APPEAL from the Circuit Court of Cook County; the Hon. JAMES
C. MURRAY, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Ronald Brown, William McGowan, and Bruce Fann were charged by indictment with burglary (Ill. Rev. Stat. 1969, ch. 38, par. 19-1 in that they knowingly and without authority entered Bluestein's Clothing Company, Inc., store with the intent to commit theft. Fann's trial was severed from that of Brown and McGowan. The latter two were tried jointly before a jury which found Brown guilty and McGowan not guilty.
On appeal, Brown contends the evidence did not prove him guilty beyond a reasonable doubt. He also urges that errors at trial, singly or cumulatively, require reversal and remandment for a new trial. These alleged errors are: (1) the trial court failed to permit defense counsel to impeach State witnesses by establishing omissions in their prior statements of facts testified to at trial; (2) the prosecutor impliedly advised the jury that Brown had made an admission where a preliminary motion to suppress had been granted; (3) the prosecutor's closing argument was improper and prejudicial; and (4) the trial court accidentally instructed the jury that a defendant is presumed guilty but immediately corrected the mistake and properly instructed the jury. Finally Brown urges the cause should be remanded for resentencing because (1) the trial court did not give Brown the election of being sentenced under the provisions in effect in 1971 or the provisions of the new Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.); and (2) in determining sentence, the trial court improperly considered some of Brown's prior arrests for offenses of which he subsequently had been discharged.
Since it is urged that the evidence is insufficient to convict defendant beyond a reasonable doubt, it is necessary to summarize the evidence adduced at trial against Brown.
Officer Nick testified that on May 2, 1971, at 1:30 a.m., he and his partner Officer Franzo responded to an American District Telegraph alarm by proceeding to 3945 W. North Avenue, the location of Bluestein's Clothing Store. He ascertained that the doors and windows of the store were secure. Nick then summoned assistance while Franzo climbed a metal fire escape ladder to the first level of the roof on the Bluestein store. As additional police arrived, Nick proceeded to the roof level where Franzo was stationed. They heard noises on the other side of a seven- to eight-foot high picket fence with a locked gate. Franzo and Nick forced open this gate whereupon Nick saw three to four white males climbing a ladder to the second level of the Bluestein roof. Nick observed a hole in the first level roof and saw about 100 men's suits stacked next to the hole. Franzo pursued the offenders. Nick stationed himself alongside the hole in the roof. Franzo returned with Fann in handcuffs. The roof was dark and Nick did not use his flashlight. The fleeing figures were facing away from Nick when he observed them. On cross-examination, he admitted that he only saw three offenders.
Officer Nick's partner, Officer Franzo, corroborated Nick's testimony as to how they came on the scene and as to their initial actions. Franzo stated that before breaking open the gate in the picket fence, he observed three to four men crouching over a pile of clothing by looking through the cracks in the fence. Upon breaking through the gate, he pursued the offenders, chased them across the roof and followed them up a ladder to the second level of the roof. Thereupon, he drew his gun. The offenders were 25 to 30 feet ahead of him. The closest to him was 5'3", wore dark pants, a short brown jacket and weighed 130 pounds. The second wore dark trousers, a light shirt and a black leather jacket. The third wore dark trousers, wash pants, a shorter black leather jacket and a blue shirt with a white stripe around the neck. None of the offenders wore hats. He chased the offenders across the roof to the roof of an adjoining Woolworth building. A door to a stairwell was unlocked. The offenders entered the building and went down the stairs. Franzo was still in pursuit. Then, they kicked through a plate glass door. The offenders went across Pulaski Avenue and into an alley. Franzo was still trailing the offenders by 30 to 40 feet. The offenders were still dressed as described except that their clothing was dirty. The chase proceeded through another alley. Franzo fired a warning shot. Fann fell and was taken into custody. Franzo returned to the Bluestein store. Shortly thereafter, Brown was brought to the store in a police squad car by two officers who had joined Franzo in the chase. Franzo made an on-the-scene identification of Brown. Franzo also identified Brown and McGowan in court as two of the offenders. The only difference in Brown's appearance was that he did not have a mustache at the time of the alleged offense while he did have a mustache at the time of the trial. Also, his hair was shorter at the time of the alleged offense. Franzo testified that the alleys were well lit and that he had no difficulty in identifying the offenders. On cross-examination, Franzo admitted that he did not know if Brown's clothing was taken from him or whether glass fragments were recovered from Brown's clothing. He never had a full frontal view of any of the offenders. However, Franzo was able to see their faces while chasing them because, at various times, the offenders looked back over their shoulders.
Officer Bart was a plainclothesman on duty at the time and place of the incident in question. Upon arriving at the scene, he positioned himself on the corner of North and Pulaski so as to be able to see east and south of the clothing store. He heard shouting from the roof of the store. Thereafter, he saw four men, one a police officer, chasing the other three from the Woolworth building. Bart gave descriptions of the offenders' clothing which matched that given by Franzo. He identified Brown in court as one of the offenders stating that he was the offender who wore a blue shirt with a white stripe.
Officer Fritz testified that he was Bart's partner at the time and date in question. He heard breaking glass and saw three white male subjects running through the doorway to the Woolworth building. Fritz identified Brown and McGowan as two of the individuals he saw running through the door. Seeing that the subjects were being pursued by Officer Franzo, Fritz also gave chase. He heard Franzo's shot, saw Fann fall, saw Franzo stop to arrest Fann and proceeded to run after the other two. Eventually he caught up to and arrested Brown. On cross-examination, Fritz admitted that he did not recall how the subjects got over, under, or around the horizontal bars across the glass door. It took four to five minutes from the time he saw the offenders to the time he tackled and subdued Brown. Brown wore a pullover shirt with a white stripe. He admitted that at one point, he lost sight of the individuals he was pursuing.
Sol Bluestein, the owner of the clothing store, testified that he had closed his store at 6 p.m. the previous evening and that he had not given anyone permission to be in the store. He testified that the suits in question were from his store.
The remainder of the testimony in the State's case-in-chief pertained to the other defendant and need not be repeated here. It should be noted, however, that McGowan was arrested in the vicinity about an hour after the chase ended. The defense rested without calling any witnesses on behalf of Brown.
Brown's initial contention on this appeal is that he was not proved guilty beyond a reasonable doubt. Specifically, he contends that he was insufficiently identified as one of the individuals who committed the burglary because the identification evidence adduced at trial was based upon inadequate observation by the state's witnesses. In addition, he argues that co-defendant McGowan's acquittal of the same offense created a reasonable doubt of his guilt.
• 1 The state has the burden of proving beyond a reasonable doubt that an accused is the person who committed the crime charged. This burden may be met by a positive identification by one witness who had adequate opportunity for observation. (People v. Clark (1972), 52 Ill.2d 374, 386-87, 288 N.E.2d 363.) However, an identification need not be positive to support a conviction, its weight being a question for the trier of fact to determine in connection with the other circumstances of the case. (People v. Oswald (1963), 26 Ill.2d 567, 570-71, 187 N.E.2d 685; People v. Ellis (1st Dist. 1976), 41 Ill. App.3d 377, 390, 354 N.E.2d 369.) When an identification is not positive, there must be some fact or circumstance to aid the trier of fact in determining the weight to be given the identification testimony. People v. Washington (1st Dist. 1970), 121 Ill. App.2d 174, 179, 257 N.E.2d 190.
In the case at bar, Officers Nick and Franzo observed a hole in the first level of the Bluestein store and saw about 100 men's suits stacked next to the hole. They saw three or four men climbing a ladder to the second level of the roof. Franzo chased the offenders up the ladder, across the roof to the roof of the adjoining Woolworth building, down a stairway, through a plate glass door, and out onto one alley and through another alley. The offenders stayed approximately 30 feet ahead of Franzo throughout the chase. One offender, later identified as Brown, wore dark trousers, wash pants, a short black leather jacket and a blue shirt with a white stripe across the neck. Franzo was able to identify Brown and the other offenders because the alleys were well lit and the offenders periodically looked back over their shoulders. Officer Bart saw three men followed by a police officer emerge from the Woolworth building and run down an alley. He identified Brown as the man wearing the blue shirt with a white stripe. Officer Fritz, Bart's partner, also saw the three offenders leave the Woolworth building. He joined the chase and, although he lost sight of the offenders for a brief period of time, eventually tackled and subdued Brown. Brown was described as wearing a pullover shirt with a white stripe.
• 2 Brown argues Franzo, the only occurrence witness to make an identification, did not have an adequate opportunity to observe because the offenders were always running, with their backs to Franzo, at a distance of approximately 30 feet ahead on a dark night. We disagree. The record does not disclose that Franzo ever lost sight of the offenders during the course of the chase. The alleys were well lit. Brown and the other offenders gave Franzo opportunity for identification by ...