APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendant was found guilty of murder, attempt murder, armed robbery, and two counts of aggravated battery. He was sentenced to terms of 100-300 years for the murder, 10-20 years for the attempt murder, 20-60 years for the armed robbery, and 3-10 years for each of the aggravated batteries. The sentences were ordered to run concurrently.
On appeal, defendant contends (1) he was not proven guilty beyond a reasonable doubt; (2) it was error to refuse the performance of a courtroom demonstration; (3) he was improperly convicted of multiple charges arising out of a single incident; and (4) the murder sentence was excessive.
The record discloses that in the robbery of a liquor store, two men wearing masks shot the owner and a patron. The latter subsequently died of his wounds.
At trial, the owner testified he was unable to identify the faces of either of the two men involved in the robbery but stated that one of them took the tray from the cash register, which contained approximately $150, and the other, who had a blue steel automatic revolver, did the shooting. Both then ran out of the store and headed north on Milwaukee Avenue.
Leroy Nega, a witness for the State, stated that he was on his motorcycle stopped in traffic on Huntington Avenue for a Milwaukee Avenue traffic light at the time in question. (Huntington is the first east-west street north of the liquor store, which was on Milwaukee Avenue.) In substance, Nega testified that two men walked past him at a fast pace. One was wearing a mask and carried a box about three inches in depth, one and one-half feet long and one foot wide. The other man, who was closest to the street and to Nega wore no mask. After they passed him, he observed both run south in an alley.
Two days later, the police were called to the scene of an unrelated shooting. Shortly thereafter, defendant was arrested after being identified by witnesses as the man who had done that shooting, and a blue steel semiautomatic pistol was taken from him. Two days after defendant was arrested, Nega was shown eight or ten photographs by the police. He failed to identify defendant when he first looked through the photographs, but after again going through them he picked out the two pictures of defendant as the man without the mask that he had seen on Huntington Avenue two days before. The gun taken from defendant was introduced into evidence in the trial of the instant case, and a firearms technician who had compared bullets test-fired from this revolver with those removed from the owner and patron testified that the bullets had been fired from the same gun. There was a verdict of guilty on all charges.
Defendant first contends he was not proven guilty beyond a reasonable doubt because (1) the identification testimony was insufficient to sustain his conviction; and (2) the evidence was insufficient to establish that the gun found in his possession at the time of his arrest was the one used in the crimes charged.
He points out that Nega, the sole identification witness, gave conflicting testimony as to where the two men were when he first saw them on Huntington Avenue; namely, that he first saw them about 100 feet away at the corner of Huntington and Milwaukee; then that he first saw them when they were directly to his right, about 100 feet from the corner; after which, he again stated that he first saw them at the corner; still later, he said they were immediately to his right when he first saw them; and finally, he again said he first saw them at the corner. He argues that if Nega did not see the two men until they were directly to his right, he had little or no opportunity to see defendant's face; and furthermore, because Nega could not identify the box carried by the man allegedly with defendant (beyond stating its dimensions,) this, he argues, suggests that the lighting was not good. Defendant, coupling these two arguments with the fact that Nega did not initially recognize defendant in the photographs, urges that Nega's identification testimony was improbable and unconvincing.
It is well established that it is within the province of the trier of fact to determine the credibility of witnesses, and we will not interfere with that determination unless the verdict is found to be palpably contrary to the weight of the evidence. People v. Pulaski, 15 Ill.2d 291, 155 N.E.2d 29, cert. denied, 359 U.S. 997, 3 L.Ed.2d 985, 79 S.Ct. 1134.
• 1, 2 Here, defendant did not testify and no alibi witnesses were offered on his behalf. Nega was the only identification witness and, although his testimony was conflicting as to where he first saw the two men, he did testify that the lighting was good and that he had no difficulty in seeing defendant's face from a front and side view as the two men passed him. We cannot accept defendant's statement that the inability of Nega to identify the object defendant's alleged companion was carrying, other than by its dimensions, is indicative of poor lighting in the area. The fact that he was able to give the dimensions of the box indicates to the contrary. Moreover, we see nothing in the record to indicate that the police used suggestive procedures, as implied by defendant, in relation to Nega's photographic identification. It appears that two photos of defendant were included in a stack handed to Nega by the police. There were at least six and perhaps ten in the stack, and we do not believe that the inability of Nega to identify defendant from the photos on his first viewing suggests in itself that his identification on a second viewing was tainted.
In further support of the contention that he was not proven guilty beyond a reasonable doubt, defendant claims that the gun received in evidence was improperly admitted because it was not sufficiently identified. We see no merit in this contention. Officer Hill testified that after taking a semiautomatic blue steel pistol from defendant, he carried it to the police station where he inventoried it and then gave it to the desk sergeant to be sent to the crime laboratory. The record includes not only his signed inventory slip containing the serial number of the gun but also a receipt of the crime laboratory bearing the same number. Hill further testified that the gun introduced in evidence was the one he removed from defendant. It is not suggested here by defendant that the procedures used in the handling and testing of the gun were improper.
• 3 The principle to be applied in the case before us is that, in the absence of any indication of substitution, alteration, or other form of tampering, reasonable protective techniques are sufficient. (People v. Wrona, 7 Ill. App.3d 1, 286 N.E.2d 370; see also, People v. Scott, 3 Ill. App.3d 493, 279 N.E.2d 19.) We believe that reasonable protective means ...