APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT C. GILL, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant herein was tried by a jury for armed robbery, convicted and sentenced to 6-10 years in the penitentiary by the court.
The defendant appeals and raises the one contention that he was deprived of a fair trial by the prosecutor's closing and rebuttal argument to the jury wherein the prosecutor allegedly expressed his personal opinion of the defendant's guilt and argued matters not in evidence.
In the early evening of the 19th of August, 1974, while it was still daylight, one Eric Friis was working at an oil station in Rockford. A man, subsequently identified by Friis as the defendant, walked into the station with a green bath towel covering his left hand. When the defendant was about 10 feet from Friis an automobile drove up and parked next to one of the pumps. The defendant told Friis that he was with the people in the car and the driver of the car stated to Friis that he wished $3 worth of gas. As Friis was filling the gas tank of the car the defendant stuck his head into the back window of the car and spoke to one of the occupants. The defendant then walked to the rear of the car, pulled the towel off his hand, displayed a gun and told Friis to give him all the money. Friis could see the bullets in the chamber and was looking at the defendant's face as the defendant was not wearing any disguise. Friis gave the defendant $76. The driver of the automobile paid the $3 for the gas and Friis then called the police. Friis also saw the defendant watching him from behind a sign 15 yards away prior to his disappearance. Friis identified the defendant from a group of pictures and again identified him at the preliminary hearing and at the trial.
The defendant was arrested on September 23, 1974, and denied that he had committed the crime. When questioned by the police he stated he had read about the armed robbery in the newspaper and that was how he was able to say that he was with "his woman" on the night in question. He refused to disclose the identity of the woman nor did he advise the police that he had been at an alleged party on the night in question.
The defendant testified at the trial and presented an alibi defense wherein he, Ernestine Hill, Thomas Johnson and Rosalyn Harris testified that the defendant was at Ernestine Hill's house on the day of August 19, that he left the Hill house to attend a party at Bernice Willis' house where he remained until 10:30-11 at night. Defendant called as a witness one Clidell Stevenson who testified that he was the driver of the car in the station on the night in question, that he knew the defendant and that the defendant was not the robber.
In closing arguments both defense counsel and the prosecutor argued respectively that their witnesses were the more credible and were to be more believed than the other side. In his closing argument the State's Attorney stated:
"MR. KOSKI: * * * How do you stop it, how do you stop this lawlessness that is ravaging our city? And I'm talking about armed robberies. There are all kinds of lawlessness, but I'm talking about armed robberies. Just as this jury, you people, and the other juries hearing other cases like this, you must be willing to do your duty. Do you believe armed robbery victims who come in here and tell you on the stand under oath, ladies and gentlemen, this man robbed me at gun point, you have to be willing to believe that, unless you think the victim is lying or mistaken. And you have to be willing to convict people based on that evidence, and no one is ever going to get convicted of armed robbery
MR. SMITH: (Interposing) Your Honor, I object to that type argument.
MR. KOSKI: There is no reason to believe in this case that Eric Friis is lying or mistaken, no reason.
Ladies and gentlemen, I think if you reject this evidence, if you go into the jury room and you say Eric Friis is wrong, no question about it, he's wrong, there is a mistake, or he's lying, or whatever he's saying, and that this type of evidence isn't sufficient to convict a man of armed robbery, there's going to be not just you, but all the other jurors I think there's going to be open season
THE COURT: (Interposing) Counsel, I have sustained an objection to that type argument. I would like ...