APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendants, Herman Watkins and Ronald Gary, were charged with attempt murder, armed robbery, and aggravated battery. After a jury trial in the circuit court of Cook County, defendants were acquitted of the charge of attempt murder and convicted of armed robbery and aggravated battery. Gary was sentenced to 40 to 100 years for armed robbery and 4 to 10 years for aggravated battery, the sentences to run concurrently. Watkins was sentenced to 20 to 40 years for armed robbery and 4 to 10 years for aggravated battery, the sentences to run concurrently. Joseph Brooks was indicted with defendants on these same charges but, as we shall examine later, the charges were nolle prossed by the State.
On appeal defendants contend that the trial court erred in denying their motion to suppress evidence; that they were denied due process of law by not being promptly taken before a magistrate; that they were deprived of a fair trial in which they could fully present evidence and cross-examine witnesses; that the trial court erred in denying their motion to suppress the identification testimony; that the court erred in permitting the jury to consider evidence which had been improperly introduced; that they were not proved guilty beyond a reasonable doubt; and that the sentences imposed were excessive.
On December 16, 1970, at approximately 2:30 A.M., an armed robbery occurred at a mail order plant of Sears, Roebuck and Company in the city of Chicago. Two Sears' employees, Tommy Brooks (not related to Joseph Brooks) and Walter Lada, were collecting cash receipts in the plant when they were approached from the rear by two men one of whom brandished a pistol. After ordering the two employees to "freeze," the gunman shot Lada in the face. As a result of the shooting, Lada was severely injured, and he was described at trial as having "no speech" and "very little by way of recognition and carrying on judgment." At the sound of the gunfire, Tommy Brooks dove to the floor. The robbers snatched the bag of cash and raced down a corridor to an emergency exit. A waiting auto, driven by a third person, drove them away. The defendants, arrested on unrelated charges on December 19, were subsequently charged with the present crimes.
We consider initially what we believe to be the determinative issue of this appeal: whether defendants were denied a fair trial in which they could fully present evidence and properly exercise their right of cross-examination. To understand the issue, it is necessary to set forth in detail a chronology of the pertinent court proceedings.
Prior to trial, defendants and Joseph Brooks sought leave to file a motion to suppress identification testimony. The prosecutors did not object, but informed the court that it was the accuseds' last day to stand trial under the Four Term Act. The trial judge thereupon ruled that the motion to suppress could be filed, that jury selection would commence, and that the motion to suppress would be heard.
At the hearing on the motion to suppress identification testimony, Tommy Brooks testified to the pretrial procedures employed by the police, including the manner of his identification of Gary at a lineup on December 19, 1970.
After the witness had been excused, a jury was called. The court made preliminary remarks to the prospective jurors, informing them of the nature of the charges, and introducing the three accuseds, their counsel, and the prosecutors. The court then commenced the voir dire examination, and a panel of four jurors was selected. Jury selection was continued for a day, and the hearing on the motion to suppress identification testimony resumed.
Jessie Sharp, a Sears' employee, testified that three women employees of Sears and he were picked up by the police and taken to a police station on December 17, 1970, to view mug shots. No identifications were made. He returned to the police station on December 21 and viewed two books of photographs. When he was again unable to make any identifications from the photographs, he was shown two photographs of a lineup conducted on December 19. Sharp identified Joseph Brooks from these latter photographs.
After the witness had been excused, Harry Picardi, another Sears' employee, took the stand. He had just begun to testify when the prosecutor interrupted to inform the court that because "certain developments" had arisen, the State had "no choice" but to nolle prosse the case against Joseph Brooks. Counsel for defendants objected, stating that the jury process selection had begun and that this action would have to be explained to the jury. After allowing the State's motion, the trial court stated for the record that it had offered defendants a mistrial, which they had refused.
The hearing on the motion to suppress identification testimony then resumed. Picardi testified that on December 19, after viewing a lineup, he identified Joseph Brooks and the two defendants as the robbers. William Binder, also a Sears' employee, testified that he viewed 10 mug shots before attending the lineup. At the lineup, he identified Joseph Brooks and the two defendants. At the hearing Binder was asked if he saw Brooks in the courtroom. Binder then identified Watkins as Brooks. When asked to identify Watkins, Binder pointed out Gary. The witness then erroneously stated that Joseph Brooks was not present in the courtroom.
After the trial court had denied defendants' motion to suppress the identification testimony, defendants' counsel inquired as to what explanation would be furnished the jury regarding Joseph Brooks' absence. Counsel expressed the fear that the jury would infer that Brooks had pleaded guilty. The judge replied that he would tell the jury that it could no longer consider any case against Joseph Brooks. Defense counsel, while declining to move for a mistrial, responded that the State had placed defendants in the difficult position of asking for a mistrial or breaking their term by the nolle prosse of the charges against Joseph Brooks.
When court reconvened, the State requested that defense counsel be precluded from mentioning to the jury the actions taken by the State in relation to Brooks. The trial judge stated that he considered Brooks to be an "integral part" of the case. Defense counsel stated that Brooks had a very strong alibi which would counter the identifications of him, and that defendants should not be restricted in advance from offering evidence as to what had occurred. Thereupon, the trial judge, over the objections of both sides, declared a mistrial and dismissed the panel of jurors already selected.
Thereafter, a new jury was selected. The trial court denied defendants' motion to dismiss the indictment on the ground of double jeopardy. At trial the court sustained the State's objections to defense counsel's attempts to adduce testimony from State witnesses that they had identified Joseph Brooks as one of the three robbers.
For the purpose of considering the issue in question, the pertinent trial testimony may be summarized briefly. Tommy Brooks testified that Walter Lada and he had been robbed in the Sears' plant by two men. He identified Gary as the man who had shot Lada. Binder and Picardi testified that on the day of the robbery they had noticed a man, whom they identified as Watkins, standing outside the Sears' plant near a dirty, rusty auto with its car hood up. They subsequently observed two men run out of the plant and enter the vehicle. Watkins slammed down the hood and drove ...