APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNCK, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Marvin Duncan was charged by one indictment with the armed robbery of Everlean Hoskins and charged in another indictment with the armed robbery of Pringle Davis. He was found guilty of both charges after a bench trial in the circuit court of Cook County and was sentenced to imprisonment for from 4 to 10 years.
Defendant appeals from his convictions, contending that the trial court erroneously considered inadmissible evidence, the effect of which was so prejudicial as to deny him a fair trial where (1) testimony by police officers and another witness concerning out-of-court identifications of the defendant was hearsay and (2) a police bulletin containing defendant's photograph among photographs of purported gang members, admitted into evidence, was evidence of other police contact and not probative of his guilt of the crimes charged.
The robberies of both victims took place at about 8 p.m. on July 16, 1974, in a tavern on the far south side of the City of Chicago. Everlean Hoskins testified at trial that she was tending bar in the tavern that evening when defendant Marvin Duncan and another man entered the premises and purchased beers. They drank sitting at the bar. After about ten minutes, Duncan arose from his seat, went to the front door and closed it and the other man produced a gun and announced the robbery. She testified that the defendant went through the pockets of the customers, while the other man held a gun at her head and emptied the cash register of money. Ms. Hoskins testified that the lighting was good and that she had an opportunity to view the men for 15 minutes from the time they entered the tavern until they left. She pointed out Marvin Duncan at trial as one of the robbers.
Henry Warren testified that he was present in the tavern at the time of the robbery. When he heard someone announce the "stick up," he looked up and observed a man holding a gun at the head of Everlean Hoskins and another man taking money from the patrons. Warren pointed out defendant Duncan at trial as the man who took money from him. He also saw Duncan take money from Pringle Davis.
The police arrived within five to ten minutes after being called by Ms. Hoskins immediately after the robbers left. Both Ms. Hoskins and Warren testified that they selected Marvin Duncan's photograph out of a stack of 30 loose photographs provided by the police, independently of each other. Each thereafter selected defendant's photograph out of a police newsletter or bulletin containing photographs of 32 individuals.
Warren testified that he picked defendant out of a lineup conducted at a police station four days later.
The investigating police officers testified to the photographic identifications of defendant by Ms. Hoskins and Warren. They also testified to declarations made by Pringle Davis in their presence to the effect that he identified the defendant's photograph from the stack of loose photographs and from the police bulletin and that he identified the defendant out of the lineup conducted four days after the robbery. Warren had also testified that Pringle Davis had made a photographic identification of defendant. No objection was made by defense counsel to any of these out-of-court declarations reported by the police and Warren.
Pringle Davis was not called to testify; the prosecutor asserted that he was, to the best of their knowledge after a diligent search, out of the State and unable to be contacted. The court denied the prosecutor's motion to admit a transcript of Davis's preliminary hearing testimony into evidence. The police bulletin from which Ms. Hoskins, Warren and (according to the police testimony) Davis identified a photograph of the defendant was admitted into evidence without any objection by defense counsel.
Defendant testified and denied any participation in or knowledge of the robbery. To show lack of motive, he testified that he had been employed at the same job for seven years and earned $5 per hour. On the night of the robbery he was at home the entire evening from 5 p.m. until 5 a.m. the next morning, in the presence of his mother and a young woman with whom he slept. Three days after the robbery he received a telephone call from the police informing him that he was wanted for questioning on the robbery charges. He went to the police station, where he told a policeman who he was and asked what they wanted him for. At that point he was arrested and placed in a lineup. He denied membership in any gang and asserted that the man identified by the victims as his partner in the robberies (who had pleaded guilty to the charge several months before Duncan's trial) would not know him if he were present. He explained the presence of his photograph in the police bulletin as resulting from his being arrested with an individual, who was a member of the gang described therein, several years before. When he was asked by his attorney what the disposition was of that charge, the judge sustained an objection by the prosecutor.
Defendant's mother testified on his behalf that on the evening of the robbery her son had come home from work at about 5 p.m. and had not left the house until the next morning. While she admitted that he was not in her presence all evening, she testified that no one could leave or enter the house without her hearing the disturbance. She testified that a woman friend of defendant arrived at about 7 p.m., went with the defendant to his room and did not leave until morning.
The young woman testified that she was employed at Mount Sinai Hospital and studying nursing in college. On the day of the robbery, she received a telephone call from defendant shortly after 5 p.m. and went to his home, arriving at 7 p.m. She stayed with defendant all evening and slept with him that night and he did not leave her presence from 7 p.m. until 5 a.m. the next day.
After hearing arguments of counsel, the court found Marvin Duncan guilty of the armed robbery of Everlean Hoskins and guilty of the armed robbery of Pringle Davis and entered judgment on his findings.
• 1 Defendant argues that the testimony of the police officers and Warren that Davis had identified defendant was hearsay and its admission constituted plain error, so that his failure to object in the trial court to this testimony did not waive his right to argue its prejudicially reversible effect on appeal. We agree with the State that this argument has been waived. The supreme court discussed the necessity for ...