APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Andrew Crawford, was convicted of the charge of burglary and the charge of unlawful use of a weapon within 5 years of his release from the penitentiary. (Ill. Rev. Stat. 1973, ch. 38, pars. 19-1, 24-1(a)(4), 24-1(b).) He was sentenced to concurrent terms of 6 years and 4 months to 20 years and 3 to 10 years respectively.
On appeal, defendant contends: (1) he was denied a fair trial by the admission into evidence of a certain incriminating statement and by denial of his motion to suppress this statement in violation of the rule that when the voluntary nature of a confession is brought into question, the State must produce all material witnesses at the motion to suppress; (2) he was denied a fair trial by the admission into evidence of identification testimony which resulted from a suggestive showup shortly after his arrest; (3) he was arrested without probable cause and denied his Fourth Amendment right to be free from unreasonable searches and seizures; (4) his court-appointed counsel was incompetent; (5) he was denied a fair trial because the State introduced immaterial evidence to prove a point not then in issue; and (6) he was not proved guilty of burglary beyond a reasonable doubt.
We affirm in part and remand for resentencing.
Samuel Bressi testified that on October 13, 1973, he occupied room 779 at the Sheraton O'Hare Hotel, located near O'Hare International Airport in Chicago. Between 9:30 and 10 p.m., he returned to his room for the night, unlocked the door and walked into the room. He observed defendant standing a few feet away; his briefcase which he had locked when leaving the room several hours earlier, had been opened and the top flap of the briefcase had been pulled down. Bressi asked defendant what he was doing in his hotel room. Defendant answered that he had entered by mistake. Bressi continued his inquiry because the room had been locked. Defendant merely said it was a mistake and he had not taken anything; defendant then walked past him out the door toward the elevator. Bressi accompanied defendant, asking defendant to stop until someone from hotel security arrived and verified that he had not taken anything.
At this time, Armando Aguilar, one of Bressi's companions on the trip, stepped out of the elevator as defendant and Bressi approached. Defendant entered the elevator, but Bressi held the elevator door open and asked Aguilar to contact hotel security personnel. As Aguilar started down the hallway, defendant took a .38-caliber revolver from underneath his jacket, pointed it at Bressi and told him to get out of the way. Bressi let the elevator door go and started walking down the hallway toward his room as a shot rang out.
Five to ten minutes later, Bressi went downstairs to the lobby with Aguilar. At the front desk, a security officer working for the hotel asked him to come into an office where he observed the defendant and one or two other hotel employees. Bressi informed the security officer that defendant was the man he had seen on the seventh floor. It was determined that none of Bressi's possessions were taken from the room.
Armando Aguilar testified that when he got off the elevator he saw Bressi and the defendant walking toward him and heard Bressi say, "Well, if you didn't take anything from my room, do you mind if we have someone come up to my room and search it to make sure nothing is missing?" Defendant said he did not object to having the room searched and Bressi asked Aguilar to call the operator. Defendant entered the elevator but Bressi was holding the elevator door. Aguilar turned around and heard, "Watch out! He's got a gun!" He then heard a loud explosion and ran toward Bressi's room. After the hotel operator was called, they went downstairs to the desk. He then went to the office and identified defendant as the man he had seen with Bressi near the elevator on the seventh floor.
Chicago police officer Richard Kozak testified that on October 13, 1973, he was employed part-time as a security officer at the Sheraton O'Hare North Hotel. He was paged and spoke on the housephone located in the hotel lobby with the hotel operator at the main switchboard. He was informed a shot was fired on the seventh floor of the hotel and the person who did the shooting was described as a male Negro. As he was talking on the phone, he observed defendant, a black man, running through the lobby to the first set of exit doors. The defendant was running from the direction of the elevators servicing the first through eighth floors. The officer put down the phone and called to defendant to stop, because he wanted to talk to him. Defendant briefly glanced back, then started through the second set of exit doors. The officer pursued defendant outside into the parking lot where he placed him under arrest and performed a patdown search of defendant which disclosed a .38-caliber revolver in defendant's pocket. The weapon had five live cartridges and one spent cartridge. He then took defendant to an office adjacent to the front desk where he conducted a further search and discovered a .25-caliber automatic which was loaded with six bullets. Both weapons and the ammunition were received in evidence.
A short time later Officer Kozak observed Samuel Bressi standing in an office adjacent to where defendant was being held, and Bressi stated defendant was the man who had shot at him.
Chicago police officer James Gaynor, assigned to the Chicago Police Department Crime Laboratory, Firearms Identification Unit, testified that he test-fired a bullet from the .38-caliber gun taken from defendant and compared it with the portion of the bullet recovered from the elevator by Officer Kozak. Based on these tests, in his opinion, both bullets were fired from the same weapon.
Outside the presence of the jury, the parties stipulated that on November 14, 1972, defendant entered a plea of guilty to burglary and was released from the penitentiary within 5 years of the occurrence of the offense specified in section 24-1(b) as alleged in the indictment in this case. The jury was instructed that the State had to prove that defendant knowingly carried a pistol or pistols concealed on or about his person. By agreement, the previous burglary conviction of November 14, 1972, was not brought to the attention of the jury.