APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a bench trial, Bernard Marshall and Raymond Marshall were found guilty of armed robbery but not guilty of attempt murder. Each was sentenced to a term of 8 to 24 years. Both have appealed.
At trial, Dennis Zurawski testified that on July 7, 1974, he was employed as a manager at the Beacon Motel in Harvey, Illinois. At about 12:15 a.m., he was in the living room of his manager's apartment, adjacent to the motel office, when he was summoned to the office by a bell which indicated the presence of a customer. A man in the office asked for a room. Zurawski told him that none was available. The prospective customer then left the office.
Shortly thereafter Zurawski went out of the motel by a rear door. He heard someone call out to him. He turned and saw the same individual. The man was standing near an automobile which appeared to be a 1973 or 1974 brown Thunderbird with a black vinyl top. Zurawski noted that the license number was TY 8124. After responding that he had to clean a room, Zurawski turned and began to walk away.
The man called out to Zurawski again. Upon turning around, Zurawski saw that the man was pointing a gun at him. At the other's demand, Zurawski put his hands up and walked toward the car. The other man held the gun at his back, toward his side. The witness was told that the man and his companions were "going in for the money." Then two or three additional men emerged from the automobile. The witness observed a motel customer whom he knew walking through the parking lot toward the front door of the office. At that point, the witness was pulled behind a tree by the man he had first seen in the motel office. One of the other men removed a gun from the witness' belt. The gun belonged to the motel owner.
Three men escorted the witness toward the back door of the motel and into the office. The two additional persons were of small stature and carried guns. Zurawski identified these men at trial and Raymond Marshall and Bernard Marshall. In the office, Raymond Marshall opened a drawer and removed about $150 in cash. He asked Zurawski where there was more money. Raymond Marshall and one of the other armed men walked together with Zurawski into the bedroom where Zurawski pointed to a drawer. Raymond Marshall removed $250 or $300 from the drawer.
Raymond Marshall then told Zurawski that he would kill him. When Zurawski told him that there was no safe, Raymond Marshall struck him on the head with the gun. The witness fell onto the bed and was told by Raymond Marshall to roll over so that he was lying face down. He complied. After he heard the men leave by the back door, he called the police. Zurawski testified that Raymond Marshall did most of the talking during the robbery. That same night, about half an hour later, Zurawski went with some police officers to a street intersection on the south side of Chicago where he observed the same Thunderbird automobile that he had previously seen at the motel. He identified this automobile at trial from photographs.
About three days after the robbery, Zurawski viewed about 20 photographs of potential suspects. He identified the photograph of Bernard Marshall as one of the men who had robbed him. In court, the witness indicated that he believed that Raymond Marshall was the individual in the photograph he had previously identified. Shortly thereafter he corrected his testimony and stated that he knew that the picture was that of Bernard Marshall, though it appeared to resemble Raymond. He also testified that both Marshall brothers were present during the robbery.
The evidence also shows that after the robbery was completed, the men returned to their car. William O'Donnell had remained in the driver's seat throughout the robbery. He then drove the car onto the Dan Ryan Expressway. After receiving a radio report of the robbery, an Illinois State Police Officer began to follow the automobile. The vehicle matched the appearance and license number of the car used in the armed robbery as described in the radio message. The police car pursued the car carrying defendants at high speeds. Someone shot at the police officers from the rear window of the getaway car. Finally the car stopped and the occupants fired several shots at the police. As additional state troopers arrived and shot at the car carrying the suspects, all but one of them fled. The driver of the automobile and a wounded companion were arrested. Another individual was found hiding in a nearby tree. Bernard and Raymond Marshall were arrested sometime later.
William O'Donnell testified that on the evening in question he was driving his automobile near 55th and Loomis Streets in Chicago. He met a school friend named Malcolm Wynn, who, accompanied by three companions, asked for a ride. Upon entering the Dan Ryan Expressway, the witness noticed that one of his passengers was pointing a gun at him. In court, he identified that individual as Raymond Marshall. Raymond Marshall said: "We are going to stick something up." O'Donnell stated that he did not "want anything to do with it." He was told by Raymond Marshall that he was in it "whether you like it or not." Raymond Marshall directed the witness to stop at the Beacon Motel and said, "Looks like a nice place to rob." At trial, O'Donnell also identified Bernard Marshall as having been present in the car during these events.
O'Donnell testified that one of the passengers left the car and entered the motel. When he returned the other men also left the car. One remained near the car and pointed a gun at the witness. Another entered the motel office through the front door. Raymond Marshall and Bernard Marshall held the motel manager at gunpoint and then disappeared from view. After about five minutes, they returned carrying a large brown paper bag and jumped into the car. O'Donnell was instructed by Raymond Marshall to drive away from the motel. He entered the expressway and accelerated to about 120 miles per hour. He drove rapidly northward for some time and noticed that he was being followed by a police car with a red light on its top. After leaving the expressway and reentering and leaving again, he heard gunshots and stopped the automobile. He lay on the floor where he remained until approached by a policeman holding a gun. He told the policeman, "Don't shoot, I didn't do anything. I was forced." He was then arrested. He was charged along with Bernard and Raymond Marshall but the State later elected not to prosecute him. At trial, he identified the car he had been driving from a photograph previously identified by the victim as depicting the vehicle used by the robbers.
In this court, Bernard and Raymond Marshall contend that the trial court committed reversible error by denying their pretrial motions to suppress their identifications made by Dennis Zurawski and that they were denied their constitutional right to a preliminary hearing. The State responds that these defendants waived these points by failing to include them in their written post-trial motion; the trial court properly denied Bernard Marshall's oral motion to suppress his in-court identification; the trial court properly denied defendants an opportunity to cross-examine the co-defendant William O'Donnell at the preliminary hearing; the trial court properly denied Raymond Marshall's motion to suppress his identification at the preliminary hearing where the State stipulated that it would not introduce evidence of this identification at trial; and that the trial court afforded defendants a fair trial.
Bernard Marshall first contends that the trial court committed reversible error by denying his motion to suppress his in-court identification by Dennis Zurawski. This witness had identified Bernard Marshall's photograph shortly after the robbery. At trial, he testified on direct examination that the photograph was that of Raymond Marshall. Shortly thereafter, he was recalled for further direct examination and he corrected his testimony. He freely admitted that he had been mistaken because the photograph actually resembled Raymond Marshall. However, his in-court identification of Bernard Marshall was clear and unshaken. He testified that both men were present and spoke to him outside of the motel just prior to the robbery. On cross-examination by able counsel for defendants, he admitted that he could identify only Raymond Marshall as having been present within the motel during the course of the robbery.
Cases cited by defendants which discuss in-court identifications based on suggestive pretrial procedures are inapposite here. There was no evidence that the procedures used by the police in showing photographs to Zurawski were suggestive. In fact the trial court noted, correctly, ...