APPEAL from the Circuit Court of Alexander County; the Hon.
GEORGE OROS, Judge, presiding.
MR. PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant, Harland Sowers, was convicted of armed robbery after a jury trial in Alexander County and sentenced to a term of from 4 to 8 years imprisonment. On appeal defendant contends that he was not proven guilty beyond a reasonable doubt and that he was denied a fair trial by statements of the State's Attorney during final argument referring to defendant's failure to call alibi witness and by references by a police officer to identification of defendant by use of a "mug shot."
On October 24, 1974, William McMillan, then 17 years old, was employed at an automobile filling station in Cairo, Illinois. He testified that about 11:30 p.m. he began to close the station by turning off outside lights, reading the gasoline pumps and counting money. While outside, McMillan heard someone say "Hey" and when the turned he saw a person standing beside the building. The person approached dressed in gray and white pin-stripe coveralls or jump suit, black "combat" boots and a stocking mask, carrying a sawed-off 12-gauge shotgun.
The robber searched McMillan's pockets and forced him into the station where he took approximately $200 from a cash drawer. The robber then sat down to count the money. A car pulled up at the pump whereupon the robber removed his mask and instructed McMillan to tell the customer the station was closed, which he did. When the customer insisted, McMillan agreed to sell him gasoline. McMillan returned to the station to turn on the pumps and the robber gave him money with which to make change. McMillan was with the customer about 35 to 40 feet from the station for approximately 5 minutes and, while he made no effort to tell the customer of the robbery, he did attempt to kick his foot to get his attention. The robber had threatened McMillan not to say anything to the customer.
After the customer left, McMillan returned to the station where the robber was seated at the desk counting money. Another car drove up to the station and the driver approached the door and asked for cigarettes. McMillan told the customer that the station was closed and the customer left. The robber took only $60, returning the rest of the money and told the attendant "thanks brother." He ran into a field behind the station having been at the station about 15 minutes.
McMillan stayed at the station and counted the remainder of the money and closed the station. He made no attempt to call the police because he was afraid the robber was still in the vicinity. He left the station intending to call the police from his home but saw a police car and flagged it down. McMillan testified that the robber wore a gold earring in his left ear and that the station was well lit. McMillan positively identified defendant at trial as the robber.
On cross-examination, McMillan stated that he had known defendant for 2 or 3 years but had not known his name though he thought defendant was a "Sowers." McMillan admitted that he had sometimes "come up short" when counting the money at the station and was responsible for such shortages, but denied that his job would be in danger if he were short $50 or $60. McMillan also admitted that on occasion other people, including other employees, would be in the station. The money was kept in a locked drawer although keys other than the one carried by the attendant were kept in the back room. McMillan also admitted that on the night of the robbery the money drawer contained more money than he was allowed to keep out of the safe. Earlier in the evening a car containing four people had stopped at the station. The car had overheated and one of the occupants put water in it without a discussion with McMillan. Defendant later testified that he had stopped at the station early in the evening to put water in the radiator.
After McMillan stopped the police car, the police took details of the offense and then allowed McMillan to drive his car home where they picked him up and went to the filling station. The officers looked in the weeds behind the station but found nothing. They then went to the police station where McMillan looked at two books of photographs. McMillan could not identify any of the pictures. McMillan admitted that he was pressed for an identification and finally had stated that the robber might have been a "Sowers." The police then obtained a picture of defendant from their files and McMillan identified the picture. After defendant was arrested, McMillan identified him in a one-man "showup" through a one-way mirror. Defendant was not dressed as the robber had been but was wearing an earring.
Robert Tolbert, a detective with the Cairo Police Department, testified that he was called to the scene where McMillan stopped a police car. McMillan gave an officer with him the same description related by McMillan. Tolbert later went to the Roslyn Hotel in Cairo after McMillan stated defendant may have been the robber. Tolbert and Officer Steven Thomas found defendant with one Ricky Burgess. When two other officers arrived with the information that McMillan had positively identified defendant from a "mug shot," the officers arrested defendant and, pursuant to consent by both defendant and Burgess, conducted a search of the room. None of the clothing described by McMillan was found. Under a mattress the officers found $14 belonging to Burgess. On a chair next to the bed the officers found a pair of blue jeans and a shirt which defendant admitted belonged to him. In a pants pocket they found a shotgun shell. These items were introduced at trial.
On cross-examination, Tolbert was vague on how the officers knew that defendant was at the Roslyn Hotel. Tolbert stated that defendant's car was outside the hotel, and he found evidence that "something had been wrong with it." After defendant was taken to the station he was booked and searched but Tolbert could remember nothing found on his person. Tolbert again stated that he found no coveralls, shotgun, or stocking cap and recovered no money and admitted they had not been found in the interval between the robbery and trial. Tolbert also testified that other shotgun shells were found in the hotel room but were not confiscated because Burgess said they belonged to him. On redirect, Tolbert identified defendant as the man arrested.
Steven Thomas, a detective with the Cairo Police Department and Tolbert's partner, corroborated Tolbert's testimony about the arrest and the search of the room. Thomas described the blue jeans as having large cuffs and stated that no debris was found in the cuffs that would indicate that the wearer had been running through weeds. Defendant was fully clothed at the time the pants were found.
Irene McBride was the first defense witness. She testified that she lived with one Carol Wright in an apartment in Cairo. On the evening of the robbery defendant was at their apartment until about 10:15 p.m. and left on foot. She explained that Wright could not appear because of recent dental surgery.
Charles "Skip" Walker testified that between 10:30 and 11 p.m. defendant came to his house. He stayed between 15 and 20 minutes and left on foot.
Defendant Harland Sowers testified that although he had originally lived in Cairo, he now lived in Elgin, Illinois, and had come to Cairo to sell a car he had there. About 4:15 p.m. on the day of the offense he and one Solomon Hatchet, a "disc jockey," and, apparently, Ricky Burgess, drove to Marion, Illinois, to pick up Hatchet's equipment. He stopped at the filling station where the robbery occurred upon his return because his car was running "hot." He asked McMillan where the water was but got no answer. Finally McMillan told him where the water was and defendant put some in the radiator. Defendant then stopped at a pool hall and played pool for a while. Burgess then told him that he wanted to get "back home tonight" so they left and drove to Charleston, Missouri, with Hatchet to unload his equipment. Defendant and Burgess returned. On their return trip, two belts on defendant's car broke outside of Wyatt, Illinois. Defendant changed ...