APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Anthony Parson, James Bizzle, and Marcus Franklin were charged by a five-count indictment with the murders of Joseph Nodiff and Wilbur Greer, the attempt murder of Melvin Lewis, the armed robbery of $150 from Joseph Nodiff, and the armed robbery of a .38-caliber gun from Edward Houston. Parson and Bizzle were tried together before a jury in March 1973. After the State had presented its evidence, the attorney for Parson and the attorney for Bizzle moved for directed verdicts on all five counts. The motions were allowed with respect to the attempt murder but denied with respect to all other counts. The jury returned verdicts of not guilty with respect to both defendants on the count of armed robbery of Joseph Nodiff and guilty verdicts with respect to both defendants on the remaining three counts. However, a mistrial was declared when one of the jurors refused to affirm the verdicts upon the polling of the jury.
Parson, hereinafter referred to as defendant, was brought to trial individually in February 1974, again before a jury. He was tried for the murders of Nodiff and Greer and the armed robbery of the gun from Houston. Prior to this second trial it was determined that the jury in the original trial had affirmed the not guilty verdict as to the armed robbery of Nodiff.
The second trial resulted in jury verdicts of not guilty with respect to the murders of Nodiff and Greer and of guilty with respect to the armed robbery of Houston. Judgment was entered upon the verdict and the defendant was sentenced to 30 to 90 years. From the judgment on the guilty verdict and the sentence defendant brings this appeal. Defendant raises four issues: (1) whether the State proved the defendant guilty beyond a reasonable doubt; (2) whether reversible error occurred when the jury was allowed to view a photograph which the trial court later ruled inadmissible; (3) whether reversible error occurred in allowing the State to prove the date of a prior armed robbery of which the defendant had been convicted; and (4) whether the sentence was excessive.
This case arose out of the armed robbery of the Ohio Market in East St. Louis, Illinois, by three men on May 29, 1971. The Ohio Market is a neighborhood grocery store which at the time of the robbery was owned by Joseph Nodiff. During the course of the robbery $150 was taken from the person or presence of Nodiff and a pistol was taken from the person of Edward Houston, a store employee. Also during the course of the robbery Wilbur Greer, a customer, was shot one or more times in the chest and Nodiff was shot once through the head. Nodiff died immediately. Greer died eleven days later from pneumonia which had directly resulted from the wound in his chest.
Defendant's first contention on this appeal is that the State failed to prove him guilty beyond a reasonable doubt of the armed robbery of the .38-caliber pistol from Edward Houston. Defendant bases this contention on his assertions that the eyewitnesses viewed the robber only fleetingly and that the jury returned inconsistent verdicts in finding defendant not guilty of the murders but guilty of the armed robbery of the pistol.
There were three eyewitnesses to the crimes committed at the Ohio Market on May 29, 1971, who testified at the second trial of the defendant. Melvin Lewis and Edward Houston, employees of the store, and Janie Pegues, a customer, each positively identified the defendant at the trial as a participant in the crimes. Lewis testified that he was a meat cutter and on the morning of May 29, 1971, was working behind the meat counter in the rear of the store. He noticed two strangers come into the store and up one of the aisles to the meat counter. Both of the men had on matching denim pants and jackets. One of the two men, whom Lewis later identified as the defendant, ordered some baloney. As Lewis was slicing the meat, he kept looking back at the two men. One of the two men kept looking toward the rear entrance of the store. A third man dressed in a matching denim outfit then came in the rear door and ordered Lewis to get down on the floor. Lewis noticed that this third man was armed. The other two men went away from the meat counter toward the front of the store and Lewis was not able to see them again.
Houston testified that as he was working in an aisle of the store he heard the recoil of an automatic weapon behind him. He turned to the source of the sound and a man whom Houston identified as the defendant announced a holdup and told Houston to turn around. Before Houston complied with the command he was able to observe the weapon, the defendant's clothing, and the defendant's face, which was not concealed in any way.
Janie Pegues testified that as she entered the front of the store a man announced to her that a holdup was taking place. She asked the man what he had said, and he repeated that it was a holdup and told her to go to the rear of the store and lie on the floor. The man had on a blue jean outfit and black gloves and had a gun in his hand. Mrs. Pegues later identified this man as the defendant. Mrs. Pegues went to the rear of the store; she did not lie down, however, but instead stood facing the front of the store and observed the man who had announced the holdup to her standing near the front doors.
• 1 The record clearly demonstrates that defendant was positively identified by three witnesses as a participant in the criminal activity which took place at the Ohio Market. The testimony of these three witnesses belies any assertion that they were able to view the defendant only fleetingly.
• 2 The thrust of the second part of the reasonable doubt argument made by defendant is that, if defendant was sufficiently identified as a participant in the crimes, it was inconsistent to convict him of the armed robbery of Houston's pistol while not convicting him of the murders of Nodiff and Greer. Although it is not clear that a reversal of this case would be required if we in fact found the verdicts to be inconsistent (see People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840; People v. Dawson, 60 Ill.2d 278, 326 N.E.2d 755), we find it unnecessary to discuss that point, for under the circumstances of this case there was no inconsistency in the verdicts.
As stated previously, defendant's second trial was for three offenses the murder of Joseph Nodiff, the murder of Wilbur Greer, and the armed robbery of a pistol from Edward Houston. Among the jury instructions given were IPI 7.01, 7.02, 14.01, and 14.02. These instructions were given in full, with no modification other than the insertion of the names of the victims and the term "armed robbery" where appropriate. No instruction on the law of accountability was given, however. IPI 7.02 says in part:
"To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of ____________________;
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty."
Thus, without an accountability instruction, the jury was told by IPI 7.02 to find the defendant not guilty of murder unless the proof showed beyond a reasonable doubt that he performed the acts which caused the death of either Greer or Nodiff. Similarly, the jury was told by IPI 14.02 to find the defendant not guilty of the armed robbery of Houston unless the proof showed beyond a reasonable doubt that the defendant, rather than one of the other robbers, took the pistol from Houston. In other words, the instructions told the jury that it could not find the defendant guilty of any crimes which were not the result of the direct acts of the defendant.
Our review of the record of defendant's second trial shows that the evidence fell far short of establishing who actually shot Greer and Nodiff. It is not necessary that we discuss this evidence other than pointing out that none of the eyewitnesses actually saw the shooting. They could only describe hearing footsteps, scuffling, and gunshots in the area where the victims were later found. On the other hand, the evidence that the defendant was the robber who actually took the pistol from Houston is sufficient to meet the standard of proof beyond a reasonable doubt.
Of the three occurrence witnesses who testified concerning the crimes committed at the Ohio Market, only Houston described the taking of the pistol from his person. Neither Melvin Lewis nor Janie Pegues was questioned concerning this incident during their testimony. Houston's testimony on its face is confusing in that Houston at some times appeared to be describing the defendant while at other times he appeared to be describing one of the other robbers as the one who took the pistol. Houston at one point described being searched without the pistol being taken and later described the pistol being grabbed from his holster. He also continuously referred to "the man that was behind me" or "the fellow behind me," even though Houston changed positions several times during the robbery which resulted in a different robber being behind him at different times.
However, three factors make it clear that Houston was describing the defendant as the one who took the pistol. The first is the fact that the defendant was the only one of the three robbers whom Houston ever described as carrying a gun. The second is the fact that the defendant was the robber who originally came up behind Houston, and that, as a consequence, Houston continuously referred to the defendant as the man behind him. The third is our reference to People's Exhibit No. 1, which is contained in the record on appeal. (People's Exhibit No. 1 is a diagram of the inside of the Ohio Market, which Houston used to illustrate to the jury the location of the things and events he described.)
In light of these three factors, Houston's testimony on direct examination, as pertinent to the taking of his pistol, can be summarized as follows. Houston heard the weapon recoil, turned, and saw the defendant. The defendant announced the store robbery to Houston and told him to turn around. Houston then turned around and saw a man (whom we can refer to as the second robber) near "check-out counter number one" and a "seed rack." The second robber told Houston to get on the floor, which Houston did. As Houston was lying on the floor the second robber came over and began to search him. Before the second robber completed the search, however, some scuffling and gunshots were heard in another part of the store. When the second robber heard the scuffling and gunshots, he stood up without having completed the search and without having found the pistol, which Houston had in a holster on his left side under his apron. The defendant then came to Houston and told him to get up, but the second robber told Houston to stay down. Since the defendant was the one with the weapon, Houston stood up. The defendant told Houston to put his hands on his head. Houston did this and began walking toward the rear of the store. (It is not clear from the testimony why Houston began walking to the rear of the store. Apparently, the defendant wanted to get Houston into the meat cooler and told Houston to walk there.) When Houston reached a point halfway down the aisle, the defendant stopped him because the defendant became aware of the pistol under Houston's apron. He made a statement such as "I thought you didn't have a gun," snatched the gun from Houston's belt, and pushed him into the cooler.
On cross-examination, Houston admitted that he really did not know with absolute certainty which of the robbers had actually taken the pistol from him, because it was snatched from behind. However, he stated that to the best of his knowledge it was the defendant who took the pistol. He explained that this belief was based on his recognition of the defendant's voice, the fact that the defendant had been the one who had told him to get up, and the fact that when he got up the second robber was in another location of the store (near the "seed rack"), whereas the defendant stood face to face with him. At no point throughout his testimony did Houston express any knowledge of a third participant in the crimes.
• 3 The ability of Houston to determine that the defendant was the robber who actually took the gun was a matter for the jury to decide in assessing the credibility of Houston's testimony. (People v. German, 22 Ill. App.3d 389, 317 N.E.2d 113.) The general rule being that the sufficiency of eyewitness identification is a matter for determination by the trier of fact, a reversal will not be warranted unless the testimony is so unsatisfactory as to leave a reasonable doubt as to the guilt of the accused. (People v. Rogers, 23 Ill. App.3d 115, 318 N.E.2d 715.) We believe that the testimony was sufficient to prove beyond a reasonable doubt that it was the defendant who actually took the gun. It therefore was not necessary for the jury to resort to an accountability theory to determine the defendant guilty of taking the pistol from Houston. Considering the instructions given in this case and the absence of any instruction on the law of accountability, the jury must have believed that it could convict the defendant only for those crimes which directly resulted from his acts. In light of the evidence and instructions in this case, the jury's determination that the ...