APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendants Raymond Scott and Frank Watson were found guilty on six counts two of armed robbery, two of attempted murder, and two of aggravated battery. Sentences were imposed on each count, to run concurrently. Defendants filed separate appeals. Three contentions are urged on appeal by each defendant which are similar and consolidated for consideration:
(1) The photographic identifications were so highly suggestive and conducive to irreparable mistaken identification as to deny due process of law.
(2) There was no independent basis for the in-court identification.
(3) The evidence was insufficient to establish guilt beyond a reasonable doubt.
Defendant Watson raises four additional contentions:
(4) The photographic identification of Watson was improper in utilizing a procedure less reliable than available corporeal procedure in which Watson would be entitled to representation by counsel.
(5) The trial court erred in failing to limit an instruction as to circumstantial evidence to defendant Scott.
(6) The closing arguments of the prosecutor were improper and solely to arouse sympathy of the jury.
(7) The conviction and sentencing for six separate offenses which arose out of the same transaction are improper.
In his brief to this court, defendant Scott has listed nine additional errors for reversal but has set forth argument only as to the first three contentions above enumerated. Supreme Court Rules 612(j) and 341(e) (7) apply and provide that points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing. (Ill. Rev. Stat. 1973, ch. 110A, pars. 612(j) and 341(e)(7).) Accordingly, except as to the seventh contention above set forth, which we determine as plain error affecting substantial rights under Supreme Court Rule 615(a), the additional errors listed by defendant Scott without argument are deemed waived and will not be considered by this court. The pertinent facts follow.
At approximately 6:30 P.M., on April 6, 1970, four young male Negroes entered the E & L Tap, located at 48th Court and 29th Avenue in Cicero, Illinois. Soon after entering, one of them jumped onto the bar, brandished a shotgun, and announced a "stick-up" to the 10 or 15 patrons. The other three offenders, all armed with handguns, then positioned themselves at the front, middle and rear of the tavern. The one with the shotgun jumped down behind the bar and tried to open the electric cash register. The bartender, Ronald Pluth, informed him that it would not open because it was not plugged into the outlet. Pluth then walked over and plugged it in, and after watching the offender remove the contents, turned to walk back to his original position. At this point, a shot was fired in the rear of the tavern, and the offender with the shotgun immediately fired at Pluth, striking him in the right buttock. More shots were fired as the patrons scattered and fell to the floor for protection. The four offenders fired shots at the patrons on the floor as they ran out of the tavern. They entered a 1963 Ford sedan and drove down the street a distance of 50 feet. They then abandoned the vehicle, ran down the alley, and drove away in another automobile. In addition to Pluth's injury, gunshot wounds were received by Lorraine Kaczmarek, the owner of the tavern, and two patrons, Daniel Lapinski and Dale Mertes. Defendants Scott and Watson were subsequently indicted and brought to trial.
Dianne Kaczmarek testified for the prosecution. She was standing at the rear of the tavern talking with her mother, Lorraine Kaczmarek, when the four men entered. The interior was lighted and it was still light outside. The four offenders were in the tavern an estimated 10 minutes. Defendant Scott was identified by her in court as the one who positioned himself at the rear of the tavern next to her and her mother. It was Scott who had shot her mother. She identified Watson as the one who stationed himself in the middle of the tavern about 6 1/2 feet from where she was standing. During the holdup he shoved patron Frank Wausak against a door and frisked him. On April 7, 1970, the witness identified defendant Watson's photograph from a group of 20 pictures of male Negroes of varying ages shown to her by the police at her mother's home. Some were of old men. She never gave the police a description of any of the offenders but merely picked out defendant Watson's photograph. She viewed them in her mother's bedroom after they had been shown to her mother.
Lorraine Kaczmarek, owner of the tavern, testified. She was standing at the rear of the tavern talking to her daughter when the four men entered. The interior was lighted and she was able to see the people without any difficulty. She identified defendant Scott in court as the one who positioned himself about 5 feet from where she and her daughter were standing. She identified Watson in court as the one who stood directly behind Scott and nearer to the center of the bar, some 10 to 15 feet away from her. The four offenders were inside the tavern for an estimated 10 minutes before any shots were fired. During this time Scott was standing face to face with her, and she concentrated on his face and Watson's. After the one with the shotgun began scooping the money out of the register she became very nervous and her knees buckled causing her to fall back onto some beer cases. Defendant Scott said to her, "Where are you going, bitch?" He fired a shot over her shoulder, then fired again, striking her in the left hip. More shots were fired and the four offenders ran from the tavern. She never gave the police a description of the four men. After her release from the hospital, two police officers came to her home and showed her a group of loose photographs. She picked one of defendant Scott. Her daughter Dianne was not in the bedroom when she viewed the photographs but came in afterwards, and Lorraine was present when Dianne viewed the same photographs.
Albert Klucina, a Cicero Police Department patrolman, testified. He was the investigating officer on April 6, 1970, and arrived at the tavern about 6:30 P.M. The shotgun used in the robbery was recovered inside, but had no fingerprints on it. The 1963 Ford sedan initially used to flee the scene was recovered about 50 feet from the tavern. In the glove compartment he found a bill of sale and a repair bill in the name of defendant Scott. It was later established that the vehicle was registered in the name of Scott. The automobile was wired to operate with or without an ignition key. A check disclosed that no theft report of the vehicle had been made. The officer did not received a description of the offenders from any of the wounded patrons, but descriptions given by the uninjured patrons were taken by other officers and later relayed to him. He ordered photographs from the Chicago Police Department within 2 or 3 hours after the robbery and specifically asked for a photograph of Raymond Scott. After Lorraine Kaczmarek was released from the hospital Klucina and another officer went to her home and showed her the photographs. Although Dianne Kaczmarek was in the house at the time, she was not in the same room. She later went into the room and viewed the same photographs while her mother was present.
Ronald Pluth, the bartender, testified. The lighting conditions in the tavern were adequate and he could see without difficulty. He identified defendants Scott and Watson in court as two of the four who had robbed the tavern. The closest he came to defendant Watson during the robbery was 5 or 6 feet. After he plugged in the cash register and watched the man with the shotgun remove the contents, he turned and walked away. A shot was heard and he was then shot in the buttocks by the offender with the shotgun. A colostomy was required, but this condition was corrected by further surgery. He never gave the police a description of the offenders, but 3 or 4 weeks after the robbery, following his release from the hospital, he viewed a series of photographs brought to his home by the police. He picked out photographs of defendants Scott and Watson. The police did not inform him that the Kaczmareks had previously identified their photographs. He made his in-court identification of the two defendants on the basis of their facial features.
The record is silent as to whether defendant Watson was in custody at the time Pluth identified his photograph, but does establish that ...