APPEAL from the Circuit Court of Cook County; the Hon. FELIX
M. BUOSCIO, Judge, presiding.
MR. PRESIDING JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
A jury found Loring Britt and Charles Caples guilty of three counts of aggravated battery causing great bodily harm, three counts of aggravated battery using a deadly weapon and three counts of armed robbery. The trial court sentenced each defendant to three concurrent terms of not less than 7 nor more than 10 years on each of the three counts of armed robbery. The defendants assign several grounds for a new trial but do not question the sufficiency of the evidence.
On August 24, 1969, Ted Nicholas, the owner of the Rivers Edge Restaurant at 325 North Wells Street in Chicago, left the restaurant between 1 and 2 A.M. with Nick Franco, John Scuris, Edmon DeFiore, Steve Kutis and Terry Kutis. He went with Franco and Scuris to get his car which was parked at the receiving dock at the northeast corner of the building. The other three went to get their car which was parked on Wells Street. After he got in the car, he heard a voice say, "Put your hands up, get out of the car." When he looked up, he saw a man he later identified as Loring Britt standing there with a gun. Both Nicholas and Franco, who was the manager of the Rivers Edge Restaurant, had known Britt, who worked in the same building, for about 3 1/2 years, and they had seen him hundreds of times.
Nicholas got out of the car with his hands up and he, Franco and Scuris were told to get up against the loading dock and face the wall. When he first came around the car, Nicholas saw a man he later identified as Caples up on the dock behind some garbage cans with a revolver. He had never seen Caples before but observed him that night for about a minute or a minute and a half. After he stood against the wall, he got hit on the head twice with a 5-minute interval between. After he was hit the second time, he fell, and his two friends were also hit; and they fell. Everything was then taken out of their pockets. After his pockets were emptied, he was hit over the head for a third time. When he got up he saw the two men running north out of the passageway onto Kinzie where their car was parked. He immediately ran up the stairs to Wells Street where DeFiore and the Kutises were waiting. He got in DeFiore's car and about three minutes later he saw the men in a 1967 black Dodge pulling out of the parking lot on Wells and Kinzie. DeFiore followed the black Dodge traveling east until they came to Fairbanks and Ohio. Nicholas saw a police car and got into it and continued following the black Dodge. He lost sight of it for a few seconds as it made a right turn onto the Outer Drive. After the black Dodge turned onto the Outer Drive, Nicholas saw it pull into an emergency parking area. When Nicholas saw the car, the doors were open, and he saw the defendants at the railing of the bridge in the position of throwing something toward the water. The officer he was with, Richard Crotty, pulled his gun and held the defendants until other police officers arrived. Nicholas was taken to a hospital where he received 12 stitches for the three gashes in the back of his head. He testified that the lights in the loading dock have 150-watt lightbulbs in them and burn all night long. The fluorescent lighting in the city parking lot is kept on 24 hours a day.
At the time Franco went to the car with Nicholas, he had a plain sealed envelope with the receipts of the day, which he had put in the pocket of his jacket. He could not recall the amount of those receipts. When a voice said, "Don't get in the car," he turned around and was facing a man he identified as Britt. There was a swinging door that was used to close the elevator. A voice from behind the door told him to face the dock, and Franco identified the man by the door as Charles Caples. After he faced the wall with his hands up, he was hit on the head with an object which he identified as a jack handle or tire iron. He was hit on the head again and told to lie down. He did not see the object with which he was hit directly, but he could see the shadow of a tire iron on the wall.
While he was on the ground, Caples came down and searched his pockets. Franco watched him put his hands in Franco's pocket and take out $475 and some papers that were in his wallet. Both men searched them twice, and about every 2 minutes they would walk down the alley to see if anyone was coming. He saw the two men going up a ramp leading upstairs.
Franco testified that as he looked north toward the parking lot there were no lights on. There were some tall buildings there, but it was not too dark. There were lights in the parking lot. There was no spotlight in the area where they were struck, but there were two lightbulbs on the top of the platform. The lightbulbs were about 11 feet apart and there was a rope on the end of the light. One could reach the rope and pull out the lights from the platform. When those lights were out the area was not dark. The fluorescent lights from the parking lot were still on.
Franco received 12 to 15 stitches in his head. He did not tell the police that the man that robbed him was Loring Britt because he planned to get Britt himself. He saw the face of each of the two men for about a minute.
John Scuris, who apparently had some language difficulties, identified Britt as the man he saw in the parking lot and Caples as the next person that he saw. He saw Caples on the left where the garbage cans were with a gun in his hand. After he and his friends walked to the wall the two men started hitting them. The men did not say anything to him, but he heard someone say, "Son of a bitch, he is alive," and they were pointing to Nicholas. Scuris was struck once and rendered unconscious. He testified that he saw what Nicholas was struck with, but he did not know what it was. Later he testified that when they started to hit Nicholas, he turned his head and saw a tire iron clearly. He had never seen the two men before.
Richard Crotty, a Chicago policeman, was driving a squadrol in the vicinity of Fairbanks and Ohio and saw Nicholas waving to him. After Nicholas got in the squadrol, Crotty proceeded eastbound on Ohio Street. After he made the turn onto Lake Shore Drive, he saw a dark Cadillac stop around an S-turn just before the bridge. He also saw a dark blue Dodge in the southwest corner of the U-shaped area. Crotty went past both cars, stopped and backed up and blocked off the exit to the U-shaped area so that no vehicles could get out. He got out of his squadrol and drew his revolver. The Dodge was in the U-shaped area, and the doors were open on both sides. The two defendants were inside the car seated in the front seat. Crotty testified that he saw a brown bag in the middle of the front seat. In the bag were a pair of rose-colored glasses, miscellaneous keys, a comb and checks. The checks were payroll checks and the payees were Peter Economopolis on one and John Scuris on three others. The checks were later identified by Scuris. Crotty searched the car and found a tire iron in the rear of the car on the passenger side between the seats on the floor. The checks that he found were altogether in the bag; some were loose and some were rolled up. He also found a wallet in the bag. When he first saw the defendants they were in the car. From the time he stopped his car to the time he backed up, three or four seconds elapsed. As he was backing up he did not see either one of the defendants throwing anything over the bridge. He never saw them with guns at anytime.
Nicholas had told him that he knew one of the men when they were in the car going eastbound on Ohio Street. When he arrested the defendants he did not see any blood on their clothes nor did he see any blood when he searched the auto.
Officer Thomas P. Nyeran took the defendants to the lockup in his squadrol. When he searched them he did not find any weapons. Caples had $475 including three $100 bills. Britt had $274.
Edmon DeFiore testified that he and Terry and Steve Kutis went up to Wells where he had parked his car, got in and waited for the others. After waiting a while, he went around the block to see if they were coming out of the lower level. He heard some yelling, and Nicholas came running toward the car. His shirt, face and hands were full of blood. He jumped in DeFiore's car, and they went north on Wells Street. When DeFiore arrived at the first east-west street, north of Wacker Drive, a car pulled out of the lower level and he followed it. When he reached Ohio Street the car turned east. When they came to the intersection of Ohio and State, Nicholas jumped out of the car and hailed a police car. DeFiore continued following the car and never lost sight of it. He followed the car south onto Lake Shore Drive. At all times he was approximately 20 yards behind it. As he was following the car he saw only one man driving, but as the car turned south on Lake Shore Drive another man appeared in the front seat. The car pulled into the cul-de-sac on Lake Shore Drive, and the two men jumped out and walked over toward the railing. DeFiore slowed his car down, and he could see that one of the men was throwing something over the railing. He identified the defendants as the two men he saw at the railing. They were coming back to get in their car, but he could not remember if they actually got back in. Within a few seconds there were several police officers in the area. He saw one officer go into the car and pull out a brown bag. He saw a little black wallet, some identification of one of the fellows he had eaten with at the Rivers Edge Restaurant and some checks in the bag.
Caples testified that he was related by marriage to Loring Britt, whom he met in front of Britt's home at 5529 South Normal. They went to a party at 10 or 10:30 P.M. at 517 or 519 North Wells and left about 1 or 1:15 A.M. Caples had never been to that address before nor did he know anyone at the party. Britt knew some of the people at the party and had been at the location previous to August 23. After the party they went back to get in Britt's car which was in a parking lot about a half block north of the Merchandise Mart. Caples was not sure whether the party was on the second or third floor. They left the parking lot and turned east on Kinzie. Britt testified that as they turned south on the Outer Drive at Ohio he noticed a police light behind him. He pulled over to the right lane to get out of the way. He saw a Cadillac car about 30 or 40 feet behind him and assumed that the police were pursuing it. The police car was just behind the Cadillac. The Cadillac proceeded on and the police pulled in front of the exit to the cul-de-sac after Britt had pulled the car into the emergency parking area. The police officer got out of the squad car, pulled his revolver and told Caples and Britt to get out of the car. Both denied robbing or striking any of the complainants. Both defendants testified that the police took items from inside the car which included Caples' wallet, sun-glasses and comb, all of which were in a brown paper bag in the car.
It was stipulated that a laboratory analysis of the tire iron disclosed no stains identifiable as blood; nor was any hair or human tissue found on the tire iron.
After the defendant filed a pre-trial discovery motion for a list of physical evidence, the State filed the following list:
"One tire iron painted black.
One black leather wallet with miscellaneous papers.
One black hand rubber comb.
One pair of rose-colored glasses.
Scuris identified certain checks which were taken from him and were recovered by the police. The defendants moved to strike the testimony and the exhibits because the checks were not included in the list of physical evidence. That motion was denied by the trial court, and that ruling is assigned here as error.
• 1 At the outset, we note that it is fairly arguable that there was no failure to disclose the existence of the checks since the State's answer included "miscellaneous papers." The defense apparently made no further effort to have these items particularized nor to inspect them despite an offer by the State to permit inspection. But more important, the indictment alleged that the defendants took "a number of checks from the person and presence of John Scuris." In addition, before trial, the defense requested and was furnished a copy of the crime detection laboratory report which listed cancelled checks issued to John Scuris and Peter Economopolis. Under these circumstances, the purpose of the discovery rules to prevent surprise and any unfair advantage has been honored, and the defendant may not now complain.
Nicholas was asked if he had given a signed statement to the police and he said that he had. Franco said that he had made a statement to the police and signed it. During the cross-examination of each of these witnesses, the defense attorney asked for their signed statements; the State's Attorney said that they had none and that there were none in the police file. He offered to show his entire file to the defense attorney and the court. He contended that when the witnesses said that they signed statements, they were referring to the complaints. The defendants now contend that the trial court erred in not conducing an evidentiary hearing to determine whether or not written statements had in fact been given by the witnesses to the police. (See People v. Camel, 4 Ill. App.3d 106, 280 N.E.2d 294.) But we believe that the trial judge did conduct an evidentiary hearing and was justified in concluding that no written statements had been given by the witnesses to the police.
During the colloquy between the attorneys and the court in the course of Franco's cross-examination, it was disclosed that the detective in charge of the investigation was William Casey. The following occurred:
"State's Attorney: Judge, if you want to inspect our file, Judge, you are perfectly welcome. Here is our entire file. This is all the State's Attorney's Office has been given on this case. I will get Detective Casey in here. You can look through his own file. He will deny there was any verbatim statements [sic] taken from any of these witnesses.
The Court: I want to get Casey in here.
State's Attorney: We will tender to the Court the entire file.
The Court: This doesn't answer the question. I want to know from Casey.
State's Attorney: We will call him in.
State's Attorney: We will sit here until he comes in.
The Court: I want to know from Casey whether or not he took a verbatim statement from this man, typed it at a desk and handed it to him to sign. If the man says, all I did was ...