APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1974.
Defendant, Richard Kurzydlo, together with Jerome Cehoda and Frank Wilk, was indicted for robbery. Cehoda and Wilk pleaded guilty and defendant was found guilty by a jury. Defendant was sentenced to the State penitentiary for a term of 6 to 18 years.
On appeal, defendant contends that he was denied a fair jury trial in that (I) the prosecutor in closing argument (a) emphasized defendant's failure to call alibi witnesses when no alibi defense had been presented, and (b) misstated defendant's testimony concerning his actions at the time of the offense; and (II) that the court erred in giving an instruction as to an admission. No challenge is made to the sufficiency of the evidence.
The indictment charged that defendant, Cehoda and Wilk, on October 13, 1971, by the use of force and threat of force took money and cartons of cigarettes from one Douglas Thomas while he was employed as an attendant at a Clark gas station located at 7151 South Western Avenue in Chicago. Cehoda and Wilk appeared as witnesses for the prosecution. The pertinent facts follow.
Jerome Cehoda testified that he, defendant, defendant's sister, Wilk, and Nancy Skelton went to the Clark gas station at about 10:30 P.M., on October 13, 1971. There they met defendant's girl friend, Valerie Scott, and a man known only as Manuel. Following a quarrel with Valerie, defendant left to walk her home about 10 or 15 minutes after they had arrived, and returned alone some 5 minutes later. Prior to the robbery, defendant gave money to his sister and Nancy to take a taxi, and they left for home. While the attendant was outside, defendant asked Cehoda, Wilk and Manuel to help rob the attendant, and they agreed. Cehoda testified that the robbery occurred an hour and a half or 2 hours after they had arrived. When the attendant came back into the station after servicing a car, they had their plan set. Manuel approached the attendant with $5 and asked to purchase a carton of cigarettes which were kept in a locked room. As soon as the attendant opened the door, defendant, Cehoda and Manuel pushed him into the room. Manuel threatened him with a rake to his face while Cehoda went through his "top pockets" and defendant through his "bottom pockets." Manuel grabbed some cigarettes. They locked the attendant in the room and fled to a nearby railroad where they divided the money and cigarettes.
Douglas Thomas, the attendant, testified that he was robbed at about 12:20 A.M., by the four people who had been at the station for an hour and a half or 2 hours. His testimony was substantially the same as that of Cehoda. Thomas stated that he had seen defendant previously but did not know his name. He identified him as the offender who went through his pants pockets. In addition to the cigarettes, about $150 was taken from his person. He identified defendant from a group of 30 to 35 photographs at a police station, and also at a lineup.
Defendant testified that he arrived at the gas station at about 10 P.M., but left soon after to walk his girl friend home. Upon his return 5 or 10 minutes later, he observed Cehoda, Wilk and Manuel forcing the attendant into the back room of the station. Defendant testified that he turned and left the station because he did not want any part of it. He did not call the police but took a bus to his home. He stated that he arrived home about 11 P.M., and remained there the rest of the night with his mother, father and sister. He denied any participation in the robbery in any manner.
Frank Wilk testified for the State on rebuttal. He testified that after defendant returned to the gas station, defendant proposed to him that they rob the attendant. He first refused, but later defendant told him all he had to do was to stand watch at the door, to which he agreed. He stated the robbery occurred at about 12:15 A.M., and that he stood at the front door while defendant, Cehoda and Manuel forced the attendant into the back room. He saw defendant give Manuel $5 and heard him tell Cehoda and Manuel that the only way to get into the storeroom was to ask for a carton of cigarettes. After the three came out and locked the attendant in the storeroom, they ran to the tracks and divided the money. He went home about 1:30 or 2 A.M.
During cross-examination by defendant's counsel as to why he pleaded guilty, Wilk testified:
"No. Like when he got picked up, like when he got brought down to the [police] station Richie was there and like he said you don't got nothing to worry about. They ain't got nothing. They ain't got nothing. So say you don't know nothing about it and we will beat the case in court."
Based on the quoted statement by Wilk, People's Instruction No. 8, IPI Criminal No. 3.06, was given, which read:
"You have before you evidence that the defendant made an admission of a fact or facts relating to the crime charged in the indictment. It is for you to determine whether the defendant made the admission, and if so, what weight should be given to the admission. In determining the weight to be given to an ...