APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The defendant, Hiram Brown, was indicted for murder and four attempts to commit armed robbery. After being severed from his three co-defendants, Brown was tried by a jury and found guilty on all counts. The trial court sentenced him to 50-70 years for murder and to four concurrent 10-20 year terms for the four counts of attempt armed robbery. In this appeal he contends (1) that he should be discharged because he was not brought to trial within 120 days after he answered ready for trial or (2) that his conviction should be reversed because the trial court committed reversible error when it allowed the State to introduce photographs which were the product of an illegal search or (3) that the sentences he received for attempt armed robbery should be reduced because they do not comply with the applicable provisions of the Unified Code of Corrections.
• 1 The defendant's third point can be disposed of readily. Attempted armed robbery is a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 18-2; ch. 38, par. 8-4(c)(2).) The minimum sentence for a Class 2 felony cannot be more than one-third of the maximum sentence set by the court. (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(c)(3).) The State concedes that the concurrent minimum sentences imposed on the defendant for attempt armed robbery were wrong and that they should be reduced from 10 years to 6 years and 8 months.
On the night of July 14, 1971, Hiram Brown and three other men attempted to rob a lounge and restaurant on East 79th Street, Chicago. Upon entering the lounge, which was separated from the restaurant by an alcove, Brown, who was wearing a wide-brimmed, white hat trimmed in black and a green jacket, and carrying a .45-caliber automatic pistol, announced a holdup. One of his companions went through the alcove towards the restaurant. Brown ordered all the customers in the lounge to put their hands on the bar and not to look around. When the robbery was announced, Henry Dale, a deputy United States marshal who was a customer in the restaurant, shot the robber who had entered the alcove. Brown stepped into the alcove and shot Dale in the head. After telling his accomplices that there was a policeman in the restaurant, Brown ordered everyone in the barroom to lie on the floor. He and his two remaining companions then fled.
An off-duty policeman, who was parking his car across the street from the lounge, heard the shooting and saw the three men come out of the bar and disappear into a closed garage. One of the men was wearing a large white hat and carrying a gun.
Another policeman received a radio message about an officer having been shot and was told to watch for three men riding in a black and white Cadillac. The policeman and his partner saw the Cadillac and chased it. As the car slowed down, an object was thrown from its right side. A man jumped out of the same side and two others jumped from the left side and all managed to escape. The car came to a halt when it crashed into some parked cars.
Three hats were recovered from the interior of the Cadillac one of them was white, trimmed in black. A .45-caliber automatic was found 60 feet away and a green jacket was discovered in the vicinity. No fingerprints were found on the automatic, but one, discovered on the inside rear-view mirror of the car, matched one of Brown's. The discharged shells, found in the lounge, had been fired by the automatic.
The hat and the automatic were identified at the trial by the bartender, who said they were like the ones used by Brown during the robbery attempts. But Brown testified that neither they nor the green jacket belonged to him. Brown admitted that he knew all of the men accused of the crimes and that he had driven the Cadillac the afternoon of July 14, but he denied being in it that night.
On cross-examination, Brown was asked if he was wearing a wide-brimmed white hat on July 14. He replied:
"A. No I wasn't. I don't even wear hats.
Brown also denied having owned or possessed a .45-caliber automatic. The prosecutor then showed him two photographs which had been found in his home. In one, Brown was wearing a white, black-trimmed, wide-brimmed hat and was holding a .45 automatic in one hand and a .38 revolver in the other. In the second picture, Brown was holding the same guns, but was hatless. An objection was made to these pictures, but it was overruled and they were received in evidence.
The admission of these pictures into evidence, and their seizure from Brown's home, comprise his contention that such serious error was committed that his convictions must be reversed. Considerable space is devoted in both his and the State's brief in arguing whether the search of Brown's residence and the seizure of the photographs were legal. In our view, it is unnecessary to discuss the search and seizure. The court found that it was constitutionally permissible, but whether it was or not is not controlling. The State did not introduce the photographs as substantive evidence of the crimes ...