APPEAL from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. NASH, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The defendants were tried before a jury which found them guilty of armed robbery and they were each sentenced to a term of 5 to 15 years' imprisonment. On appeal, they contend (1) that defendant Erickson's conviction violates the constitutional prohibition against double jeopardy; (2) that the defendants were not proven guilty beyond a reasonable doubt; (3) that the trial court erred in admitting business records without a proper foundation; (4) that the trial court erroneously instructed the jury; (5) that certain closing remarks of the prosecutor denied the defendants a fair and impartial trial; and (6) that, in sentencing the defendants, the trial court considered improper evidence of prior acts of misconduct. After a thorough review of the record, we conclude that none of these contentions is well founded and therefore affirm the judgments.
The defendants, Gary Grignon and David Erickson, were indicted on February 7, 1973, for the offense of armed robbery. The indictment alleged that on December 26, 1972, the defendants, by threatening the use of force or by the use of force and while armed with a pistol, took money from the person or presence of John A. Wilson. Ill. Rev. Stat. 1971, ch. 38, par. 18-2.
On October 15, 1973, a mistrial was declared in the defendants' joint trial after the following testimony was heard by the jury.
"ASSISTANT STATE'S ATTORNEY: Q. Now, Mr. Pennewell, what conversation, if any, did you have that you recall with Mr. Erickson?
A. Do you want this in my own words?
Q. The best you can recall.
A. With Mr. Erickson or Mr. Grignon or both?
Q. Both. Well, you have to tell who said what.
MR. EISENBERG: I object, Your Honor, unless he testifies it was in the presence of Mr. Erickson.
THE COURT: I think that has been established. Didn't you already say both of these parties were present?
THE WITNESS: Yes, sir, I did.
MR. EISENBERG: Okay. Thank you, Your Honor.
A. Well, we was talking about one thing and another and I was asking Mr. Grignon what he was doing back from California. I understood he was on probation or parole.
MR. BEU: Excuse me, Your Honor. May I be heard in chambers?"
Immediately thereafter at the in camera discussion, counsel for defendant Grignon asked for a mistrial, which was granted by the trial court. Counsel for defendant Erickson presented alternative motions that either the charge be dismissed against his client on grounds of double jeopardy or that the trial of his client continue. In response, the State asked that the court declare a mistrial as to defendant Erickson. The court, stating that some members of the jury might believe that the witness' statement referred to Erickson, denied defense counsel's motions and declared a mistrial as to Erickson as well.
At the second trial, which commenced on November 19, 1973, the State called Roger Reay, central office foreman for the Wisconsin Telephone Company at Beloit. Mr. Reay testified that he was responsible for the maintenance and custody of all telephone trace records, and he explained how a telephone trace is performed. The witness testified that on December 26, 1972, a telephone trace was performed at the request of South Beloit police officers, and he produced the records which were prepared in connection with that trace. He further testified that these records were made in the usual and ordinary course of business and were maintained by himself. Then, Mr. Reay testified that the trace records indicated that a call had been made to the Owens Oil Station (the robbery site) from a public phone booth located near the Owens station. The witness further related the time and manner of the preparation of the particular trace records involved in this case, and testified that he supervised the individual who made this particular trace. At the conclusion of Mr. Reay's testimony, the trace records were admitted into evidence without objection by defense counsel.
Next, John Wilson, the victim of the armed robbery and the assistant manager of the Owens Oil Station, which was the scene of the offense, was called as a witness on behalf of the State. He testified that on December 26, 1972, at approximately 9:30 p.m., he was working alone at the Owens Oil Station and that he was seated at a desk inside the station. According to the victim's testimony, he saw a person walk from the east side of the station toward the door, and he left his desk proceeding to the door. He testified that the person, who he had not known previously, called him by his nickname. He stated that the person was not masked and that the station was well lighted with fluorescent lighting. This person was identified in court by the victim as defendant Grignon. According to John Wilson's testimony, defendant Grignon then produced a revolver, told him to "get in the drawer" and get the money. While the robbery was occurring, the telephone in the station rang, and Grignon ordered him to answer it. The victim testified that upon answering the telephone, there was no response from the person who had placed the call to the Owens station. He further described the telephone cord as a wire cable, which could not be cut easily.
The witness stated that he gave Grignon $656 and that the defendant then left the station. The victim testified that a small revolver was used by Grignon, and upon being shown People's Exhibit No. 4, he stated that it looked like the gun used in the robbery.
Immediately after Grignon left the Owens Oil Station, John Wilson tried to call the police, but the telephone was dead. He then proceeded to a home located next to the Owens station from where he called the police.
In response to further questioning, the witness testified that he had been acquainted with David Erickson for 8 or 9 years, but had not seen him for a year until several days prior to the robbery, when Erickson entered the Owens Station. According to the witness' testimony, on that occasion, Erickson purchased cigarettes, talked to him for a minute, and left the station in a car in which another person had been waiting. John Wilson was unable to identify the person who had been waiting outside the station for Erickson on that occasion.
On cross-examination, John Wilson testified that after the robbery, the police had shown him two photographs and that he immediately identified Grignon from one of the photographs. He stated that he was not very familiar with handguns. In response to defense counsel's inquiries, the victim testified that he did not know why his brother, Robert Wilson, had indicated to police officers that he feared that either he or John Wilson might be implicated in the robbery.
The third witness called on behalf of the State was Charles Phillips of the South Beloit Police Department who testified that when he arrived at the Owens Oil Station he noticed that the telephone was off the hook, and was informed by John Wilson that he had received a call during the robbery and that the line was dead. Officer Phillips then ordered a telephone trace and proceeded to the location of the public phone that had the "line open" with the Owens phone. This public phone booth was seven-tenths of a mile from the Owens station. Officer Phillips also testified that the victim was shown two photographs and identified Grignon as the robber.
Robert Wilson, the brother of the victim, testified that he had been acquainted with David Erickson for 13 or 14 years. He stated that at approximately 4 a.m. on December 26, 1972, he received a telephone call from defendant Erickson, and that during their telephone conversation, Erickson said that he had recently returned from California. Later, at 4:30 or 5 p.m., Robert Wilson again received a telephone call from Erickson, who inquired whether Robert Wilson knew if a certain store had much cash. The witness testified that he told Erickson that he did not know if that store had cash and that he then jokingly suggested McDonald's as a source of cash. To this suggestion, Erickson said, "No, they're too busy," and asked Wilson about the Owens Oil Station. The witness testified that he told Erickson not to rob Owens because his brother was employed there. According to the witness, Erickson responded, "Okay, don't worry about it." Robert Wilson further testified that after he had heard that the Owens Station had been robbed, he gave the police a statement which related the telephone conversations with Erickson.
On cross-examination, Robert Wilson stated that prior to the telephone call on December 26, 1972, he had not heard from Erickson since 1966. The witness admitted that in 1967 he had been convicted of robbery. He also stated that prior to the time he learned of the robbery of the Owens Station, he had not discussed the telephone call he received from Erickson with anyone. In response to counsel's inquiries, the witness asserted that he did not recall indicating to the police that he feared that either he or his brother might be implicated in the robbery.
The next witness, Rebecca Scott, testified that she had met both of the defendants on December 25, 1972, while they were at the home of her boyfriend, Richard Pennewell, where she also resided. Ms. Scott testified that she and Richard Pennewell own a Colt detective special .38-caliber pistol, which she identified as People's Exhibit No. 4. During the course of their visit at the Pennewell home, the defendants asked if they could see the gun, and Mr. Pennewell took it from a dresser drawer in the bedroom, and showed it to them. According to the witness' testimony, the gun was loaded with five shells at that time. After the defendants looked over the gun, it was returned to its place in the dresser drawer.
During the afternoon on the following day, December 26, 1972, defendant Grignon returned to the Pennewell home and asked if he could use their telephone. When he was directed to the telephone located in the kitchen, Grignon stated that he would rather use the phone located in the bedroom. While he was talking on the bedroom telephone, no one else was present in that room. However, when Ms. Scott looked into the bedroom from where she sat in the living room, she observed Grignon putting some object into his coat or pants. Immediately thereafter, Grignon left the ...