APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
A. MEIER, III, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
In a three-count indictment, Stephan Sedlacko and the defendant, Thomas Stewart, were charged with three armed robberies. Defendant alone went to trial before a jury that acquitted him of the offense charged in one count and found him guilty of those charged in two. The court sentenced him to serve concurrent terms of 2 to 8 years. He appeals to this court contending that (1) incompetency of his counsel denied him a fair trial; (2) identification of him by two victims of the crimes was vague, doubtful, and as a consequence of this and other aspects of the case, the State failed to prove him guilty beyond a reasonable doubt; (3) rulings of the trial judge that admitted evidence suggesting guilt by association, and which allowed the State to introduce rebuttal testimony, denied him a fair trial; (4) improper comments of the prosecuting attorneys in their closing arguments to the jury were prejudicial. The following are the facts that underlie these contentions.
Our Lady of the Mount Catholic Church is located at 2414 61st Avenue in the town of Cicero, Illinois. On June 25, 1970, four priests, Fathers James Flynn, George Francis Cerny, Frank Podgorny and James Skonicki, lived in the church rectory. That day, Fathers Flynn and Skonicki played golf and afterwards went to dinner. At about 10:40 P.M., Father Cerny heard a ring of the rectory doorbell. When he answered, there were two men standing outside. One was dressed like a priest; the other Father Cerny could not see but noticed that he was wearing a jacket. The one in priest's attire asked for Father Flynn, but Father Cerny said he was not in. The two men left, and, before going to bed, Father Cerny wrote a note to Father Flynn telling him that two men had come to the rectory asking for him.
At about 11:30 P.M., Fathers Flynn and Skonicki returned. Father Skonicki went to bed in his room on the third floor; Father Flynn read the message from Father Cerny. About 10 minutes later, the telephone rang. When Father Flynn answered, a male voice said it was Father Paul from Milwaukee, Wisconsin. The man told Father Flynn that he was advised to contact him because of his rapport with teenagers among whom the caller wanted to work in the Chicago area. However, the man said he had to return to Milwaukee early the next morning and therefore asked if he could come to the rectory that night. Father Flynn agreed; and approximately a half hour later, between 12:15 and 12:30 A.M., the man arrived. He was dressed like a priest; he said he was Father Paul from Milwaukee. Father Flynn admitted him to the rectory, and for a short period, they drank some beer and talked about teenagers, social conditions, neighborhod racial changes and organizational activities within the church.
Then "Father Paul" said he had some literature in his car he thought would interest Father Flynn. He went out and promptly returned with an attache case which he put on a desk, opened and from it pulled a gun. He then ordered Father Flynn to sit down in a chair. Father Flynn did so, and a few moments later, "Father Paul" left and returned with another man who, undisguised and unmasked, stood in a doorway and looked into the room where Father Flynn was sitting. The room was illumined by light in the ceiling. Father Flynn had the opportunity to look at this second man for about 5 seconds and saw he was wearing a tan or beige colored jacket.
A short time later, Father Flynn was ordered into another room. As he walked down a hallway, he saw the second man putting a nylon stocking over his head. On this occasion, the priest could observe that man for about 5 seconds and saw that he had a gun in his possession. Within a few moments, a third man entered the rectory and armed himself with the shotgun he took from a case. The intruders then asked Father Flynn if there was anyone else in the rectory. When he told them of the other three priests, two of them went to upper floors and awoke Fathers Skonicki, Podgorny and Cerny. They were brought downstairs to the office where Father Flynn was sitting, and the four priests were ordered to sit in chairs arranged so they each faced a wall. Then keys to their rooms and other parts of the rectory were taken from them. The intruders took watches from Fathers Flynn, Podgory and Cerny and took cash either from their persons or from their respective rooms. Later, the priests were ordered to get into two cars: Father Flynn in his with Father Podgorny; Father Skonicki in his with Father Cerny. They were ordered to leave Chicago and drive to Milwaukee, Wisconsin. However, after driving a short distance, the priests, at their first opportunity, stopped a Cicero police department squad car and told police officers about what had occurred in the rectory. Then, accompanied by the officers, the four returned to the church where they found Father Lovett, a priest from a nearby parish.
Two or three weeks later, sometime during the middle of July 1970, Father John Keenan, one of Father Flynn's classmates, brought to the rectory a copy of the May 1970 issue of a magazine, the Chicago Journalism Review. Father Keenan thought an article in the magazine, one concerning a group called "the Legion of Justice," contained information about the men who robbed the rectory during the early morning of June 26, 1970. On one page of the publication were pictures of three men. Father Flynn and Father Skonicki looked at the three pictures and identified the one of Stephan Sedlacko as the "Father Paul" and that of the defendant, Thomas Stewart, as the second man who came into the rectory and was observed twice for about 5 seconds, once at the doorway of the office and once in the hallway, armed with a gun and putting a nylon stocking over his head. Having made this identification, the priests, accompanied by two trustees from the church, went the next day to the Cicero police department and showed the pictures to investigating officers who were assigned to the case. A short time later, Father Flynn was shown a group of 20 photographs from which he picked out a picture of the defendant, Thomas Stewart. Defendant was later arrested, the three-count indictment against him and Sedlacko was returned, and on October 6, 1971, represented by private counsel employed by him, he went to trial before a jury.
Between the robberies and the trial, Father Podgorny passed away. Therefore, the three surviving priests weer the witnesses for the prosecution. Father Flynn was the first to testify. He told the jury of his experiences on the evening of June 25 and the early morning of June 26, 1970: how he saw the man dressed in priest's garb; how he saw the second man, observed him twice for intervals of 5 seconds, and later was able to identify him along with "Father Paul" by looking at pictures in a copy of the Chicago Journalism Review; and, after that, picking out a picture of defendant from among 20 shown him by Cicero policemen. Over defense objections, Father Flynn was permitted to tell the jury how he learned the name of Stephan Sedlacko, and how, on the occasion of the robberies, defendant and Sedlacko were together in the rectory and acted in concert with one another.
Father Skonicki was the second witness. *fn1 He also described to the jury his experiences of the evening and early morning hours in question. He said he was awakened in his room by two intruders, armed with guns, who brought him and Father Podgorny to an office on the first floor of the rectory where Fathers Flynn and Cerny were seated in chairs heads down and facing a wall. Corroborating Father Flynn's testimony in large part, he told the jury how, during a period that followed, the intruders threatened him and his fellow priests with death by shooting; how demands were made for the safe combination and keys; how, in connection with a demand concerning the signing of checks, Father Podgorny was hit in the face by one of the intruders. Father Skonicki said that as he was driving his car out of the garage, as he was ordered to do, he had a 5-second opportunity to look at one of the intruders. Then, the priest was asked if he saw anyone in court who was the same person. Father Skonicki looked and then told the jury that defendant "[a]ppears to be the same person."
Father Cerny was the third and last witness for the prosecution. He described his experiences, telling the jury how he answered the doorbell of the rectory on the night of June 25 and seeing the two men, one dressed in a priest's garb inquiring about his fellow priest. He told the jury how he left the message for Father Flynn and went to bed. He, like Father Skonicki, described how he was awakened by two intruders armed with guns who ordered him from his bedroom to the first-floor office where Father Flynn was sitting.
Defendant's defense was an alibi. In support of it, he called his father, an older brother and two sisters. They testified that during the evening and early morning hours of June 25-26, 1970, defendant was at home, 1411 North Linder in Chicago. Then they were cross-examined. Three of them, the father, the brother and the older sister, denied ever hearing of defendant having an acquaintance or friend named either Stephan or Stephan Sedlacko. The father was asked if he knew all of defendant's acquaintances. He said he did. Then, he insisted that he had never heard of a Stephan Sedlacko nor had he ever received a telephone call for defendant by a person of that name. Defendant rested his case with the testimony of his alibi witnesses.
Thereafter, over his objections, the court allowed the State to call a Chicago policeman who told the jury that he was a member of his police department's Subversive Section, Intelligence Division. He testified that on March 11, 1970, he was near the Palacio Theater in Chicago and there saw defendant and Stephan Sedlacko together. On that occasion, a photograph, marked as a prosecution exhibit, was taken showing defendant and Sedlacko near each other. Testimony of this rebuttal witness concluded presentation of the evidence. After this, the jury heard argument of counsel for the parties, received its instructions, deliberated and returned its verdicts on which the court entered judgment. We now turn to defendant's contention concerning competency of his counsel because in our opinion it has a bearing on the others he makes in this appeal.
Defendant calls our attention to specific instances which, he insists, show that he was not given effective representation at his trial. 1. His counsel did not object when the trial judge read the indictment to the jury. This reading, according to defendant, disclosed that Stephan Sedlacko, who was not on trial, was a co-defendant. Disclosure of this fact, defendant argues, permitted the State to prove him guilty because of his alleged association with Sedlacko. 2. Counsel failed to request that witnesses be excluded from the courtroom before the prosecuting attorney made his opening statement to the jury. 3. He did not make a pretrial motion to suppress identification evidence, a request which perhaps would have been granted by the trial court. 4. Counsel failed to request copies of police reports and transcripts of the preliminary hearing. 5. He failed to tender, for the trial court's consideration, any defense instruction. 6. Counsel failed to exploit the absence of a face-to-face confrontation between defendant and the priests after his arrest. 7. He failed to interpose timely and appropriate limiting objections to questions asked the priests when they testified for the State. 8. Counsel failed to interpose timely and appropriate objections to improper comments in the closing arguments made by the prosecuting attorneys in their summations to the jury.
• 1 The competence of defendant's counsel in the proceedings we review must be decided solely on the record of this case. (People v. Williams, 26 Ill.2d 190, 196, 186 N.E.2d 353.) And before we can conclude that this was a case of inadequate representation, defendant must show not only actual incompetence of his counsel, as reflected by the manner in which the lawyer discharged his duties as a trial attorney; he must show that he was substantially prejudiced by the conduct of his counsel, without which the outcome of his trial would probably have been different. (People v. Bliss, 44 Ill.2d 363, 255 N.E.2d 405.) It is with these principles in mind that we examine the record in order to determine whether the specific instances to which our attention has been called support defendant's claim of incompetence of counsel at his trial.
• 2 To begin with, defendant's counsel could not object when the trial judge read the indictment to the jury. (See United States v. Press (2d Cir. 1964), 336 F.2d 1003, 1016.) Reading the indictment complies with the requirement of Supreme Court Rule 234 that "[t]he judge shall initiate the voir dire examination of jurors by identifying the parties and their respective counsel and briefly outlining the nature of the case." (Ill. Rev. Stat. 1971, ch. 110A, par. 234; see 23 C.J.S. Criminal Law § 962 (1961).) A lawyer should not be criticized for failing to make an objection which would have ben unavailing. (People v. Johnson, 45 Ill.2d 501, 259 N.E.2d 796.) Further, it appears that, contrary to defendant's assertion, his counsel did not fail to request the court's exclusion of witnesses before the State's opening argument. The record shows that as trial before the jury was about to begin, an attorney for the State made ...