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People v. Werhollick

AUGUST 19, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


The defendant was found guilty by a jury of armed robbery and not guilty of attempt murder and was sentenced to not less than 3 nor more than 10 years in the Illinois State Penitentiary.

On this appeal, three issues are raised: (1) Whether the trial court erred when it denied the defendant's motion to suppress the in-court identification testimony; (2) Whether the defendant was proven guilty of armed robbery beyond a reasonable doubt; and (3) Whether comments by the prosecutor during the trial and in closing argument were so prejudicial to the defendant as to require reversal or a new trial.

Defendant seeks an outright reversal or, in the alternative, a new trial. For reasons which follow, we affirm the judgment.

Donald Lingo, the principal witness for the State and victim of the crime, testified that he spent most of the day on July 26, 1970, racing his motorcycle at the "U.S. 30 Drag Strip" in nearby Indiana. Afterwards, he and his business partner went to a carnival. Around 9 P.M., they drove to a tavern in Roseland called "The Playpen Lounge." They had been drinking at the carnival and continued to do so at the tavern. Lingo's partner stayed only a short time, but Lingo stayed on until approximately 10:30 P.M. He then left the bar and proceeded toward his car. There he was approached by one of two men standing nearby. As he opened the car door, the man shoved a pistol in his face and demanded that he turn over his money.

Lingo stated that he first tried to reason with the man but the man was not in a listening mood. The man searched him and took $600 out of his left front pocket. The man ordered Lingo to turn around. Lingo suddenly broke toward the entrance to the bar and while running he was shot in the arm. He stumbled on into the tavern. Police were summoned. The confrontation lasted approximately 5 minutes during which time Lingo stated that he was able to clearly observe the robber who was standing only a foot or so away.

Lingo changed part of his story during cross-examination. He admitted having been at the tavern in the afternoon and having several drinks there. This was contrary to his story about having been at the drag strip during the afternoon.

Shortly after the robbery, Officers Schewe and Stalnaker interviewed Lingo for about 1 hour at Roseland Community Hospital. Both officers testified that he responded to all their questions and that to them he appeared to be sober.

The following day Lingo went to police headquarters. He was shown numerous photographs by Officer Schewe. Lingo picked one and identified it as a photograph of the man who had robbed and shot him. That man was the defendant.

Defendant was taken into custody on the afternoon of August 11, 1970, around 5:30 P.M. on the roof of a building by Officer Schewe. Apparently there was no arrest warrant — at least there is no evidence of one appearing in the record. Schewe then contacted Lingo and asked him to come down to the station for the purpose of viewing a lineup. The lineup was conducted around 11 P.M. Lingo identified the defendant out of four white males as the man who robbed and shot him.

Defendant testified at the hearing on his motion to suppress that he was never advised of any right to have an attorney present at the lineup. He stated that he had asked to have an attorney present but that his request was refused. His motion to suppress the in-court identification testimony stemming from the lineup was denied.

At the trial, in addition to the above testimony, the victim Lingo testified on cross-examination by the defense that after the incident he had a conversation with the defendant's brother-in-law Fields in another tavern, but denied that he offered to drop the prosecution for $1000 and testified that, on the contrary Fields offered him $1000 to do so.

The following witnesses testified for the defense at the trial. A lady bartender at the tavern testified that Lingo came in with a friend around 2:45 in the afternoon and remained there for approximately 1 1/2 hours during which time he had five or six drinks. She further testified that the defendant and his brother-in-law were in the bar around 4:30 P.M. She stated that Lingo returned alone around 8:30 P.M. and drank until 9:30 P.M. A woman then joined him. During the time he was in the tavern that night, the bartender said that Lingo had five or seven more drinks. She added that in her opinion he was "getting drunk" when he finally left. He returned 2 minutes later, saying that he had been shot and she saw blood on his arm.

Another witness for the defense testified that he was in his automobile about 10 feet from the scene of the crime. He saw two men holding a third man against a fence. He stated that he knew the defendant and that defendant was not one of the three men because there was a difference in their builds. However, in rebuttal the State called Officer Schewe who testified that the same witness told him on the evening of the crime that he was ...

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