APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Defendants William De Leon and Gilberto Villegas were charged by indictment with the offense of armed robbery. After a bench trial, both were found guilty of robbery and sentenced to 180 days of periodic imprisonment as a condition of five years' probation. Three issues are presented on appeal: (1) whether it was error for the trial judge to deny defendants' motion to call as their witness a police officer not listed on their witness list; (2) whether defendants were proven guilty of robbery beyond a reasonable doubt; and (3) whether the trial court improperly considered defendants' silence as being indicative of guilt.
Samuel Clemons and his brother Herman testified to substantially similar acts: On the evening of November 18, 1973, they were at the corner of North Avenue and Leavitt Street with William Fletcher when defendants and another approached them. Defendant De Leon, who appeared intoxicated, told them, "I want some change from you, you, and you." When De Leon was told that they had no change, he asked whether they belonged to a gang and if they wanted to "rumble." Samuel Clemons replied that they didn't belong to a gang or want to fight. A second, larger group began to approach, and after making several more demands for money, De Leon attempted to punch Samuel Clemons. After moving out of the way, Samuel struck De Leon, and both brothers ran from the scene.
William Fletcher testified that after the Clemonses had run away, he struggled with members of the group and was thrown to the ground. When he got up, he saw De Leon holding a knife. De Leon told defendant Villegas to "look in his pockets." Villegas reached into Fletcher's pocket and removed 55¢ and two door keys. The police arrived within moments, and the group scattered in various directions. As De Leon was attempting to flee, Fletcher pushed him into the street. The police then arrested De Leon after Fletcher told them that he had been robbed.
Officer James Maurer of the Chicago Police testified that he was on patrol, driving an unmarked car, on the evening of November 18, 1973. With him were his partner, Officer Walter Murawski, and Sergeant Nick Miljanovich. They stopped for a red light at North and Leavitt and observed a group of eight to ten Puerto Rican men standing around one black male. Officer Maurer testified that one of the men was "standing approximately two feet from the victim, and he had an object in his right hand, I believe, which was approximately four inches long, shiny resembled a knife blade." Another, identified as Villegas, had his hand in Fletcher's pocket and an arm around his body. As he was leaving the car, he heard the victim yell that he had been robbed. Villegas fled, running west on North Avenue. Officer Maurer gave chase and apprehended Villegas after firing two warning shots.
On cross-examination Officer Maurer stated that he did not complete or sign the arrest reports for either defendant although each bore his name and signature. He thought that Officer Murawski may have completed the reports since his name and signature also appeared.
Sergeant Miljanovich testified that he saw Fletcher grab for the man who had pointed an object at him, delaying him long enough for the sergeant to take him into custody. Sergeant Miljanovich identified the man as defendant De Leon. On cross-examination he stated that a knife was never found, and that 55¢ was recovered after a search of De Leon at the police station. The State then rested.
Terry Ray, a law student, testified for defendants that he worked for defense counsel and had interviewed William Fletcher. During the interview Fletcher gave three different answers in response to questions concerning who was holding a knife.
Defense counsel then requested that Officer Murawski be called as a witness since he apparently was the one who wrote the arrest reports. The State objected on the grounds that his name was not on the defense list of witnesses although his name did appear on the State's list. The court sustained the State's objection but allowed an offer of proof by the defense that, if called, Officer Murawski would testify that he completed arrest reports for each defendant stating that one of the offenders who was not arrested had displayed a knife and had fled.
The next witness was defendant Villegas who gave a different account of what occurred. He testified that he had been employed part time as a youth worker and had been playing basketball at a recreation center the evening of his arrest. Defendant De Leon was drinking at the center and had become intoxicated, and Villegas decided to take him home. They were walking on Leavitt Street when Fletcher and the Clemons brothers approached. Samuel Clemons asked them if they had any money. After Villegas told him that he didn't and resisted a search, Samuel Clemons attempted to punch him, and a fight ensued. The Clemonses fought with Villegas while De Leon struggled with Fletcher. Several friends of defendants saw what was happening and came to help, at which point the Clemons brothers ran. Fletcher attempted to flee also, but De Leon continued to struggle with him. Villegas attempted to aid De Leon since Fletcher was overpowering him, and at that point the police arrived. Villegas stated that he ran from the police because they had their guns drawn, and that the situation could look as though he and De Leon were robbing Fletcher.
The testimony of defendant De Leon and his brother, Julio, who admitted to being present at the scene of the offense, corroborated Villegas' version of what occurred. On cross-examination defendant De Leon admitted that he did not tell the police immediately upon being taken into custody that he had been robbed.
The trial court, in a lengthy review of the evidence and after concluding that defendants had failed in their credibility as witnesses, remarked:
"I would like to add another thing: we all know when you are under arrest that you don't have to say anything, the Fifth Amendment. Again, this is that but while this commotion was going on, it's just incredible to me that Mr. De Leon or Mr. Villegas didn't say these fellows are holding us up to ...