APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant, Ralph Bell, was indicted on one count of attempt armed robbery. He was found guilty by a jury in the Kane County Circuit Court and, after the denial of post trial motions was sentenced to 3 1/3 to 10 years in the penitentiary. He appeals on the grounds that he was denied a fair trial in that the prosecutor mentioned in his opening statement evidence which was prejudicial to defendant and not brought out at trial, that the court erred in permitting him to be impeached by a prior inconsistent statement absent a proper foundation for the impeaching testimony, that he was not proven guilty beyond a reasonable doubt, and that the sentence imposed violated the Unified Code of Corrections.
Around midnight on October 29, 1971, Jonathan Hanchett, a security guard at Dominick's Food Store in Elgin, was making his rounds outside the store when a person wearing a ski mask and carrying a gun surprised him. Hanchett could not determine the sex of this person. The assailant frisked Hanchett, but made no attempt to take anything from him.
Hanchett could tell the assailant was black because a portion of his face was visible through the ski mask. The assailant wore dark clothing, including a dark indistinguishable jacket, probably waist length. Hanchett testified that he did not see such a coat in the courtroom. Defendant's brother was wearing a long, dark coat in the courtroom, later identified as the coat defendant was wearing at the time of his arrest.
Hanchett got a good look at the gun while the assailant was frisking him; the gun looked tattered and had chipped paint. He testified that a gun and mask similar to those of the assailant were shown to him by a detective about 40 minutes after the incident. Hanchett identified at trial a gun and ski mask shown him by the prosecutor as those used by the assailant.
While the assailant was frisking Hanchett, Duane Richert, a grocery store employee, came around the corner and startled the assailant. The assailant followed the boy around the corner where the boy disappeared.
Richert testified that just before midnight on October 29, 1971, he walked out of the grocery store. He heard a noise and upon investigation saw Hanchett against the wall and a man holding a gun against him. The assailant yelled at Richert to stop, but Richert ran into the building, followed by the assailant. The assailant pointed the gun at Richert and then ran out the door. Richert could not identify the assailant who wore a mask.
William Pasholk was sitting in his parked car in the grocery store parking lot about midnight on October 29, 1971. His testimony coincided with that of Hanchett and Richert. When the assailant pointed the gun at Richert, Pasholk ducked his head. He heard three clicks. His car engine was running at the time and possibly only the one window on the driver's side was down. Pasholk could not tell the sex of the assailant, but the assailant was wearing a ski mask and dark clothing. There was nothing distinguishing about the assailant's coat.
Allen Piske, an Elgin detective, went to Dominick's Food Store in his car on October 29, 1971, after getting a call concerning an armed robbery there. He met other police cars there and he searched the area to the south of the store as the assailant had fled south on foot.
Piske and an Officer Shroeder went in separate cars to 464 Hickory St., because a blue station wagon was seen pulling into a driveway. They saw the car there and upon Piske shining his flashlight into the car, defendant, whom Piske knew, raised his head. Defendant got out of the car and said it belonged to a "Dale" who drove him there but whose last name he did not know. A sticker on the car indicated to Piske that defendant's mother owned the car.
Piske then flashed his light into the back seat of the car and saw a suitcase with knit material protruding. Upon opening the suitcase Piske found among other things, a gun and ski mask which he identified at trial. Defendant was wearing a long, dark coat at that time, which Piske identified at trial.
Piske took the mask and gun to the scene and showed them to witnesses. Defendant's fingerprints were not on the gun or the make-up kit found in the suitcase. Piske test-fired the gun and it misfired about 10 times in 11.
Officer Shroeder traveled down Hickory St., after receiving a call concerning the incident, and saw a blue Pontiac pull into the driveway at 464 Hickory St. A few minutes later he returned to 464 Hickory St., in response to a radio message. The blue station wagon was still there. Schroeder met Piske there and did not recall any conversation he or Piske had with defendant when he was arrested.
Officers Heine and Lawrence returned to the scene of the offense after they received the gun found in the car with defendant. Heine remained in the car, parked where Pasholk's car had been parked, and left the engine running and windows closed. Lawrence test-fired the gun where he was ...