APPEAL from the Circuit Court of Cook County; the Hon. JAMES
BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After trial by jury, David Sanders (defendant) was found guilty of armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18-2) and sentenced to 6 to 20 years. In his appeal defendant raises these issues for consideration: the manner of jury selection; competency of evidence regarding two previous convictions of defendant; competency of certain testimony by a police investigator; allegedly improper questions put by the prosecutor and allegedly improper comments by the trial court to the jury during their deliberation.
Since defendant raises no point on the sufficiency of the evidence to prove his guilt beyond reasonable doubt, we need not summarize the entire record. It is sufficient to state that the proof showed beyond reasonable doubt that defendant participated in the armed robbery of a jewelry store, assisted by three other men and one woman. The State's case included the testimony of the store owner and two of the men who had participated in the robbery. The evidence may be characterized as overwhelming proof of guilt. The factual details concerning each of the issues raised by defendant will be stated as required.
Defense counsel requested that he be permitted to question the individual prospective jurors on voir dire. The trial court denied this and requested that both counsel submit proposed questions. This was done by attorneys for both sides. At a later point in jury selection, counsel for defendant renewed this request. The trial court suggested that supplemental questions be submitted but this was never done.
1 The record does not show the existence of any prejudice to defendant as a result of the manner in which the jury was chosen. It has repeatedly been held that in such a situation this contention by defendant has no validity. We have collected the authorities on this point in People v. Peters, 33 Ill. App.3d 284, 291, 337 N.E.2d 716, leave to appeal denied, 61 Ill.2d 603.
Defendant made a motion in limine to exclude evidence of two previous convictions of defendant, in Illinois, for rape. This motion was denied by the trial court. Both of these judgments had been entered during 1961; one sentence was for 20 years and another for 35 years. Defendant was released from the Illinois penitentiary on July 11, 1968, and was still on parole for these offenses when the armed robbery was committed. Later in the proceedings counsel for defendant stated for the record that this ruling prevented him from calling his client as a witness.
2 In our opinion, application of the principles set forth in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, requires us to reject defendant's contention. As the trial judge pointed out, approximately three years had elapsed between the time of defendant's release from prison and the commission of the armed robbery. Approximately five years had elapsed between defendant's release and the actual trial. Thus, these two convictions were well within the 10-year period required by Montgomery. Also, since the crime of rape is a felony, this proof was proper under the same standard. As pointed out by the State, there is a definite materiality in past commission of an infamous crime so that impeachment upon this basis is proper. (See Werdell v. Turzynski, 128 Ill. App.2d 139, 153, 154, 262 N.E.2d 833, leave to appeal denied, 44 Ill.2d 587.) Finally, the statements made by the trial court in passing upon this motion indicate that he exercised his discretion in determining that the probative value of these convictions was not substantially outweighed by the danger of unfair prejudice. It is our opinion that this discretion was properly exercised.
The People called Investigator Cozzi, a Chicago police officer. Prior to his testimony defendant made a motion in limine to exclude on the ground that it would permit proof of incompetent hearsay in an indirect manner. The trial court denied this motion on the theory that defendant's counsel had attempted to show that defendant had previously been acquitted of murder of a police officer and was unjustly accused of the armed robbery as a result of intentional police efforts to retaliate for the acquittal.
Over defendant's objection, Investigator Cozzi testified that he was assigned to the robbery on September 21, 1971, the day it occurred. He testified in some detail to what he had done in locating a certain described automobile with a specified license number; then arresting one of the co-defendants; then arresting another and recovering from her possession part of the jewelry taken in the robbery and finally arresting the two accomplices who had testified against defendant. He testified that all of these activities took place on or before September 23, 1971, at which time a warrant was obtained for the arrest of defendant and duly served.
3 In our opinion, none of this evidence was within the legal definition of hearsay. The frequently cited decision of the Supreme Court in People v. Carpenter, 28 Ill.2d 116, 190 N.E.2d 738, points out the distinction between admissible testimony and hearsay (28 Ill.2d 116, 121). The testimony of Cozzi was confined strictly to his physical activities and to the bare occurrence of the conversations. At no time did he testify to the substance of any part of any conversation. His testimony as to his activities was all in court under oath and subject to cross-examination. Under these circumstances the court acted properly in denying the motion to exclude it. People v. Jackson, 95 Ill. App.2d 193, 238 N.E.2d 196, cited by defendant, is of no assistance. It involves the propriety of evidence concerning prior arrests of defendant at a hearing in aggravation and mitigation. Similarly, Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065, is of no assistance here as it is generally concerned with the constitutional right of confrontation of witnesses. This right of defendant was not violated or abridged in any manner in the case before us.
Finally, perhaps of greatest importance, the assailed testimony showed that the arrest warrant was issued on the 23rd or 24th day of September, 1971. The homicide of the policeman did not occur until September 26, 1971. Thus, the issuance of the warrant for defendant's arrest could not possibly have been motivated as contended by defendant.
On re-cross-examination of Investigator Cozzi, counsel for defendant questioned him about whether the owner of the jewelry store had viewed a picture of the defendant. On redirect examination, the State's Attorney asked the witness if he had ever heard of a motion to suppress identification. Counsel for defendant made a general objection which the trial court properly sustained. Outside of the presence of the jury, the defense attorney then moved for a mistrial because of the suggestion by the State's Attorney, by this question, that there had been a previous motion to suppress the identification. The court denied this motion. Defendant now urges that this constitutes reversible error.
This alleged error was neither specified nor mentioned in the written motion for a new trial filed by defendant. Failure to do so constitutes a waiver of the issue so that it may not be urged as ground for reversal. See People v. Pickett, 54 Ill.2d 280, 282, 296 N.E.2d 856, and cases there cited.
4 Even if the issue of waiver is brushed aside and the point is considered, we must necessarily conclude that the error, if there was one, was harmless. The evidence so clearly establishes the guilt of the defendant that any error in simply stating the question to the jury must be deemed harmless. See People v. Gant, 58 Ill.2d 178, 186, 317 N.E.2d 564, dealing with improper admission of hearsay evidence. In the case before us an objection to the question was promptly sustained and the matter was never brought up again. We cannot believe that the simple asking of this one question during the course of a lengthy trial should be considered sufficient to require reversal of the judgment of guilt in this case. The case is far different than People v. Bates, 26 Ill. App.3d 306, 325 N.E.2d 123, cited by defendant. There, reversal of a conviction was ...