APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
S. PORTER, Judge, presiding.
MR. PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, Morris Bell (also known as Benny L. Weathers), was indicted for the offenses of armed robbery, aggravated battery, and attempted murder. Following a jury trial, he was found guilty of armed robbery and aggravated battery. A mistrial was declared as to the attempted murder charge after the jury was unable to reach a verdict. The trial court ruled that the aggravated battery merged into the armed robbery. Defendant was sentenced to serve 10 to 30 years in the penitentiary for armed robbery.
Defendant raises two issues: (1) he was not proved guilty beyond a reasonable doubt, and (2) the trial court abused its discretion and denied defendant a fair trial in answering a question propounded by the jury during deliberations by reading the relevant portion of the trial transcript to them. We affirm. Four witnesses testified. The pertinent testimony follows.
Nelson Johnson testified for the State. On October 2, 1973, he and his wife, Dacy Mae Johnson, owned a small grocery store at 1359 South Keeler Avenue in Chicago. At approximately 8 p.m. defendant entered the store; he walked past Nelson Johnson who was at the front of the store and went toward the meat counter in the back, about 30 feet away. Mrs. Johnson, the butcher, Cecil Walker, and a friend, Johnnie Berry, were at the meat counter. While defendant was buying some meat a second man came in with a shotgun and announced a robbery. The second man then told defendant to "stick them up in the back," whereupon defendant put a pistol to the head of the butcher and took him and Berry to the front of the store, forced them to lie down and forced Mrs. Johnson to kneel in the middle of the store. He then demanded money from Mr. Johnson who replied that all he had was in the cash register. Defendant refused to believe him and told his accomplice to shoot Mrs. Johnson. Mr. Johnson then gave defendant an additional $200 he had secreted in a bag in his sock. Defendant then demanded Mr. Johnson's gun, and when told that he had none he tried to frisk Mr. Johnson, then pistol-whipped him across the head. He again demanded Mr. Johnson's gun and after striking him, fired a shot at him. The bullet pierced Mr. Johnson's clothing but did not strike his person. The accomplice with the shotgun informed defendant that a woman outside the store was screaming, and both offenders left. The police arrived and took Mr. Johnson to the hospital where he received stitches and medication. Later, Investigator Robert Cozzi showed him 25 or 30 photographs which he examined while alone and picked out defendant's picture as the person who beat him.
On cross-examination Mr. Johnson testified that Walker, Berry and Mrs. Johnson were at the meat counter when defendant entered. He recalled speaking briefly with the police before going to the hospital but could not remember what he said, or if he described the offenders. Several days later some detectives came to the store and spoke with him but again he could not recall giving a description of the offenders. He had seen the man he later identified as defendant in the neighborhood two or three times prior to the robbery. However, he did not know his name at that time and could not recall whether he told police that he had seen him before, nor did he recall whether defendant had ever previously been in his store. On November 29, 1973, Mr. Johnson called the police department and gave Investigator Cozzi the name of Benny Weathers. When Investigator Cozzi later arrived with a group of photographs Mr. Johnson picked defendant's picture as that of his assailant.
Dacy Mae Johnson also testified for the State. On October 2, 1973, at approximately 8 p.m., a young man entered their grocery store and went to the meat counter in the rear. She identified defendant as that man. While Walker, the butcher, was slicing meat for him defendant came around the counter and put a pistol to Mr. Walker's head. He then forced him and another man to lie on the floor near the front of the store. Defendant returned to the meat counter, removed some items from Mrs. Johnson's pocket and asked her for money. When she told him she had no money he made her lie on the floor, then went to the front and asked Mr. Johnson for money. Defendant took the money from the cash register and asked Mr. Johnson for his gun. Mrs. Johnson saw him strike her husband over the head two or three times with his gun. When defendant asked for more money Mrs. Johnson told her husband to give him all of it, and he did, taking the remainder out of his sock. After defendant hit Mr. Johnson a shot was fired which went through Mr. Johnson's clothing. A woman outside the store started to scream and the offenders fled.
Cross-examination of Mrs. Johnson elicited the following testimony. Berry did not enter the store until the robbery was in progress. Before defendant made Mrs. Johnson lie down he brought her out from behind the counter to the end of a grocery shelf. When the police arrived she talked with them but did not recall giving them a description of the offenders. She remembered giving a description while at the hospital with her husband. She could not recall details of her description of the man with the handgun, other than that he was a male Negro, had a "natural" hair style and was wearing dark clothes. She did not remember mentioning the weight of the man later identified as defendant.
On redirect examination Mrs. Johnson testified that on November 29, 1973, Investigator Cozzi came to the store with some pictures. She viewed them separately from her husband and identified defendant's picture as the offender with the handgun. On re-cross-examination she was unable to establish how many pictures Investigator Cozzi showed her except that it "really was substantial." She saw "a couple" or "a few" pictures of defendant, not just one. Finally, further examination established that the pictures she saw had both a front and profile view of each individual; the multiple photographs of defendant were on separate pieces of paper.
Investigator Cozzi was the third witness called by the State. On November 29, 1973, he talked with Mr. Johnson. Pursuant to the conversation he obtained a photograph of a man named Benny Weathers and placed it in a group of approximately 20 photographs of other individuals, then went to the store where the Johnsons separately viewed the photographs. Each identified defendant as the offender who beat Mr. Johnson. Each picture had both a front and side view of an individual. On cross-examination Investigator Cozzi testified that the group contained only one photograph of defendant with the two views; there were not two or three separate photographs of defendant.
Officer Ronald Langbauer was called on behalf of defendant. On October 2, 1973, he and his partner responded to a "robbery in progress" call at the Johnsons' store at about 8:15 p.m. He spoke with Mr. and Mrs. Johnson, Mr. Walker and Mr. Bailey [sic] as a group. He obtained from the Johnsons a description of the man with the handgun as dark complexioned, weighing approximately 160 pounds, and wearing a black waist-length jacket. Neither of them described his hair style. Mr. Johnson did not tell Officer Langbauer that he had previously seen defendant in the neighborhood but described his assailant as an unknown male Negro.
On cross-examination Officer Langbauer testified that he talked with Mr. Johnson for about two minutes and with the entire group for about three minutes. During the interviews Mr. Johnson was bleeding and was "not alert" in responding to questions. The purpose of the interviews was to obtain a description for a "flash message" to other police cars in the area.
During deliberations the jury sent a note to the judge inquiring in part "When Mr. Johnson called police did he give them the name of Benny Weathers?" Over defense counsel's objection the court reconvened the jury and read the following testimony in answer to their question.
"The question is being put to Mr. Johnson and it reads as follows:
`Now in November, late November of 1973 did you call ...