APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Patrick G. Summers was charged by indictment with three counts of armed robbery and one count of burglary. A jury in the circuit court of Cook County found him guilty of armed robbery and burglary and he was sentenced to imprisonment in the penitentiary for 5 to 15 years. He appeals.
The defendant contends that his conviction must be reversed because (1) he was not proved guilty beyond a reasonable doubt where the identification testimony of the victims of the crimes was contradictory and uncertain and (2) he was denied a fair trial where the prosecutor impermissibly commented on defendant's failure to testify at the trial. We affirm.
Randal Zuley, Arthur Czipo and Angelo Nazos were playing poker in the kitchen of a townhouse located in Schiller Park, Illinois, on August 25, 1973, at approximately 2 a.m. Diane Iannella, the owner of the residence, had been present until midnight, when she had gone to bed on the second floor of the unit. The men were seated at a table illuminated by a chandelier containing six light bulbs. They were not drinking and there were no alcoholic beverages in the house. The men had approximately $1100 in the aggregate on the table.
Two men armed with guns entered the kitchen through the door to the outside. At trial, Zuley and Nazos identified the larger of the two men as the defendant Patrick Summers. The intruders ordered the men at the table to place any other money they possessed, their watches and their jewelry on the table, to take off their clothes and to lie face down on the floor. The large man asked if there was anyone else present in the townhouse and was told that Iannella was upstairs. The large man proceeded to the bedroom and forced Iannella at gunpoint to descend to the kitchen with the others, where she too was ordered to lie face down on the floor. Iannella identified Patrick Summers at trial as the man who had brought her down to the kitchen during the robbery.
The large man asked and was told where the telephones in the townhouse were located and he proceeded to rip them out of the walls, while the small man continued to cover the victims with his gun. The intruders asked where "all the others" were, apparently expecting that there would be more card players and were told that there were no others expected. The robbers told the victims not to call the police because they had friends who would "take care" of the victims; they then left the townhouse with the money, jewelry, watches and a payroll check and identification which they had removed from Iannella's purse in the kitchen. They had been present for approximately 45 minutes.
Two of the victims shortly thereafter went to a neighbor and called the police. The police took a statement of the facts of the crime from the victims, including descriptions of the two robbers. However, the police did not take separate statements from each victim, but rather compiled a "composite" report, including a single report of the descriptions of the robbers.
The police investigation of the robbery proceeded for eight months until on April 26, 1974, Zuley and Iannella were asked to view several photographs at the Niles police station. Each, outside the presence of the other, picked defendant Patrick Summers' photograph out of a group of six photographs. The police went to the home of Patrick Summers and requested that he accompany them to the police station and, after stating that he wanted to call his attorney first, he voluntarily went with the police. At the Niles police station, he participated in a lineup with five other men meeting the general description given by the victims. Both Zuley and Iannella independently identified Patrick Summers in the lineup as the larger of the two men who had robbed them.
At the trial, which began on September 22, 1975, Zuley, Nazos and Iannella pointed out Patrick Summers as one of the men who had robbed them 25 months before. Arthur Czipo, while corroborating the others' testimony as to the fact of the robbery and the general description of the robbers, could not "honestly say" that Patrick Summers was one of them.
Counsel for the defendant, in his opening statement, had indicated that Patrick Summers was a victim of misidentification and further stated:
"Patrick Summers will testify and so will several other people on his behalf who will tell you that he wasn't there at the time. He was somewhere else. And he was out of town on a weekend with friends."
However, at the close of the prosecution's case, defense counsel, in chambers and off the record apparently, notified the judge and the prosecutors that defendant would rest without presenting any witnesses or testifying on his own behalf. While there has been no stipulated report of proceedings nor a bystander's report of this conference presented on appeal, it appears from the judge's later remarks that he admonished the prosecutors not to comment on defendant's opening statement during the closing arguments.
When arguments began, the prosecutor made a remark which did refer to defense counsel's opening statement, but no objection was made. Later, the prosecutor stated:
"* * * Everything that you heard from the witness stand as to how this crime occurred on that day has been ...