APPEAL from the Circuit Court of Du Page County; the Hon. L.L.
RECHENMACHER, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE GUILD delivered the opinion of the court:
The defendant was tried by a jury, found guilty of the offenses of burglary and armed robbery and sentenced to the State Penitentiary for a period of 5-12 years.
In this appeal the defendant has raised 5 issues which he contends are reversible error. The contentions of the defendant are: (1) whether the trial court erred in denying defendant's motion to suppress both the oral and written statements; he further states that the State failed to list all witnesses to these statements and failed to produce all material witnesses thereto at the pretrial hearing; (2) whether defendant's guilt was proven beyond a reasonable doubt; (3) whether the trial court erred in refusing defendant's tendered instruction setting forth the issues that must be proved by the State in order to sustain the charge of armed robbery where the State attempted to prove defendant's guilt by accountability principles; (4) whether the prosecution committed reversible error in commenting during the closing argument upon the defendant's failure to call a witness in his own behalf; and (5) whether the trial court erred in entering judgment on the jury verdicts of guilty of armed robbery and burglary where both offenses both allegedly arose from the same conduct.
On the morning of October 18, 1972, defendant, Robert Johnson, and Dorothy "Barbara" Jones drove from the west side of Chicago to Winfield. Dorothy Jones was driving and the car was owned by one "Benny." The car was driven to the residence of Mrs. Jane Ruehle, located on Roosevelt Road in Winfield, Illinois. Mrs. Ruehle was taking a bath and she looked out of the window from the second floor. She noticed a green car parked in her driveway. She observed a black man coming toward her door. The man looked through the window of the door and Mrs. Ruehle called the police. The black man was then seen by her as he ran around the front of the house to the back yard. She then walked to the bedroom door where she could see the man taking a storm window off her bathroom window and saw him coming in the window. She returned to the telephone, requested the operator to get help and then laid the telephone down. She went to her west door. Upon arriving at the door she looked outside and saw a black man 2 or 3 feet from the windowpane, whom she subsequently identified as the defendant, James T. Burks.
The man who entered the residence through the bathroom window then grabbed her around the neck, stuck a knife to her throat, threatened her and demanded her money. He took her into one of the bedrooms where he tied her hands and feet with strips from a bedsheet he tore up and gagged her. The black man in the house subsequently identified by her was Robert Johnson. He repeatedly threatened to kill her if she would not give him money. She was taken upstairs by him and she observed Johnson take several items down the stairs and return several times. At one time she heard another voice in the house which she believed to be a male voice.
She also testified that she saw a black female by the car of the defendants who was wearing an Afro haircut and appeared to be zipping up her pants. After the defendant Johnson left the premises Mrs. Ruehle succeeded in extracting herself from her bindings which he had placed upon her feet and arms; she then looked out of the window and saw a squad car pull into the driveway. At that time she saw a black person running north toward Roosevelt Road. Mrs. Ruehle then ran out the door, got into the squad car, locked the car doors and sounded the horn. Robert Johnson and Dorothy Jones were apprehended a short distance from the premises, and the defendant herein, James T. Burks, was apprehended within a few minutes by Trooper Wills who testified that he had been given the description of the subject who had run southwest through a field away from the house. The defendant Burks was apprehended by Trooper Wills as he was walking north on Purnell Road. Defendant's pants were wet and filled with burrs and he was wearing a jacket described as a "linen-type colored jacket, light khaki, brown light jacket" or a "dark brown medium length jacket." The three subjects were placed in a squad car and taken to the Du Page County sheriff's office. The green car, which had been parked in Mrs. Ruehle's driveway, was searched and various items which had been taken from the Ruehle residence were found therein. Upon the person of Robert Johnson were found four watches which were subsequently identified by Mrs. Ruehle as being her property.
We turn to the first contention of the defendant that the oral and written statements should have been suppressed where the State failed to list all of the witnesses. It is to be noted that prior to trial a hearing was had on the admissibility of the oral and written confession. The motion to suppress was denied.
Defendant contends in this argument that all witnesses to the statement should have been produced. Actually, the statements, both oral and written, were taken from the defendant by Detective Edmond Lowe and Detective Lepic in the Du Page County jail. There is no evidence that any officer had any part in the taking of the statement from defendant except Officers Lowe and Lepic. Officers McNechnie and Brancato were in the room from time to time and at one point Officer Brancato, at the trial, was asked if he took part in the interrogating or talking to the defendant, to which he replied he had not. In reply to the defendant's motion for discovery the State listed both Officer McKechnie and Officer Brancato at witnesses. Detective Lowe and Detective Lepic were listed as witnesses to the written confession. While it is true that these officers, and perhaps others, were in and out of the room where the defendant was being interrogated, there is no evidence that they took part in any way in obtaining the confession of the defendant herein. In People v. Sims (1961), 21 Ill.2d 425, 432, 173 N.E.2d 494, 497, the supreme court, in considering a number of cases involving this question, stated:
"The principle that emerges clearly from all these cases is that the persons who must be called as witnesses or whose absence must be explained are those persons whose testimony would be material on the issue of the voluntary nature of the confession."
In People v. Jennings (1957), 11 Ill.2d 610, 144 N.E.2d 612, the court stated that the rule which requires police officers to be produced as witnesses where there is a claim of a coerced confession is not a mechanical rule that requires that every person who had any contact with the defendant from his arrest to the signing of the confession be produced as a witness.
• 1 The basic premise alleged indirectly by the defendant is that he was in withdrawal from narcotics administered between 8:30 and 9:30 on the morning of the offense and that Detectives Lowe and Lepic stated that he would not receive medication or medical help unless he signed the statement in question. The detectives specifically denied this. The defendant testified that he had thrown up both before and after he signed the statement and that he was experiencing withdrawal at that time. In answer to this contention the State put Dr. Tuteur on as a witness. Dr. Tuteur had considerable experience with narcotics patients going through withdrawal in his position as a doctor in charge of those patients in the Elgin State Hospital. In answer to a hypothetical question he stated definitely that a party who took methadone or heroin at approximately 8:30 to 9:30 in the morning would not be going through withdrawal at 6 in the evening of the same day. On a close examination of the record herein we are unable to find that the officers who may have walked in and out of the room were material witnesses to the confession. We fail to see how either of the officers, either McKechnie or Brancato, were material to the taking of the statement and find no error in this regard.
The next contention of the defendant is that he was not proven guilty beyond a reasonable doubt. In support of this contention he contends that the identification of him by the victim, Mrs. Ruehle, was so doubtful that it does not constitute identification and that the admission of his alleged, uncorroborated oral statement and subsequent written statement were improper. In order to put this argument in proper perspective we have the undisputed evidence, not only by the victim that the defendant was present at the scene, but also defendant's own statement that he was there. Defendant does not deny that he drove from Chicago to the premises. He does not deny that he fled the scene and was apprehended by the police on Purnell Road nearby. In explanation of his activities he contends that he was in a drugged stupor and did not awaken until he and his companions were in the driveway of the Ruehle residence. He contends that his statement that he removed the stolen articles from the premises was not correct. In that statement he said:
"What went on in this house I do not know. I only carried some items from the rear of an ...