told him that he had been robbed and described the offender. Koenig was placed in the squad car to be transported to the hospital. While proceeding south on Winthrop, Koenig observed defendant and yelled "That's the man." When he was stopped and arrested, defendant was walking southbound and was at the northwest corner of Winthrop and Bryn Mawr. Defendant perfectly matched the description previously given by Koenig.
On cross-examination the officer testified that some apartment lights were on and that there were approximately 10 street lights on that block. No weapons were found on defendant's person; he had in his possession at the time of his arrest $3.73. The officers attempted to search the area, but neither the pipe nor the broomstick was found. The officer testified that "empty fields" in the area made a thorough search difficult. However, keys and loose change were discovered in the grass at the location of the initial attack.
It was stipulated by the parties that if Koenig's treating physician from Weiss Memorial Hospital were called to testify, he would state that in the early morning hours of June 11, 1972, he examined Larry Koenig and determined that he had suffered a fractured nasal bone and multiple lacerations of the face.
Defendant, Clarence Briggman, then testified that on the evening of June 10, 1972, he had been at Bryn Mawr Beach. He spent the evening walking on the beach and talking to persons whom he knew from seeing there. Defendant was unable to name any of the persons he was with that evening. At approximately midnight he left the beach to return to his home at 4826 North Winthrop. He walked to Bryn Mawr and then turned south onto Winthrop. At this point he was stopped by the police and arrested. Defendant stated that he stopped nowhere between the time he left the beach at midnight and the time of his arrest. He also denied ever previously seeing Larry Koenig or ever striking or robbing him.
After the jury had been instructed in the law, one of the jurors asked the trial court if he could ask a question. The court responded:
"No sir. You may return to the jury room. If there is a question and the foreman is elected you may write the question on a piece of paper and deliver it to the bailiff. If it pertains to the case I will consider it. You may not get an answer, you will get a response, but you may not get an answer."
During the deliberation of the jury, the trial court received a note from the jury which read:
What direction was defendant walking when he was arrested by the policemen as testified to by the policeman.
The court instructed the bailiff to "tell the jury there is no answer to the question." The jury resumed deliberation and thereafter returned verdicts of guilty on all counts.
Two recent Illinois Supreme Court opinions, People v. Queen, 56 Ill.2d 560, 310 N.E.2d 166 and People v. Pierce, 56 Ill.2d 361, 308 N.E.2d 577, discuss the issue of a jury's request to review testimony. Both opinions adopt the view that it is within the discretion of the trial court to allow or refuse a jury's request to ...