APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of theft by deception (Ill. Rev. Stat. 1975, ch. 38, par. 16-1(b)) and was sentenced to a term of one to three years in the custody of the Department of Corrections. On appeal, she contends that the trial court erred by (1) denying her motion for a continuance to obtain an impeaching witness, (2) admitting incriminating admissions given in violation of her Miranda rights, (3) admitting a police officer's hearsay testimony on an out-of-court identification of defendant made by the complaining witness, and (4) further denying her a fair trial by several evidentiary rulings.
The following evidence pertinent to this appeal was adduced at trial.
While she was shopping at a supermarket near her home in Maywood on August 26, 1971, she became engaged in a lengthy conversation with defendant. Defendant stated that she was from California and was carrying $7,000 because she distrusted the local banks. Throughout this conversation defendant stood close to Mrs. Hollst and the store's lighting was good.
Thereafter, a third woman, Patricia Plunkett, approached and stated that she had found an envelope in a nearby telephone booth. Plunkett asked Mrs. Hollst and defendant to witness the opening of the envelope. After Mrs. Hollst demurred, Plunkett left the store. Defendant then suggested that they should have opened the envelope to check for money. When Mrs. Hollst "got a little greedy" and agreed, defendant left and returned with Plunkett.
Plunkett opened the envelope and stated that $15,000 was inside. She offered to inquire about their rights in the money from her employer an attorney. She then drove defendant and Mrs. Hollst near an office building and went around the corner towards the building. When she returned she said that there was $21,000 and an uncut diamond in the envelope. Plunkett proposed that they divide the money into three $6,000 shares with the remainder going to her employer. She asked defendant and Mrs. Hollst to post some earnest money as security to insure that it would not look suspicious if they suddenly possessed a large sum of money. Defendant immediately gave Plunkett a wallet supposedly containing her $7,000 withdrawal.
Thereupon Mrs. Hollst gathered her own bank books and withdrew $4,000 from two banks. Defendant accompanied her into the banks and was present when Mrs. Hollst gave her $4,000 to Plunkett.
Plunkett, defendant and Mrs. Hollst then drove back to the office building where Plunkett left to give Mrs. Hollst's $4,000 to her employer. When she returned to the automobile, Plunkett told Mrs. Hollst that she could now pick up her $6,000 share plus her $4,000 security. However, when Mrs. Hollst went to the designated office, she found a travel bureau. She quickly returned to where the automobile had been parked, but Plunkett and defendant were gone. She finished her shopping and called the police upon her return home.
Mrs. Hollst identified defendant in court as the shill in this confidence game. Although defendant's hair was red at trial, it had been blonde on August 26, 1971. She had also identified Plunkett and defendant in police photographs prior to trial.
On cross-examination, she admitted previously testifying that she was in the store at 3 p.m. not at 1:30 p.m. She also stated that defendant had "shoulder length hair * * * she did not have short hair."
On redirect, she stated that her husband suffered a heart attack a few days after this incident. Defendant objected and moved for a mistrial. The trial court immediately struck the answer and denied defendant's motion.
Thereafter a hearing was held on defendant's motion to suppress certain admissions made by defendant at her initial interrogation. Defendant testified that she was not given the Miranda warnings. Defense counsel then called Officer Guynne who detailed his interrogation of defendant. On cross-examination he stated he advised her, inter alia, that "she had the right to obtain the services of a lawyer" and that a lawyer would be appointed if she could not afford one. Defense counsel argued that defendant's admissions were induced by promises or coercion. The State argued that ...