APPEAL from the Circuit Court of Cook County; the Hon. FRANK
B. MACHALA, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant was convicted of robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-1) and sentenced to serve a term of four to 12 years in the penitentiary. This appeal presents the issue of whether reversible error occurred as the result of the prosecutor's reference, during his opening statement, to defendant's arrest on an unrelated armed robbery charge.
Only two witnesses testified at defendant's trial the complaining witness and the investigating police officer.
Mary Ryan, the complaining witness, testified that as she was walking toward a train station near 96th and Wood Streets in Chicago at approximately 7 a.m. on April 23, 1975, a man, whom she identified as the defendant, came out from some basement stairs and approached her. The man grabbed her arm, hit her in the side, pushed her to the ground, and took her purse. He then ran away. The entire encounter took place in less than two minutes. She testified that she had an excellent opportunity to view her assailant during the attack and described him to the police as being a black male, approximately 17 years old, about 5 feet 7 inches tall, and weighing 145 pounds. She testified that she told police there was nothing remarkable about the assailant's appearance.
After the robbery, police investigator Doyle asked her to view a lineup at the police station. There were six black males in the lineup, but she did not identify any of them.
Thereafter Doyle visited Mrs. Ryan's home on three occasions, showing her a series of photographs of young black males. On the third visit she identified a photograph of the defendant.
Sometime after she had identified defendant from the photograph, Doyle asked Mrs. Ryan to go to a Chicago courtroom to see if she could again identify the man. Accompanied by her husband, she sat in the courtroom for approximately two hours as about 30 men were brought out of the lockup, one at a time, to be brought before the court. Finally, defendant was brought out and his name was announced. Mrs. Ryan then positively identified defendant. At trial she identified the defendant in the courtroom as the man she had seen at the scene of the robbery and in the photograph. She testified that Doyle had not given her the suspect's name prior to her hearing it in the courtroom that day.
Officer Doyle corroborated Mrs. Ryan's testimony as it related to the investigation. He testified that he arrested defendant in connection with another "incident" two months after the Ryan robbery at 95th and Wood Streets, about one block from the scene of the Ryan robbery; that defendant was not in the lineup Mrs. Ryan initially viewed; that his picture was not among the first two groups of pictures he had shown to Mrs. Ryan; that the pictures were not available for use at the trial because they were in the locker of his partner, who was then away on vacation; that two attempts to arrange a lineup after defendant's arrest were frustrated; that court rules precluded the conduct of a lineup in the initial courtroom; that he was not present in the courtroom when Mrs. Ryan identified defendant; that Mrs. Ryan's husband is a Chicago police officer, but that he was not aware of the name of the suspect prior to his identification by Mrs. Ryan; and that defendant's name was not on either the front or back of the photograph Mrs. Ryan had identified.
Defendant presented no evidence in his defense.
Defendant was arrested for an armed robbery some two months after the robbery for which he was on trial. He was arrested about one block from the scene of the Ryan robbery. Prior to trial, defense counsel made a motion in limine to prevent the prosecutors from making any reference to, or presenting any evidence that defendant's arrest was for armed robbery. The trial court denied the motion.
During his opening statement, the prosecutor made the following statement:
"You will also hear [Investigator Doyle] testify that on the 29th of June, 1975, he had an occasion to arrest that man [indicating the defendant] approximately one block away from where Mrs. Ryan was robbed and will testify that man was arrested for armed robbery."
Defense counsel objected to the reference to an armed robbery and at a sidebar conference argued that it was highly prejudicial and moved for a mistrial. The prosecutor argued that the reference was necessary to "show the fact of the similarity of the area and to explain why Investigator Doyle took Vernon Watson's picture ...