APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant was found guilty of armed robbery and aggravated battery and was sentenced to serve 5 to 10 years in the penitentiary for armed robbery. On appeal he contends that: (1) he was not proved guilty beyond a reasonable doubt; and (2) a statement by the prosecutor in closing argument was prejudicial and deprived him of a fair trial. We affirm.
The following pertinent evidence was adduced at trial.
THE VICTIM CHICAGO POLICE OFFICER EBBERT GENE GREENWOOD
Officer Greenwood testified that at some point between 1 a.m. and 1:30 a.m. on October 27, 1973, he entered Vern's Friendly Lounge, a tavern located at 1258 South Pulaski Road in the City of Chicago. He was off duty at that time and was dressed in a sport coat, shirt and pants. Under the sport coat he carried his snub-nosed service revolver in a shoulder holster on his left side. The revolver was loaded with six rounds of ammunition. The tavern was situated on the northwest corner of the block and he had parked his 1970 Ford Maverick in the bus stop area directly in front of the tavern. Martha Marshall had telephoned him while he was at the Continental Lounge, located at Fifth Avenue and Tripp Street in the City of Chicago, and asked him to pick her up at Vern's and take her home. After entering Vern's he saw Martha Marshall talking to a barmaid, so he ordered a drink and then went to the washroom. Previously, at the Continental Lounge, he had had something to drink but he did not recall the exact number of drinks he consumed. After leaving the washroom, he looked through the window of the tavern at his car and discovered that he had a flat tire. He informed Miss Marshall that he was going out to change the flat and suggested that she should come out when she was ready to leave. The tavern closed at 2 a.m. and it was shortly before 2 a.m. when he went out to change the tire. He went to the car, opened the trunk, took out the jack and spare, and started jacking the car up and taking the lugs off the wheel with the flat tire. During the next ten minutes the tavern closed, its customers departed and Miss Marshall came out and stood on the curb next to his car. Five or 10 minutes after the tavern closed he suddenly heard someone come up behind him and say something which he did not understand and then a gun was put behind his right ear. He asked, "Are you the man, a policeman?" The other person said, "Yes," and he responded, "Well, I am too, my identification is in my back pocket." While he was saying this the person took his service revolver out of its holster and his identification out of his back pants pocket. He looked over his shoulder and saw the person's face. Then he heard a click behind his ear, the sound of a misfire. At this point in the trial he identified the defendant as the assailant. When he heard the misfire he was standing up by his car and after hearing it he turned to his left and began to run north on Pulaski. He ran two or three feet before he was shot twice, once in his left leg and once in his left arm. He then ran to the Fillmore Police Station, which was two blocks from the tavern, and reported that he was a police officer and that he had just been shot. A squad car took him to the University of Illinois Hospital. He remained there for three days. After he got out of the hospital, his star case, containing his identification card and star, was returned to him.
On cross-examination, the victim admitted he was not in uniform at the time of the robbery and shooting and stated that he wore nothing on the night of the incident which would indicate that he was a policeman. He further stated that Martha Marshall knew that he might be at the Continental Lounge. It was not unusual for him to be there on a Friday night or for her to call him there. However, nothing had been prearranged before he got the call from her on the night in question. The only reason he parked in the bus stop area was because he did not plan to be there long. He planned to drop Miss Marshall off at her home and then go home himself. He admitted that when he saw that the tire was flat he did not like it. He was not dressed in tire changing clothes, and having to get his jack, spare and lug wrench out, jack up the car and change the tire while Miss Marshall was waiting for him was not pleasing to him. He was perturbed. He was loosening lug nuts when the man came up to him. Miss Marshall was the only person he had thought was around at that time. He felt defendant's weapon and stood up. He did not know if defendant asked for his money. Defendant had said something; he did not understand what was said. He had his money in a clip in his right front pants pocket. Defendant pushed him across the hood of the car, took the officer's revolver, went through his coat pockets and then took the simulated leather star case from his back pants pocket. He did not mention anything about defendant going through his coat pockets before because he was not asked whether defendant did so. He turned around and saw the barrel of defendant's weapon. Then he heard the misfire. The weapon defendant had to his head was the one that misfired. He admitted that he had testified before the grand jury in January of 1974, and had related a sequence of events different from that recounted in his trial testimony; but he stated that the sequence testified to at trial was correct. The weather on October 27, 1973, was dry and rather warm. He had never seen defendant before the incident.
On redirect examination he stated that at the grand jury hearing he responded to most of the State's Attorney's questions with either a "Yes," or a "No" answer. He further stated that he only glimpsed the barrel of defendant's weapon during the incident and he could not describe it.
Miss Marshall testified that she arrived at Vern's about 9:10 p.m. on October 26, 1973, and remained there until approximately 2 a.m. At approximately 12 p.m. she called Officer Greenwood at the Continental Lounge and asked him to pick her up at Vern's. The victim arrived at Vern's between 1 a.m. and 1:30 a.m. He was dressed in civilian clothes. He ordered a drink and then went to the men's room. After he came out of the men's room, he picked up his drink and walked to the front of the tavern. In a few moments he came back and told her he had a flat tire and said that when she was ready to leave, he would be outside changing the tire. It was very close to 2 a.m. closing time when the victim went outside to change the flat. During this period of time other patrons were leaving. She left the tavern, walked to the curb and stood behind Officer Greenwood. She noticed the flat and saw Officer Greenwood taking lugs off a wheel. A man came by, brushed into her, and headed for the officer. As he went by her she noticed that he was taking a gun out of his pocket with his right hand and that he was wearing a dark, waist-length jacket with lighter pants and a big, floppy, furry hat. She yelled to Officer Greenwood that the man had a gun. The officer started to stand up and asked, "Are you the man?" and the person said, "Yes, I am the man." The victim responded, "Well, I am the man too. My identification is in my back pocket." She saw the man take the officer's identification. Officer Greenwood was spead-eagled on the car and the man was frisking him while they were having this conversation. She had seen the assailant in Vern's earlier in the evening before the victim arrived. At this point in the trial she identified defendant as the assailant. The gun she saw defendant holding was flat looking and the back end of it stuck out over his hand. She saw defendant remove the officer's gun before he took the identification. The victim turned around and took a couple of steps; then she heard two shots and saw Officer Greenwood fall. She did not see what happened to the victim after he fell because defendant turned toward her with a gun in each hand and she was watching him. One of the guns had a cylinder and the other was flat. Defendant held the one with the cylinder in his left hand. He looked across Pulaski, then looked at her again and then ran west on 13th Street. She screamed and banged on Vern's window in an attempt to gain entrance and call the police. Then Officer Butler arrived and they were admitted to Vern's and called the police. The police arrived and took her to Illinois Research Hospital where she saw Officer Greenwood. Thereafter she went to a police station and then she went home. Later that day detectives came to her home and she looked at photographs. The next day she went to the police station, viewed a lineup and identified defendant as the assailant. At that time he was wearing the same clothing he wore on the night of the shooting.
On cross-examination, the witness admitted that she had known Officer Greenwood for about six years prior to the incident, that she had gone out with him during that period and that they were friends. She did not have a date with him on the night in question but she had spoken to him earlier and he expected her to call him at the Continental Lounge since they had agreed that he would pick her up and drop her off at home. She regularly called and had him take her home. During the incident, Officer Greenwood was spread-eagled with his hands on the car. Defendant patted the victim down and then took the officer's revolver with his left hand. Defendant held a gun in his right hand and held Officer Greenwood's revolver in his left hand when he took the identification out of Officer Greenwood's back pants pocket with his left hand. The officer then turned to his left and started to run north that was when the gun was fired. She admitted that she did not know which gun was fired or where the bullets struck the victim, but she heard him yell and then saw him go down. Thereafter defendant turned around and looked directly at her, making no attempt to hide his face from her. He was holding the guns so that the barrels were pointing toward her. He looked across the street, looked at her again and then ran. He did not try to take her purse or any of her personal property. She did not talk to the victim that night at the hospital and she did not visit him either at the hospital or at home while he was recovering from his wounds, but she did talk to him sometime during this recovery period. However, he did not tell her what to say at trial.
CHICAGO POLICE OFFICER LAWRENCE BUTLER
Officer Butler testified that he had known Officer Greenwood for nine years and that he considered him to be a friend even though he did not directly socialize with him. On October 27, 1973, in the early morning hours, he was off duty and was traveling south on Pulaski in his car. His girl friend was in his car with him at that time. He was coming from the Trio Lounge which is located at Chicago Avenue and Kedzie. As he came to the intersection of 13th and Pulaski he noticed Officer Greenwood's car sitting at the northwest corner, slightly out in the street. He had ridden in that car during in-service training a few years before. He proceeded south on Pulaski for approximately half a block, glanced into his rear view mirror and saw Officer Greenwood come up from the curb side of the parked car with both hands in the air. He also saw two other people near Officer Greenwood, one female and one male, that he did not recognize and he noticed that the male had a gun in his left hand. Officer Greenwood was facing the car, the man was positioned behind him and the female was standing close to the building. After seeing this in his rear view mirror, he stopped his car and backed up about two car lengths. He then got out of the car, grabbed his revolver and started moving around the rear of his car. At this juncture he was about a fourth of a block from the scene of the incident, facing north. The man standing behind Officer Greenwood fired the gun in his left hand twice and the victim slumped to the street. Officer Butler identified defendant as the assailant at this point in the trial. Defendant then moved west on 13th Street for almost half a block and then ran diagonally across the street into an alley. Officer Butler fired one shot in the assailant's direction and chased him until he disappeared into the alley. The officer then went back to where the victim fell but found only Martha Marshall. He knocked on Vern's door, showed his credentials to the gentleman inside, was admitted and called the police. Thereafter the officer obtained a flashlight and went out into the alley in the rear of the tavern in search of Officer Greenwood. Police cars arrived and patrolled the area for 10 or 15 minutes but could not locate the assailant. Officer Butler described defendant as wearing a big fur cap, which was either black or blue and light gray checked, a waist-length, blue, wet-look jacket and pants that were much lighter than the jacket. The day after this incident, the officer viewed a lineup with five or six men in it and identified defendant as the assailant. At that time defendant was not wearing a hat but otherwise was dressed almost the same as he was on the night of the shooting.
On cross-examination, Officer Butler stated that riding in Officer Greenwood's car to in-service training enabled him to recognize the car when he drove past it that evening. He repeated that he noticed a gun in defendant's left hand but he did not see a gun in defendant's right hand and he had not see defendant hold a gun at Officer Greenwood's head. When he first saw the victim, Officer Greenwood was facing the parked car. He saw the victim turn his head and then saw and heard the shots and saw the victim fall to the street. From the time he first saw Officer Greenwood until the time he heard and saw the shots, the victim was either coming up from the ground with his hands in the air or standing with his hands up he did not see the victim spread-eagled over the front of the car. After Officer Greenwood fell, defendant walked at a rapid pace west on 13th Street and put the gun in the front of his trousers. Defendant started running after walking about half a block from the scene of the incident. After the victim fell, Officer Butler did not see defendant turn and face the woman and hold two guns in front of her.
CHICAGO POLICE OFFICER JOSEPH GIULINANO
Officer Giulinano testified that he was on duty during the late evening of October 26, 1973, and the early morning of October 27, 1973, in uniform and in a squad car with his partner. Sometime after 2 a.m. on October 27, 1973, they received a radio call and proceeded to 13th and Pulaski. Upon arriving at that location he observed what appeared to be a worn badge case lying on the street. The case was black in color and was made of leather which was fairly worn. He picked it up, opened it, and saw that it contained a star of a Chicago police officer. His supervisor told him to take the badge to the hospital where they had taken the officer. He proceeded to Illinois Research Hospital and upon arrival he was ordered to give the badge to another officer.
On cross-examination he admitted that he did not handle the badge case in such a way as to preserve any fingerprints that might be on it. Further, no one instructed him to try to preserve any fingerprints that might be on it. After he arrived at the hospital he learned that the person who had shot the victim had had possession of the badge case. Nevertheless, he did nothing to preserve any fingerprints that might have been on the star or its case after learning of this fact. He did not make out a report on his recovery of the case.
CHICAGO POLICE TECHNICIAN JERRY RICHARDS
Officer Richards testified that he was an evidence technician on October 27, 1973, and that he was on duty in the early morning of that day. He arrived at 13th and Pulaski at 2:45 a.m. and, together with his partner, he proceeded to photograph and examine the scene. He recovered a bullet lying on the sidewalk about a foot south of the entrance to the second floor of the building housing the tavern. His partner photographed it before technician Richards picked it up and placed it in an evidence envelope. This envelope was then sealed, marked with pertinent information and initialed by both men. The car on the scene was dusted for fingerprints but none were found.
On cross-examination, he stated that he dusted the exterior of the parked car but the print impressions he found were too badly smudged to be of any value. He further stated that no one gave him a star case that night for dusting.
CHICAGO POLICE SERGEANT DONALD SMITH
Sergeant Smith testified that he was a firearms technician in October of 1973, and that he received a sealed evidence envelope containing a .38 caliber spent bullet on October 27, 1973, and a .38-caliber revolver and four live cartridges on October 29, 1973. He examined the spent bullet and classified it as having been fired by a .38 caliber revolver with six lands and grooves in the barrel which were inclined to the left. He visually examined the revolver and noticed the name "Gene Greenwood" inscribed on the right hand side of the frame. He test fired it twice and determined that it had six lands and grooves which were inclined to the left. He compared the test bullets with the evidence bullet and concluded that the evidence bullet could have been fired from the weapon, but the evidence bullet had been so severely damaged that formation of a positive opinion was not possible. With reference to semiautomatic pistols he stated that after such a weapon fired, a cartridge case would be automatically ejected, but if such a weapon misfired, a cartridge casing would not be automatically ejected.
On cross-examination, he admitted that the only reason he could give to explain the condition of the evidence bullet was that it had struck something of a harder material than it was, and he could not tell whether it struck that material before or after it entered human flesh. He further stated ...