APPEAL from the Circuit Court of Adams County; the Hon. JOHN
T. REARDON, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendants Michael Lawson and Steven Terwelp appeal from a conviction in a jury trial of attempt (murder) and armed robbery. They were sentenced to terms of 14 to 42 years imprisonment for the offenses. Defendants had also been found guilty of aggravated kidnapping. The judgments of conviction were entered only on charges of attempt (murder) and armed robbery.
On appeal in this court, defendants contend that (1) the trial court erred in failing to suppress certain evidence seized during a search of defendants' automobile; (2) the indictment charging attempt (murder) was insufficient in that it failed to allege the commission of a substantial step towards the offense of murder; (3) the State failed to prove defendants' guilt beyond a reasonable doubt, particularly with respect to identification testimony by the State's chief witness; (4) the trial court, in denying defendant's motion to suppress identification by a State's witness, erroneously referred to irrelevant evidence which had been stricken by the court; (5) the trial court improperly denied defendants' right to be present at the trial by failing to recess the proceedings upon the failure of defendants to appear after a recess; and (6) defendants' right to a fair trial was unduly prejudiced by certain actions of the prosecutor, which focused the attention of the jury on the absence of defendants from the trial.
Defendants Lawson and Terwelp were charged, by information, in the Circuit Court of Adams County, with attempt (murder), aggravated kidnapping and armed robbery. On February 26, 1975, the court ordered defendants bound over to the grand jury of Adams County on the charges of armed robbery and aggravated kidnapping. On the motion of defendants, the attempt (murder) charge was dismissed on the ground that the acts then alleged as constituting a substantial step toward the commission of murder were not committed in the State of Illinois.
Thereafter, on February 28, 1975, the grand jury returned an indictment charging defendants with the offenses of armed robbery, aggravated battery and attempt (murder). The count of the indictment which charged attempt (murder) alleged that defendants had committed a substantial step toward the commission of murder by placing Ronald Berry in an automobile, against his will and by threats of force, at the point of a pistol, and by telling Berry that they, the defendants, were going to kill him. Defendants moved to dismiss the attempt (murder) count of the indictment on the ground that the act alleged did not constitute, as a matter of law, a substantial step toward commission of the offense of murder. On April 7, 1975, defendants' motions to dismiss were denied.
Prior to trial, defendants filed a motion to suppress the in-court identification of defendants by Berry on the alleged improperly suggestive lineup procedures, and on August 15, 1975, the trial court conducted a hearing on defendants' motion. From the record, it is noted that defendants participated in police department lineups on two occasions, February 4, 1975 and April 30, 1975. The lineup held on February 4, 1975, was videotaped, and the videotape was shown to Berry in his hospital room on February 26, 1975. Berry viewed the April 30 lineup in person at the police station. Upon viewing the videotape in his hospital room, Berry positively identified defendant Terwelp, and selected two other participants in the lineup, one of whom was defendant Lawson, as the other individual to be identified, but was unable at that time to distinguish with certainty between the two individuals from the videotape.
Upon viewing the lineup on April 30, 1975, Berry identified defendant Lawson, but was then unable to identify defendant Terwelp due to the presence in the lineup of another man of similar appearance.
At the suppression hearing, the trial court viewed the videotapes of both the February 4 and April 30 lineups, and heard testimony from Berry concerning the lineups. The State's Attorney then elicited testimony from Berry regarding the incidents giving rise to the charges against defendants, and defense counsel objected to this testimony on the ground that it was irrelevant to the motion to suppress. After the court heard Berry's testimony concerning the matters giving rise to the charges, the trial court granted the motion of defense counsel and ruled that such testimony be stricken. After hearing additional testimony from Berry, and testimony from defendant Terwelp's counsel (who had been present during the April 30 lineup); from a participant in the February 4, lineup; and from the police officer who arrested defendants on February 4, the trial court denied defendants' motion to suppress the in-court identification.
In ruling on defendants' motion to suppress, the trial court stated:
"Here was a filling station that was testified was brightly lighted. The car drove in. The attendant came out to provide the service the car likely wanted. I think the answer was, `$5.00 worth of gas,' or something to that effect. The attendant, I presume, was reasonably close to the automobile when the conversation took place. The attendant then goes on to put the gas in the car. The testimony shows that he put in some gasoline and that during that time one of the men got out of the car and said, `Where is the john?' or words to that effect. And again, there was an opportunity to observe that person. Subsequently the attendant goes inside the station, which is also lighted, and he sees both of these people in there. * * *
With respect to the independent identification of the witness, quite honestly it seems to me that this identification is probably the strongest factor of the cases near as I can see it at this point. I really can't see if this Court would conclude that those line-ups were bad or impermissibly suggestive that the identification should be suppressed. But I cannot conclude that, not on the evidence we have heard."
It appears from the statements that the trial court made reference to testimony given by Berry regarding the alleged criminal incidents, which the court had ordered stricken.
Defendants also, prior to trial, filed a motion to suppress the evidence which had been taken during a search of the automobile in which defendants had been arrested. The facts relevant to defendants' motion to suppress evidence were placed before the trial court in a stipulation by the parties. It was stipulated that defendants were arrested in the early morning hours of February 4, 1975, in Mt. Sterling, Illinois, and that the arresting officer searched defendants incident to the arrest. While the officer searched the car, including the trunk and glove compartment, nothing was seized at the time of arrest. Defendants were taken into custody and removed to the Brown County Jail. Defendants' vehicle was left unattended for about 45 minutes, and was then towed to a garage in Mt. Sterling between 2 and 3:30 a.m. Subsequently, the automobile was searched for instrumentalities and fruits of the alleged crime. The search was not conducted for specified items, and was conducted without a warrant. The search consisted of examining the vehicle, taking vacuum samples from the interior of the car, taking latent fingerprints and removing soil samples from the inside and the underside of the vehicle. It was further stipulated that there was no judge who had his residence in Brown County in the early part of February 1975. The trial court, after consideration of defendants' motion, entered an order denying the motion to suppress the evidence seized from the automobile.
Testimony at the trial established that on February 3, 1975, Ronald Berry was employed at a Clark Oil Station in Quincy, Illinois, and that on that date Berry was scheduled to work from 3 p.m. to midnight. Late that evening, a 1960 or 1961 white Ford Galaxy occupied by two white males entered the station. Upon speaking to the driver, Berry proceeded to fill that automobile tank with gasoline and to check the transmission fluid. The passenger asked Berry the location of the restroom, and went to the restroom, and returned. Subsequently, Berry entered the station to check the price of transmission fluid, and the two accompanied him. When Berry turned around to tell the men the price of the fluid, the taller man, who had driven the automobile, was holding a gun on Berry and told Berry to get into the back room of the station. Berry gave the men all the money he had, and, when told that Berry had no more money, the shorter man struck Berry. The men then told Berry they were going to kill him and told him to walk to the car. The men and Berry entered the car, with Berry sitting in the front seat between the two men. They proceeded across the Mississippi Bridge to West Quincy. After turning off on a dirt road, the men demanded more money from Berry and then left the automobile. Berry told the men he had no more money, and was then shot in the throat. After Berry had fallen to the ground, he was shot from two to four additional times. The two men then took Berry's billfold and wedding band, walked back to the car, and left.
Berry thereafter crawled and walked to a house trailer, and knocked and kicked on the door. A police officer arrived, and Berry told the officer what had happened. Berry described the men, and included the fact that one of the men had worn an army-type fatigue jacket. At the trial, Berry made in-court identifications of the defendants as the men who had entered the station on the night in question. On cross-examination, Berry was questioned regarding the two lineups he had viewed and testified to positively identifying one individual from ...