APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Jose Cruz, was charged with the crime of armed robbery, found guilty by a jury and sentenced to 8 to 25 years in the penitentiary. He raises on this appeal the following issues: (1) whether his identity as the offender was proven beyond a reasonable doubt; (2) whether the cross-examination of the eyewitnesses was so restricted that he was denied his right of confrontation; (3) whether his arrest was illegal and the resulting identification at the lineup therefore excludable; (4) whether he was deprived of a fair hearing on his motion to suppress; (5) whether the State's remarks during closing argument constituted a comment on his refusal to testify; (6) whether the admission of prior crime evidence was prejudicial; and (7) whether hs sentence of 8 to 25 years in the penitentiary was excessive.
On September 6, 1972, at approximately 3 a.m., Douglas Bailey was driving an American-United cab on North Western Avenue in the City of Chicago. Two young men hailed his cab and Bailey pulled to the curb, observing the men as they approached the cab and entered. They asked to be taken to the intersection of Belden and Drake Streets in Chicago. Upon reaching that destination, the men told Bailey to continue on for two more blocks and then pull over. Bailey did as directed, but when he pulled over, stopped the meter and turned to collect the fare, each man pointed a gun at his head. The men then reached over into the front seat, searched Bailey's pockets and removed approximately $60. Bailey was then told to drive a few blocks and pull into an alley. After stopping, Bailey was pulled from the cab and taken to the basement of a nearby building and told to sit on the floor and remain there. After the robbers left him, Bailey heard his cab being started and driven away. He got up and made his way to a police station, where he reported the robbery.
1 The first issue raised by defendant is whether his identity as the offender was proven beyond a reasonable doubt. A careful review of the victim's testimony in this case convinces us that his identification of the defendant was positive and based on more than ample opportunity to observe the offender. The victim picked up the two robbers on a well-lit main thoroughfare; he watched the two men as they crossed the six lanes of the street to reach his cab; they passed directly in front of his headlights before entering the cab; he turned on the overhead light inside the cab before they entered and turned to greet them as they stepped into the cab; the dashboard and meter box lights were on inside the cab throughout the robbery; the victim testified that during the 10-minute ride he purposely looked at them several times through the rear view mirror and over his shoulder because he was leery of them; there was no partition between the two seats of the cab to obstruct the victim's view of the defendant; the cab driver again turned on the inside overhead light and turned around to collect his fare when he reached their destination; the two offenders reached into the front seat and searched the driver's pockets, obviously permitting Bailey to see the offenders at a very close range; at the final stage in the alley, under a street light, the offender opened the front door of the cab, which caused the overhead light to come on, and pulled Bailey from the cab, allowing a face-to-face confrontation at a distance of six inches; and, finally, he was led shoulder to shoulder by the offender to the basement of the building. The only uncertainty in Bailey's identification testimony as to facial hair or otherwise related to the second offender and not to Cruz. But Bailey admitted that he did not have as much opportunity to observe the second robber as he did the defendant, who was seated on the passenger side of the cab in sight of Bailey's rear view mirror and over-the-shoulder glances. It was the defendant whom Bailey could more easily see when his pockets were searched and it was defendant who pulled Bailey from the cab. Three quotations from Bailey's testimony give ample proof of the positiveness of his identification:
"I told the judge [at a preliminary hearing] that I am positive about Mr. Cruz, but I am not positive about the other man.
Q. As you sit here today, Mr. Bailey, can you tell us whether or not the two individuals that robbed you had mustaches on September the 6th, 1972?
A. I clearly remember Mr. Cruz having a mustache. The other man, I am not that certain on.
Q. Mr. Bailey, as you sit there now, sir, is there any doubt in your mind that the gentleman you previously identified in court as the man who robbed you on September 6, 1972?
2 Defendant's second argument is that the trial court unduly restricted the cross-examination of the prosecution witnesses in violation of his right to confront his accusers. We have no argument with the proposition cited by defendant:
"Where the principal issue concerns the identification of an accused, defense counsel should be given wide latitude on cross-examination in order that the intelligence of the witness, his powers of discernment and his capacity to form a correct judgment may be submitted to the jury so it may have an opportunity for determining the value of his testimony." (People v. Morris (1964), 30 Ill.2d 406, 409, 197 N.E.2d 433.)
However, we judge that the cross-examination of the eyewitnesses in this case was sufficiently broad to comply with the above standard.
More specifically, defendant argues that he was precluded from cross-examining Bailey about his inability positively to identify the other robber, citing People v. Watkins (1974), 23 Ill. App.3d 1054, 320 N.E.2d 59. Watkins, however, is clearly distinguishable from the instant case; there the defense was totally precluded from inquiring into the identification of an accomplice against whom the charges had been nolle prossed. Here, the trial court permitted extensive cross-examination of Bailey regarding the identification of Cruz's accomplice, including questions on whether he carried a cane and what it looked like, the type and color of the clothing worn by the accomplice and whether he wore a hat and how much of his hair was covered by the hat. Defense counsel also was permitted to elicit the fact that Bailey was unsure if the accomplice had a mustache and that he was unable positively to identify the accomplice. As Watkins points out, the inability to identify an accomplice is for the trier of fact to consider because it is pertinent to the witness' ability to identify the one on trial. Here, the jury was permitted to hear not only the uncertainty on detail regarding the accomplice, but also the ultimate fact that Bailey could not positively identify him at all.
3 Defendant also argues that he was prejudiced when defense counsel was not permitted to question Bailey about some confusion on the part of Bailey when he saw Cruz's brother in the courtroom at an earlier date. We have closely examined this area of the transcript and conclude that the jury was sufficiently informed of the confusion on Bailey's part. When Bailey saw Cruz's brother, he was concerned that this was the man the State was going to prosecute. Bailey stated in the presence of the jury that although Cruz and his brother had a similar face, the brother had darker skin and he was thinner, shorter and younger than the one who ...