APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
HECHINGER, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendants were convicted of murder and armed robbery, and each was sentenced to terms of 60 to 100 years. On appeal, defendants present the following issues: (1) whether their right to due process of law was violated by the State's failure to comply with discovery requests; (2) whether their right to remain silent was violated by the admission of testimony regarding the exercise of their fifth amendment right; (3) whether their fifth amendment right was again violated by the admission of statements elicited during custodial interrogation after their right to remain silent had been exercised; (4) whether West's right to a fair trial was violated by the State propounding questions to his alibi witness which implied the existence of facts it could not and did not intend to prove; (5) whether their right to a fair trial was denied when hearsay evidence received for the motion to suppress was also considered as proof of guilt; (6) whether their right to a fair trial was denied where the cross-examination of the State's witnesses was improperly restricted; (7) whether the State failed to prove defendants guilty beyond a reasonable doubt; and (8) whether the sentences imposed were excessive in light of the background and age of defendants.
Defendants moved to quash the arrests, to suppress physical evidence, and to suppress in-court identifications. By agreement of the parties, the motions were heard with the State's case in chief.
On May 21, 1972, during a robbery of a tool rental store in Chicago by two armed men, an employee (David Monte) was shot and killed. His brother (Donald), also an employee, testified that he heard a gun shot and, when he turned toward the front of the store, he saw David lying on the floor with Dees standing about five feet from him with a smoking gun in his hand. The other armed man (West) then pointed a gun at Donald and ordered the opening of the cash register. At that time, Dees was only four feet from Donald, and West was about two feet away and slightly to his right. The lighting was excellent from a combination of sunlight and fluorescent lighting. Dees took $200 to $300 from the cash drawer, and the three of them stood next to the register for about one minute during which time Donald had an unobstructed view of their faces. West then told Donald to open a cabinet in an inner office. They walked to that office, where both defendants faced him as he took out his keys and opened the cabinet. Later, after getting some bank bags at their request, Donald observed both defendants face-to-face for about one minute. When they left, he called the police and, later that day, viewed 70-80 photos from which he identified defendants. He first viewed two mug books and about 10 photos on a bulletin board without making an identification. Then he was shown nine other photos, which he went through once without making identification, but on his second review of them he picked out West, and on the third perusal he identified Dees.
Donald stated that other persons were on the premises during the occurrence, but he observed only Craig James. The entire occurrence took 10 to 15 minutes and, within two hours thereafter, Donald gave descriptions of both defendants to the police. He admitted that during the preliminary hearing he had pointed to a spectator in court in an attempt to identify Dees, but stated he corrected himself immediately by actually identifying Dees.
Harrison Gray then testified that he was in the store, returning a rented tool, when he saw two persons behind the counter one on the phone and the other with his back turned to Gray. He then saw two men enter the store and one of them, later identified by him as Dees, put a gun to the temple of the person on the phone, and the other went to the rear of the store. Someone said, "Hit the floor," and he did so and then heard a gun shot and saw the person on the phone fall to the floor. On the day prior to his testimony, he was shown nine or ten photos at the State's Attorney's office but was not told that photos of defendants were among them. He identified both defendants from those photos.
At this point during the trial, the prosecutor sought to file an amended list of numerous witnesses. He then stated that of this group he wished to call Brad Rothermel, the substance of whose testimony had been incorporated in the previously tendered report of Maurice Sykes, and three FBI agents who had participated in defendants' arrests. It appears that when the assistant State's Attorneys assigned to try the case had taken it over three weeks prior, the amended list was in their file, and they were under the impression that it had been filed and that the defense had received copies of the reports of three of those named who were FBI agents. Copies of the FBI documents were given to the defendants and, over their objection, the trial court allowed the amendment but only after offering defendants whatever delay they wished for the purposes of interview, investigation or any other means of preparation they deemed necessary.
Brad Rothermel, one of those on the amended list, initially stated that he had played basketball at George Williams College with the defendants at noon on May 21, 1972, but later in his testimony said it was on May 22 (the day after the occurrence) and not on May 21. Then, on May 23, he saw their pictures in the Chicago Tribune and called the local authorities. On May 26, a police officer showed him nine photographs from which he identified both defendants.
The next witness was police officer McCabe, who testified that he spoke to Donald Monte at the store after the occurrence and later, at the police station, he showed him a group of about nine photos from which Donald identified defendants. Donald also viewed two mug books and some photos on the bulletin board before he made the identifications. McCabe didn't know whether the mug books contained a photo of West and said that Donald had looked at the group of nine photos twice before identifying one of the defendants, and a third time before pointing out the other. After the identifications, McCabe went to Dees's home to arrest him but was told by his mother that he was not home and that she had not seen him. Later that evening, McCabe obtained arrest warrants for both but was unable to locate either of them.
McCabe also testified that after the shooting he was told by Kevin Gresham, Craig James, and Frederick Wright, who were in the store during the occurrence, that Dees and West were the offenders. The day after the shooting, a Mr. Bauer identified West, and a Ms. Smith pointed out Dees as having been standing in front of their place of business which was located next to the tool rental store shortly before noon on May 21. McCabe also said that the Mobile Crime Lab obtained fingerprints, but he didn't know what prints were obtained.
The next witness was Frank B. Watts, one of those on the amended list of witnesses who was an FBI agent. He testified that he participated in the arrest of West in Forest, Mississippi, on July 10, 1972, and after West was read his rights and before any question was put to him, West stated:
"I know what you are looking for me for. I know I am being sought for the robbery of the Buzz and Brush Tool Rental Company in Chicago, Illinois. I don't want to discuss that matter because I feel I can beat the rap."
The agents asked no questions concerning the occurrence but did begin to acquire background information, such as age, name and address which West gave him and when asked if he was employed in Mississippi under his true name, West replied, "No, under Victor Hughes."
John B. Rucker, Jr., another FBI agent on the amended list of witnesses, testified that he also participated in the arrest of West in Mississippi and, after he was given his rights and before any question was asked, West stated:
"I know you got me. You got me in connection with the robbery of the Buzz and Brush Tool Rental Company in Chicago, Illinois. I don't have any desire to talk about it. I don't want to discuss the matter ...