APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendants, Marvin Richmond and Clemon Webb, were tried without a jury for armed robbery, adjudged guilty, and each was sentenced to a term of 5 to 7 years.
Isaac Lewis, a 17-year-old college student, claimed he was robbed of $10 and his coat on a lighted rapid transit line platform in Chicago at about 11:30 p.m. on November 4, 1973, as he was on his way to work at the main post office. His testimony was that defendant Webb stuck a gun in his side and announced a stickup while defendant Richmond searched his pockets, and took his money and coat. Lewis returned home immediately and reported the robbery to the police.
The defendants testified that at the time Lewis claimed he was being robbed, they were attacked by Lewis and his friends on the street a few blocks from the rapid transit platform. Richmond ran away. Webb grabbed a bicycle handlebar he saw on the ground, and in swinging it at Lewis tore the back of his coat. Webb then also ran away with, as he testified, Lewis chasing him and shouting, "You are going to pay for my coat."
Lewis' account of how defendant Richmond was apprehended demonstrates self-help of a type which may not always be wise, but which in this instance was effective. Lewis, who had seen defendants in his neighborhood, went looking for them with some friends the afternoon following the robbery. When apprehended by Lewis, the defendants agreed Webb would leave and get the coat. Webb failed to return and the police were called and took Richmond into custody. Richmond testified that while he was being held by Lewis and his friends on November 5, 1973, he told them he did not have Lewis' coat. Webb testified he ran away when Lewis and his friends approached with Lewis again shouting after him that he was going to pay for Lewis' coat.
Lewis picked defendant Webb's picture out of photographs of six different persons submitted to him by the police, and he identified Webb at a police lineup of five persons as well as at trial.
The issues raised by the defendants on this appeal are: Did they understandingly waive their right to trial by jury; were they denied effective assistance of counsel; did the trial court in view of defendants' insistence upon immediate trial abuse its discretion in failing to grant their appointed counsel's request for a postponement to provide additional time to prepare the defense; did the trial court err in considering motions to suppress simultaneously with the trial, instead of hearing these motions prior to trial; were the defendants found guilty of robbery instead of armed robbery; and, was the sentence of the defendants for armed robbery proper?
Since the pretrial procedures in the circuit court are relevant to the resolution of these issues, it is helpful to summarize them at some length. Richmond was in custody from November 5, 1973, and Webb from December 5, 1973. The public defender was appointed to represent them on February 19, 1974, and informed the court the defendants were announcing ready for and demanding trial. Because the trial judge and the public defender were engaged in another matter, the case was continued on the motion of the State to February 26. On that date the public defender again advised the court that the defendants were demanding trial, but that she was not prepared to go to trial. The trial judge explained the situation to the defendants, and referring to People v. Carr (1972), 9 Ill. App.3d 382, 292 N.E.2d 492, informed them that the court had discretion to grant a continuance notwithstanding their desire for immediate trial so that they could not later claim they were deprived of effective assistance of counsel. Both defendants acknowledged they understood what the judge was telling them, but both indicated they wanted to go to trial without further delay, and that they still desired the public defender to represent them if she would. The following colloquy then occurred:
"MR. KLEIN [the prosecutor]: Going to be a bench or a jury?
MRS. BURKE [the public defender]: I could not say at this point, Judge.
THE COURT: Can the defendants tell me whether you want a jury or the Court to try it?
DEFENDANT RICHMOND: Bench trial.
THE COURT: You're asking for a bench trial, ...