APPEAL from the Circuit Court of Cook County; the Hon.
ROBERT L. MASSEY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant was found guilty of armed robbery and sentenced to serve 4 to 6 years in the penitentiary. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt and that defense counsel was incompetent. We affirm.
Fred Thompson testified at trial that on July 22, 1974, he entered a tavern known as Skip's Rendezvous sometime between 10:30 p.m. and 10:45 p.m., selected a bar stool near a television and ordered a bottle of beer. At approximately 10:50 p.m. a short black man entered the tavern with a gun, assumed a crouching position and announced a stickup. Two more black men with guns came in immediately after the first. The first gunman instructed the second man to enter the tavern to "take" Thompson and the third man to "take" the other customers. The second gunman approached Thompson and moved behind him. Thompson had turned on his stool toward the door when the first gunman came in and he observed the second gunman's face as he approached. The second gunman poked Thompson in the back with the gun he held and told him to put his hands on the bar and stand up. Thompson followed these instructions. The gunman stood behind Thompson and went through his pockets. Thompson turned around while his pockets were being rifled and asked the gunman to return his driver's license. The gunman told Thompson to turn around and shut up and jabbed him with the gun. When the robber proceeded to take Thompson's keys, Thompson turned around and told his assailant that he needed his keys to get into his house. The robber told Thompson that he did not need his keys, again poked him in the back with the gun and told him to turn around, shut up and quit looking at him. The victim did so but then turned back around and said: "* * * what do you mean, I am not looking at you." Thompson explained at trial that: "* * * I turned around intentionally so I could study him a little more carefully because I thought he was going to shoot me." The robber responded: "Shut your mouth or I will blast you." Then the robber spoke to one of the other gunmen. Thompson thought his assailant was asking what time it was. He turned around, said it was exactly 10:55 p.m., looked closely at the robber's face and studied it. The robber then ordered Thompson into the tavern's washroom. At first Thompson refused to move but when the robber repeatedly poked him in the back with the gun with increasing force Thompson did as instructed. The bartender, Thompson and the other customers all entered the washroom and remained there for approximately five minutes. Then they exited and the bartender called the police. Thompson further testified that the lighting in the tavern at the time of the robbery was quite good. He explained that several neon signs in the tavern's windows, a cigarette machine and the television, which was on at the time, combined to provide quite a bit of light in the area he was in. He added that this area was the most highly lit area in the bar. He also identified defendant as his assailant and described his gun as either a .32 or a .38 caliber, snub-nosed revolver.
On cross-examination Thompson testified that he forgot to mention earlier that there were ceiling lights on in the tavern during the robbery and that one was located over the area where he sat. The robber stood between one and two feet behind him during the robbery. Thompson observed his face for a total of approximately 25 to 30 seconds. The first time he saw defendant after the robbery was approximately two weeks thereafter in a lineup at a police station. He identified defendant as his assailant at that time. The men in the lineup answered questions asked by the officer conducting the lineup. Thompson heard defendant speak but he did not positively identify defendant by his voice alone. Instead, he recognized defendant's face and noted that his voice was exactly the same as that of his assailant.
On redirect examination Thompson recalled that he had testified at a preliminary hearing. He confirmed his testimony at the hearing that he observed defendant's face for about three or four seconds as the defendant first approached him. Subsequently, he turned around and studied defendant's face five times for a period of four or five seconds each time. He confirmed his preliminary hearing testimony that he twisted his body around each time he looked back at his assailant and did not simply turn his head on those occasions. He added that one preliminary hearing answer indicating that he had turned for only two seconds each time was not the answer he had given at the hearing.
James Smith testified at trial that he was tending bar at Skip's Rendezvous at approximately 10:45 p.m. on July 22, 1974, when the tavern's front door suddenly opened and a black man with a gun entered, assumed a crouching position and announced a stickup. Smith, who had been sitting on a stool behind the bar, stood up, turned around and faced the wall behind him. As he turned around he saw the gunman and glimpsed two other men coming in the door. During this glimpse he noticed that the other men were black and wore dark clothing. He also both heard and saw the first gunman direct the second man to enter the tavern to "take" Fred Thompson and the third man to "take" some other customers. Then the first gunman searched him, took his wallet and took money from another pocket. Smith did not see what the other gunmen were doing while he was being robbed. The first gunman ordered the other two robbers to take the customers into the women's washroom and then directed Smith to get a paper bag and put the cash register's currency into it. The gunman kept his hand on Smith's shoulder and his gun in Smith's back as Smith went to the rear of the tavern and secured a bag. Smith did not see the other robbers or the customers during this trip. Still with the robber's gun in his back and hand on his shoulder, Smith returned to the cash register. During his return he glimpsed the other robbers and the customers moving toward the washroom. Smith put all of the folding money in the bag and the robber took all of the change from the cash register's drawer. Then Smith was led to the washroom, pushed inside and told not to come out for five minutes. Four or five minutes later he came out and called the police. He never identified the other two robbers.
During Smith's cross-examination the State stipulated that Smith never identified defendant as one of the robbers and could not do so at trial.
Chicago police officer John Dorn testified at trial that he was a gang crimes investigator and had held this position since 1973. His only additional testimony on direct examination was that he arrested the defendant two weeks after the robbery.
On cross-examination Investigator Dorn testified that he had neither seen nor known the defendant prior to the arrest. Additionally, the investigator had never known defendant to be a member of a gang prior to the arrest. However, he did know prior to the arrest that defendant associated with people who were affiliated with gangs. At the time of the arrest Investigator Dorn was conducting an investigation into a series of tavern robberies. Two days prior to defendant's arrest a man was murdered during such a robbery and one of the defendant's associates had been identified as a participant in that robbery. Upon checking the prior arrest record of this individual it was discovered that defendant had been arrested with him approximately five months prior to this armed robbery. Through the investigation it was learned that defendant's parents owned a car that was similar to the one used in this robbery and defendant's general description fit the description of the tavern robbers under investigation. For these reasons the investigator thought defendant might be involved in the July 22, 1974, robbery. The investigator talked to defendant's mother when he went to defendant's home and she indicated that defendant was home on the night in question and on every evening for a week prior to the evening of July 22, 1974.
On redirect examination the investigator admitted that he never determined that defendant was involved in a tavern homicide. Victims and witnesses of numerous tavern armed robberies were contacted as part of the investigation of a tavern homicide. Victims from these numerous tavern robberies were brought in to view lineups and that is how Fred Thompson came to view the lineup in which defendant participated.
Mrs. Elizabeth Davis, defendant's mother, testified at trial that defendant lives with her and her husband in the family's home. July 22 is her oldest daughter's birthday and on July 22, 1974, a birthday party was held for her at the Davis residence. For a week prior to the party defendant helped to prepare the home for the celebration by cleaning and painting portions of it. The party started around 8:30 p.m. or 9 p.m. and defendant was there at that time. It lasted until 2 a.m. or 2:30 a.m. the next morning. Defendant never left the party. Also, he was never permitted to use the family car prior to or on July 22, 1974, as he did not have a driver's license until 1975 and Mrs. Davis and her husband would not let him use the car before he obtained his license. Defendant was required to be home by 10 p.m. every evening and he was home by that time throughout the month of July 1974.
On cross-examination Mrs. Davis testified that about 25 people attended the party and repeated that defendant was at the party from 8:30 p.m. to 2 a.m. She had him in sight the entire evening.
Defendant testified at trial that he was a high school student on July 22, 1974, that he had always been required to be home by 10 p.m. and that he had always observed that curfew. He never belonged to any gangs, never saw Fred Thompson before the line-up and never had a gun in his hand except during ROTC training in high school. He first applied for and received his driver's license in 1975. The first time he drove a car was also in 1975 but it was not the family car. His parents never let him drive the family car. He denied ever being near the tavern where Fred Thompson was robbed.
On cross-examination defendant testified that he did not attend school during the summer of 1974. He repeated that he never held a gun except in ROTC and that he had never seen Fred Thompson prior to the lineup. At 11 p.m. on July 22, 1974, he was at home attending his sister's birthday party. That party started around 8:30 p.m. and ended around 2:30 a.m. the next morning. During the day of the party he worked on the house, painting the basement and the outside of the house. He had been painting for about a week prior to that time in preparation for the party. He was home by 10 p.m. every night of the week. At the preliminary hearing he testified that his mother had made him stay home every day during the week prior to the party after he came home from school. At trial he did not remember if he went to school at all in the summer of 1974, but he lied to his mother when ...