APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, George Nurse, was charged with four counts of armed robbery and one count of unlawful use of weapons. After a bench trial defendant was found guilty of three counts of armed robbery and was sentenced to a term of 5 to 15 years on each charge, the sentences to run concurrently. He was also convicted of the unlawful use of weapons charge and sentenced to a term of 1 to 3 years, that sentence also to run concurrently. However, the State agrees with defendant that this latter charge arose out of the same acts as did the greater offenses of armed robbery. The trial court may not enter judgment on more than one offense arising from the same transaction. (People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1.) Accordingly, the judgment of conviction as to the unlawful use of weapons charge is reversed.
Defendant's remaining contentions on appeal are that he was not proved guilty of armed robbery beyond a reasonable doubt; that certain comments of the trial judge indicated a preconceived attitude regarding defendant's guilt and denied him a fair trial; that the court committed reversible error in excluding certain testimony; and that the sentences were excessive.
On May 7, 1973, at approximately 9:55 p.m., two armed men robbed several employees of a restaurant located in the Village of Wilmette. The men entered the premises through an unlocked side door. One of the men, Eddie Gibson, was dressed as a woman and armed with a .38-caliber revolver. The other man, the defendant, was armed with a 12-gauge shotgun and had a stocking over his head. Gibson (not involved in this appeal) entered a plea of guilty to the charges and was sentenced to prison. Defendant admits to being present, armed and masked, but maintains that he acted under the compulsion of Gibson. In his testimony at trial, Gibson supported defendant's contention that he compelled defendant to participate in the robberies.
The pertinent evidence relating to the defense of compulsion is as follows. Both defendant and Gibson testified that approximately one-half hour before the robbery, defendant was returning to his home in Evanston. When it began to rain, defendant attempted to hitch a ride. Gibson, dressed as a woman, drove up and told defendant to get in the car. When defendant entered the vehicle, he was within three blocks of his home. Although Gibson immediately recognized defendant as an old acquaintance, defendant at that time believed the driver to be a woman. Defendant and Gibson had been acquainted with each other since 1965 when they attended the same junior high school together.
Thereafter, Gibson displayed a revolver, stated that he wanted money, and indicated that defendant was going to help him obtain it. While defendant testified that Gibson immediately drew the revolver, Gibson testified that he did not exhibit the weapon until they had been driving about 10 minutes. While Gibson testified that he did not divulge his plan of robbery until they reached the restaurant, defendant stated that he was informed of Gibson's intentions in transit.
When they reached the restaurant, Gibson drove behind it into an alley. He told defendant to remove an unloaded shotgun from under the seat and to get out of the vehicle. He then instructed defendant to enter the side door with him and to stand by the door acting as though he were participating in the robbery. Before entry, Gibson gave defendant a stocking to place over his head. Gibson testified that he made defendant enter the restaurant before him, but defendant related that he entered a few seconds after Gibson under the latter's threat to kill all the employees. A witness for the State, Linda Nelson, testified that she saw Gibson enter the restaurant alone and did not notice defendant in the corner of the room until about two minutes later.
The employees were herded to the back of the restaurant at gunpoint and lined up against the wall with their hands behind their necks. As Gibson ordered everyone into the washroom, defendant testified that he cracked the side door to escape, and observed a police car outside. His attempt to escape was thwarted when Gibson yelled at him to enter the washroom himself. Gibson, however, denied that he had prevented defendant from trying to escape, but had merely warned defendant that it would be suicide to attempt to leave the premises while the police were outside.
When the police were discovered, Gibson removed his wig. Defendant testified that it was only then that he recognized Gibson as an old acquaintance. When defendant entered the washroom, he told the employees to stay calm because Gibson was "crazy," "a nut" and "dangerous." He also told the employees that he had been picked up by Gibson while hitchhiking and had been forced into participating in the robbery. Defendant also told the employees that his gun was unloaded, and at least for a while placed the gun on the floor within a foot of one of the employees. The employees supported this testimony of defendant, but did not corroborate his statement that he broke the gun open to show that it was unloaded.
Upon learning of the police presence, Gibson held the gun to a female hostage's head and negotiated with the police. He insisted upon defendant's release asserting that he had compelled him to participate at gunpoint. The police agreed to the release of defendant and instructed defendant to call Gibson when safe. Defendant drove Gibson's vehicle to his own home and made the telephone call. He talked to both Gibson and a police officer and testified that the officer told him to remain at home until the police came. He testified that he gave his name and address to the police before he departed. Defendant remained at his home until the next day when the police kicked down his door and arrested him. He was found kneeling in his closet and said that he had not heard the knock at the door.
Officer Carlos Mitchum of the Evanston police department testified that he was called to the scene on the evening in question. He negotiated defendant's release with Gibson. Officer Mitchum denied that defendant had given his name and address to the police before he departed, and he also denied advising defendant to stay at home until he was contacted by the police. Officer Mitchum also testified that he saw Gibson take shells out of both the revolver and the shotgun. Mitchum further testified that in a 60-day period prior to the robbery in question he had seen Gibson and defendant in an Evanston pool hall at the same time about 10 or 12 times.
Two employees of the restaurant, Linda Nelson and Joan Carew, testified that they heard defendant address Gibson by his nickname "Bo," after the latter had taken off his wig. Miss Nelson further testified that the two men had conversations although she could not remember any specifics. Defendant and Gibson denied any use of the word "Bo" by defendant.
• 1 Defendant's principal contention is that he was not proved guilty of armed robbery beyond a reasonable doubt in that he was compelled to participate in the crime under fear of death or great bodily harm. The pertinent statute provides as follows:
"(a) A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct." (Ill. Rev. Stat. 1973, ch. 38, par. 7-11.)
Compulsion is an affirmative defense (Ill. Rev. Stat. 1973, ch. 38, par. 7-14) and, therefore, once properly raised by some evidence by the defendant, the State must overcome it by proof beyond a reasonable doubt to ...