APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendants, Larry Williams, Richard Hall and Marcel Moore, were charged by indictment with the offense of armed robbery in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 18-2). Upon a joint jury trial each defendant was found to be guilty as charged and judgments were entered on the verdicts. Defendant Williams was sentenced to serve a term of confinement in the Illinois State Penitentiary of 4 years to 4 years, 1 day; defendant Hall was sentenced to serve a term of 5 to 15 years; and, defendant Moore was sentenced to serve a term of 25 to 60 years.
Each defendant has appealed and presents several issues for our consideration. Defendant Hall contends that his constitutional right to confront a witness was violated by the testimony of a State's witness who testified regarding a confession made by defendant Moore outside the presence of defendant Hall and that such error was prejudicial in view of defendant Hall's contention that the evidence properly adduced was insufficient to establish his guilt beyond a reasonable doubt. Defendants Williams and Hall also contend that the trial court erroneously instructed the jury as to the definition of circumstantial evidence. Defendant Moore asserts that the prosecutor's closing argument, comparing the viciousness of the instant crime to life in the jungle, was improper and served to deny defendant a fair trial and that his sentence was excessive in comparison to those meted out to his co-defendants.
A review of the evidence adduced at trial reveals that on June 24, 1972, Ollie Wilson owned and operated the W&W Food and Liquor Store located at 401 W. 95th Street in Chicago, Illinois. At approximately 10:30 p.m. on that date Wilson was present in the store along with his cashier, Herman Williams, and a customer, Rufus Willis. Wilson was standing at the rear of the store between the meat counter and a beer cooler. Williams was tending the cash register located at the front of the store. Willis was standing in an aisle near the beer cooler.
At 10:40 p.m., two men entered the store and stopped near the cash register. Within seconds they were joined by two other men who walked to the rear and positioned themselves near a telephone on the wall. At this point, one of the individuals near the cash register drew a gun, placed it to Williams' face and announced a holdup. The man removed $250-300 from the till.
As the holdup was announced, the two men who had positioned themselves at the rear of the store displayed weapons. One bandit put a gun to Willis' head and took his wallet. The other assailant accosted Wilson and threatened to shoot unless Wilson came out from behind the counter. Wilson refused and at this point a shot was fired. Wilson also drew a weapon, fired in the direction of the four assailants and heard someone say, "I'm hit." The assailants fled the premises and Wilson summoned police.
Chicago Police Department Investigator John Burge arrived on the scene shortly thereafter and interviewed Wilson and Williams who provided descriptions of the suspects. Burge also observed a trail of blood on the floor. Burge's investigation revealed that Englewood Hospital had admitted one Marcel Moore.
On June 28, 1972, Burge went to the hospital where officials provided him with a bullet which had been surgically removed from Moore's person. Burge submitted the recovered bullet for ballistics examination by the Chicago Police Department Crime Laboratory. The examination established that the bullet recovered from Moore's body had been fired from Ollie Wilson's gun.
Upon his admission to the hospital, Moore said that he was the victim of an armed street gang. However, when advised of his constitutional rights and after being confronted with the ballistics evidence, Moore admitted to Burge that he had participated in the liquor store robbery. During the course of a pretrial hearing Investigator Burge testified that Moore also named two of his confederates Larry Williams and Richard Hall. Williams and Hall were arrested later that day and were identified by Ollie Wilson and Herman Williams from photographs and a lineup as two of the participants in the armed robbery.
At trial, Ollie Wilson testified that on the night of the robbery, the lights in his store were on "full blast" during the 7-10 minutes in which the assailants were on the premises. Wilson was unable to identify the two men who stopped by the cash register. He identified the two who had proceeded to the store as Hall and Moore and further indicated that he was familiar with Moore inasmuch as Moore had visited the establishment prior to the date in question. Wilson observed Hall during the course of the robbery from a distance of 4-5 feet and identified him as the assailant who accosted Rufus Willis. Wilson identified Moore as the individual who had ordered Wilson from behind the counter upon a threat of death.
On cross-examination, Wilson also stated that at a preliminary hearing held one month after the incident he was asked to identify the participants in the robbery. Wilson identified Moore and, although he had previously identified Hall, Wilson did not identify Hall at the preliminary hearing. Wilson explained that he did not observe Hall in the courtroom on that occasion which Wilson described as a "fast shuffle" in a crowded room.
Herman Williams, the store's cashier, also testified that the robbery was begun by the entrance of two men who stopped near the cash register. One of these individuals positioned himself 10 feet from the register. Williams identified the latter individual as defendant, Larry Williams. The cashier further testified that after the holdup was announced he was ordered to the rear of the store in the vicinity of a customer, Rufus Willis. The cashier also identified defendant Hall as the robber who subsequently accosted Willis.
On cross-examination, Williams admitted that he had previously lied when he testified that he had initially heard co-defendant Moore's name mentioned in court. Williams stated that prior to his being called to the witness stand he had heard the name mentioned by a passerby. Williams also admitted that earlier that morning and prior to the commencement of trial proceedings, he had identified another man to defense counsel as defendant Moore. It appears that on the latter occasion counsel for defendant Moore managed to be in the room where Williams was waiting to be called to testify. Counsel seized this opportunity to engage in some last minute "discovery" and, as the defendants were being led out to the courtroom, counsel interrogated the witness as to the identity of a defendant-prisoner. Williams explained that the misidentification occurred because, "I don't like to be bothered when I'm out." Based upon that brief encounter, a protracted cross-examination was developed which quickly deteriorated into a colloquy of non-responsive answers by the witness to the potentially impeaching questions of counsel. No effort was made to complete this impeachment by the admission of rebuttal evidence.
The State also adduced the testimony of Rufus Willis who corroborated the other witness' description of the robbery. Willis was unable to identify any of the perpetrators.
Investigator Burge testified for the State and detailed his investigation of the matter. In particular, Burge stated that immediately after his conversation with Marcel Moore on June 28, 1972, Burge proceeded to a particular ...