APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendant was charged with the offense of armed robbery. (Ill. Rev. Stat. 1971, ch. 38, par. 18-2.) Following a jury trial he was found guilty and sentenced to a term of from 5 to 10 years. On appeal he contends that (1) he was not proven guilty beyond a reasonable doubt; (2) he was prejudiced by the testimony of a police investigator concerning his prior contacts with the police; (3) he was prejudiced by the introduction into evidence of certain "mug shots" and of weapons unrelated to the offense with which he was charged; (4) he was denied a fair trial due to the failure of the State to fully comply with a discovery order; (5) he was prejudiced due to the fact that the court gave an "Allen" charge to the jury; and (6) his sentence is excessive.
At trial Henry Liese testified for the State that at 2 P.M., on September 6, 1970, he arrived at an apartment building which he owned at 3548 West Congress Parkway in Chicago. He parked his car in the alley beside the building and proceeded to the first-floor rear apartment of Mrs. Helen Anderson to collect rent. Mrs. Anderson was not home. A 13-year-old girl answered the door and then left to get the rent money. She returned approximately 15 minutes later and gave him $90 in cash for rent and utilities. While writing a receipt he heard the hood of his car go down. He returned to his car and put his key in the ignition, but it would not start. "In less than a minute" someone was alongside him. This individual opened the car door and said, "I've got a gun, give me your money, all of it." The man pointed a snub-nose gun toward his left side. Liese gave the man $154. He pointed toward the porch and told the robber, "This is all of it, ask her." He did not see anyone on the porch but he "knew they were there." He observed the man's face and stature for a "good minute" under excellent lighting conditions. The sun was shining. The man was a "good six feet" tall and wore a khaki T-shirt and blue trousers. After being robbed, he called the police. A couple of squad cars arrived. He accompanied the police officers and was shown a short man but stated that this was not the man who had robbed him. Several days later Officer Munyon, a police investigator, came to his home and showed him five or six photos. He picked out one of defendant. On September 15, 1970, he viewed a lineup of six or seven men, at which time he again identified defendant.
On cross-examination Liese testified that he had never before seen Alfreda Leach, the girl who had given him the rent money. He did not tell police officers that the robber had called out to her. He described the robber to police as being in his twenties, about 6 feet 5 inches, with natural hair and wearing blue trousers and a khaki shirt. The robber carried a snub-nose steel .32-caliber revolver. He did not tell police whether or not the robber wore a mustache.
Officer Thomas Munyon of the Chicago Police Department testified for the State that on September 8, 1970, he was investigating the armed robbery of Liese. He went to the apartment house at 3548 West Congress and interviewed Helen Anderson. She told him that she had not been at home on September 6 and had no knowledge of the robbery. He then searched for other witnesses to the crime. Two children, about 6 or 7 years of age, directed him to go to a building about half a block east of the scene of the crime. They were Mrs. Anderson's children; however, he could not remember their first names. He proceeded to the building to which the children had pointed and spoke with Alfreda Leach. She told him that she had given Liese the rent money but did not see the robbery. She told him that there were no male members of her family living in the building. He went to the front of the building to obtain the address. It was 3527 West Van Buren. He found the name "Leach" on the mailbox and also that of Harold Longstreet. He then went to police files and "got the name of a Harold Longstreet, male Negro, date of birth, 1950, six feet three, a hundred sixty-five pounds, dark complexion." He obtained a photo of defendant, included it with six other photos of "previous offenders of robberies" and showed them to Liese. Liese identified defendant. Munyon then secured an arrest warrant for defendant. He proceeded to the Leach apartment accompanied by two other officers. Upon being admitted to the apartment, they found defendant asleep in bed. There was a metal box next to the head of the bed. Munyon opened the box and found three pistols in it. Defendant, when he awoke, put on a khaki shirt and blue pants and accompanied the officers to the police station. At the station Liese was shown the weapons that had been seized and identified a snub-nose .38-caliber revolver as the gun that had been used in the robbery. Liese then viewed a lineup and identified defendant. On cross-examination Munyon testified that defendant continually denied any participation in the robbery.
Chicago Police Officer Roger Sielinski testified for the State that on September 6, 1970, he received a robbery call to go to 3548 West Congress Parkway. When he arrived, he was given the following description of the robber: "[A] male, Negro, approximately twenty two years old, six feet tall, 165 pounds, black hair, brown eyes, medium complexion, khaki shirt and blue pants." Other police officers brought an individual to the presence of Liese. He stated that the individual was not the offender, and the man was released. On cross-examination Sielinski testified that Liese told him that a blue-steel revolver was used. Liese told him that the robber called to a woman on the porch named Alfreda and asked her "if this was all the money that he had." His report did not indicate whether or not Liese told him that the robber had a mustache.
Defendant testified on his own behalf that on September 6, 1970, he lived at 3527 West Van Buren. That morning he awoke at 9:30. His mother, Callie Lee Leach, his sisters, Alfreda Leach and Peggy Joe Leach, his brother, Frank Sam Leach, his cousin, James Patt, and Patt's fiancee, Helen Anderson, were present. He put on blue levis and a red T-shirt and before 11 o'clock he went to the garage of Walter Patrick, located in the 3300 block of Flournoy. He went alone. Patrick showed him how to work on an automobile's transmission, and he then remained there until approximately 7 P.M. When he returned home, the same people were still at his apartment. The box in which the pistols were found did not belong to him. The box had a lock on it. On September 6 he wore a mustache. He did not hold up Liese.
Walter Patrick testified for the defense that on September 6 defendant came to his place at approximately noon in order to repair the drive shaft or transmission of a car that was in his garage. Defendant remained there until at least 7 P.M.
Melvin Abercromby testified for the defense that the box in which the guns were found had been pawned to him. He placed the box in the apartment in which defendant was residing. The box had been locked, and he did not have a key. On September 6 the police showed him to a man who was sitting in a squad car, but the man told the police that Abercromby was not the one he was looking for.
Alfreda Leach testified for the defense that she lives at 3539 West Van Buren. On September 6, 1970, she paid the rent to Liese. She did not see anyone rob him nor did she hear anyone call, "Alfreda, does he have any more money?" On cross-examination she testified that defendant did not leave home to go to Mr. Patrick's garage until after she had returned from paying the rent.
Defendant contends that the State failed to prove him guilty beyond a reasonable doubt. He maintains that Henry Liese contradicted himself on three "significant" matters in that he (1) failed to notice whether or not the robber wore a mustache, (2) did not testify at trial that the robber called out to Alfreda Leach despite earlier statements to the police to that effect, and (3) was mistaken in his description of defendant's complexion.
• 1, 2 The rule is well established that "[i]t is within the province of the jury to judge the credibility of witnesses, weigh the testimony and determine matters of fact. The determination of the jury will not be disturbed unless the evidence is so unsatisfactory as to justify a reasonable doubt of guilt." (People v. Benedik, 56 Ill.2d 306, 310, 307 N.E.2d 382; People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595; People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840.) "The testimony of a single witness, if it is positive and the witness credible, is sufficient to convict even though it is contradicted by the accused." (People v. Hampton, 44 Ill.2d 41, 45, 253 N.E.2d 385.) In the instant case Liese was able to observe the individual who was robbing him for a "good minute" under excellent lighting conditions. He described the robber as being a Negro about 22 years of age, over 6 feet in height, 165 pounds in weight, and carrying a .32-caliber blue steel snub-nose revolver. Police records indicate that defendant is a black male who stands 6 feet 3 inches and weights 165 pounds. On September 6, 1970, he was 20 years old. At the time of his arrest a snub-nose .38-caliber revolver was seized. Liese positively identified defendant on three occasions, first when he was shown a group of photographs by a police investigator, later at a lineup, and once again in court. He identified the .38-caliber revolver as the weapon used in the robbery. Key portions of his testimony were corroborated by that of Officers Munyon and Sielinski. Contrary to defendant's contention that Liese was an unreliable witness, we find that his testimony failed in only minor respects. We therefore hold that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.
Defendant next contends that prejudicial error resulted from the testimony of Officer Munyon concerning the investigatory procedures which led to his arrest. Specifically, defendant points to Munyon's statements concerning his listing in the police "alpha" file and his photograph being included in a group of those of "prior offenders." He ...