APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendants were jointly charged with two counts of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2) and were tried together. Defendants Hart and Reed chose a jury trial; defendants Normant, Ford and Williams chose a bench trial. Following their convictions they were sentenced as follows: Normant, 7 to 14 years; Reed, 5 to 10 years; Ford, 8 to 16 years; Hart, 7 to 14 years; and Williams, 5 years to 5 years and 1 day. All defendants join in this appeal.
Defendants raise three contentions for our consideration: (1) they were denied effective assistance of counsel due to their joint representation by a single attorney; (2) defendants Reed and Hart were denied a fair trial due to the trial court's refusal to excuse the jury while two of the bench-trial defendants testified, and this error was compounded when the prosecution relied on the testimony of the bench-trial defendants during closing argument; and (3) the trial court applied an erroneous standard of law in denying their motion to suppress evidence. Defendants do not challenge the sufficiency of the trial evidence.
Defendants were arrested and charged with the armed robbery of the V.I.P. Discount Store located at 1051 West 63rd Street in Chicago, and a single public defender was appointed to represent them. At arraignment Ford requested an attorney other than the public defender. The court refused but suggested that Ford make his objection to the trial judge. Subsequently, in a written pro se motion, Normant requested the appointment of a bar association attorney for his defense. This motion was denied. Defendants made no further requests for separate counsel.
Prior to trial the court held a hearing on the motion of defendants Normant, Ford, Hart and Williams to suppress evidence seized at the time of their arrest. Defendants all testified that they were arrested between 5 and 6 P.M. on January 21, 1972, at the V.I.P. Discount Store, and that they were not shown warrants for their arrest and search. Normant testified that, at the time of his arrest, he had entered the store in order to purchase a shirt; Ford testified that he was shopping for a pair of pants; and Hart and Williams testified that they were standing innocently in the vicinity of the store.
The State then called Chicago Police Officer Joseph Caddigan who testified that at approximately 5:45 P.M. on the date in question he was on patrol with his partner, Officer Ronald Mainellis, when they received notification of a "silent holdup alarm" on the "Citywide Police Radio." They were less than a block from the store when they received the call, and it took them not more than a minute to arrive at the scene. He found Reed standing outside the doorway and said to him, "Police officers. We're going back into the store." Standing just inside the doorway were Williams and Hart; behind them, "just within the store proper," were Normant and Ford. Within a short period of time a Mrs. Banks approached him from the rear of the store and told him that defendants had just held her up. She also said that Normant and Ford had thrown their weapons behind the front counter. She identified all five defendants as being participants in the robbery. He then searched defendants. On cross-examination Caddigan testified that when he first arrived on the scene he thought that defendants could easily have been the victims of the robbery. Mrs. Banks did not tell him that Ford and Normant had been carrying guns until after he had searched them; however, he "didn't search anybody until she [Mrs. Banks] said she was robbed."
Officer Mainellis and Mary Aaron, a saleslady at the store, were called by the State and substantiated much of Caddigan's testimony.
The court denied defendants' motion, finding that Officer Caddigan "had probable cause to make the detention and the subsequent arrest and search of the defendants."
At trial Ella Mae Banks testified for the State that she is the owner of the V.I.P. Discount Store. On January 21, 1972, she was present at approximately 5:45 P.M. with two employees, Mary Aaron and Felix Foster, when "four fellows walked into the store." Another individual stayed at the door. She identified defendants as these five men. Normant asked her if he could try on a coat. He turned his back to her as he put it on. When he turned around, he had a gun drawn and said, "This is a stickup." Ford, who was also armed with a gun, moved to the back of the store. Normant ordered Felix Foster to empty his pockets and lie on the floor. Foster took out his black billfold, and Normant picked it up and put it in his pocket. Normant then ordered her to open her two cash registers. Ford and Hart took the money out of them. Normant, Ford and Hart also broke into the jewelry display case, and Reed and Hart began removing clothes from the shelves. Suddenly Williams, who was posted just outside the store, knocked on the door and said, "The police." The other four rushed to the front of the store. Just before the police entered, Ford and Normant threw their guns over the counter. Upon entering, one of the police officers asked, "What's going on here?" She answered, "It's a stickup."
Mary Aaron and Felix Foster corroborated the testimony of Mrs. Banks.
The testimony of Officers Caddigan and Mainellis for the State was substantially similar to that which they gave at the hearing on defendants' motion to suppress. They added that when they searched defendants they found two watches in Williams' pockets, United States currency in Ford's pocket and currency and a billfold, identified by Felix Foster as the one taken from him, in Normant's pocket.
Chicago Police Officer Rudy Rodriquez testified for the State that he found the two holdup weapons behind the counter where Mrs. Banks indicated Ford and Normant had thrown them.
At the conclusion of the State's case defense counsel requested that the jury be excused while he presented evidence on behalf of the bench-trial defendants. The trial court denied this request but did give a cautionary instruction to the jury before the testimony of each bench-trial defendant.
Reed, a jury-trial defendant, testified that he and Hart were walking past the store when they were told by police officers to come back. They entered the ...