APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The defendant, Melvin Timms, was indicted for the armed robbery of Raphaelda Whalen. Following a jury trial he was convicted on that charge and sentenced to four to 12 years in the Illinois State Penitentiary.
On appeal defendant contends his conviction should be reversed because his guilt was not proved beyond a reasonable doubt. Alternatively he seeks a new trial on the following grounds: the trial court abused its discretion by denying defendant's motion for a continuance to secure certain witnesses; he was prejudiced when the trial court erroneously told the jury he was indicted for attempt murder; the prosecution's examination and argument together with police officers' testimony referring to another crime were prejudicial; he was denied effective assistance of counsel. Finally defendant contends that his sentence was excessive.
We reverse and remand for a new trial.
Two eyewitnesses, Raphaelda Whalen and Reginald Kirby, testified for the State. Mrs. Whalen, 68 years old at the time of trial, testified that on January 16, 1970, she was working as a clerk in a grocery store at 12315 South State Street in Chicago. At about 2:15 or 2:30 that afternoon Reginald Kirby came into the store and she cashed his check for him. They had been talking for a few minutes when a young black man came into the store and walked up to the checkout counter where Mrs. Whalen was standing. He asked for a package of Kool cigarettes, paying for it with a $10 bill. As Mrs. Whalen gave him his change, the man pointed a silver pistol at her and demanded all her money. She took all the bills from the cash register and threw them on the counter. The man then pointed the pistol at Mr. Kirby, who also laid his money on the counter. Mrs. Whalen screamed and the man said to get on the floor behind the counter. The man put the money in his jacket and fled. The police were called and when they arrived Mrs. Whalen described the man as a young Negro, about 25, weighing about 135 pounds, height about 5'3" or 5'5". He wore a black leather jacket and dark pants, was clean-shaven, without a moustache and his hair was cut short. She had observed him for a total of two to three minutes. The following day she identified the defendant in a lineup. The police at that time also showed her two guns and she told them one looked like the gun which had been used in the robbery. Mrs. Whalen identified the defendant in court as the man who had robbed her.
Mr. Kirby also testified that he was in the store at about 2:15 or 2:30 talking to Mrs. Whalen after having cashed his paycheck. At that time a black man, identified in court by Mr. Kirby as the defendant, walked in. After buying a pack of Kools the man pointed a silver automatic pistol at both Mr. Kirby and Mrs. Whalen and demanded their money. They put the money on the counter and defendant put it in his pockets. He ordered Mr. Kirby to go to the end of the store, and then fled. When the police arrived Mr. Kirby described the man as a male Negro about 5'4" or 5'5", weighing about 135 pounds, wearing a black leather jacket and dark pants. Mr. Kirby also testified that the man was clean-shaven and had no moustache, but he did not tell the police this because they did not specifically ask. During the robbery he observed the man's face for about five minutes. The following day he did not observe a lineup but he was shown one gun which he told the police looked like the weapon which had been used.
Police Officer Richard Ehrmann testified that on January 17, 1970, he and his partner were on duty in a squadrol when they received a radio message describing a car. They spotted a car fitting the description and curbed it at 111th and King Drive in Chicago. As they approached they saw a nickel-plated .32 automatic, silver in color, on the floor of the car. Three men were in the car, including the defendant who was in the back seat with the gun next to him. The three men were ordered out of the car and taken to the police station. At the station a search of the car was made and another gun was found in the glove compartment. Both guns were loaded. According to Officer Ehrmann he was unable to obtain those weapons for production in court because on the date of his trial testimony he discovered that they had been destroyed pursuant to court order. Officer Ehrmann could not recall what defendant was wearing when he was arrested but he did testify that defendant was clean-shaven, with no moustache or beard.
Investigator James Doyle testified that he conducted the lineup at which Mrs. Whalen identified the defendant as the man who had robbed her. Four other men, all black, were used in the lineup. Two were police officers in plain clothes and two were the men arrested with the defendant. They were all 21 to 24 years old and ranged in height from 5'6" to 6'1". Doyle recalled that defendant was wearing a black leather jacket at the time of his arrest.
Defendant presented an alibi defense. His mother, Julia Timms, testified that all day on January 16, 1970, defendant was with her at her home in Pembroke, Illinois, which is located about 65 miles from Chicago. Defendant was on leave from the army and had to return the next day. His wife, Yvonne, was pregnant and was staying with Mrs. Timms. Mrs. Timms testified that at 2 p.m. that day the other people she remembered being there were her son, Peter, Yvonne, and defendant. Her husband, Austin Timms, a minister and the mayor of Pembroke, was "in and out" and she could not recall whether he was there at 2 p.m. Her son Ray and his wife Mona would get home around 4:30 p.m. Her daughter Bessie left for school at 7 a.m. and returned at 3 p.m. The next morning at 7 a.m. Bruce Ray picked up the defendant to take him to the airport. Mrs. Timms recalled that at the time defendant had a moustache though it "probably was light."
Yvonne Timms, defendant's wife, also testified that she was with defendant all day on January 16, 1970, at the home of Mrs. Timms. Also there all day were Bessie, Ray, Peter and Austin Timms. Ray's wife, Mona, was also there that day. At 7 the next morning defendant left for Chicago with Bruce Ray.
Defendant testified that on January 16, 1970, he was at his parents' home in Pembroke all day. His home at the time was at 1156 E. 131st in Chicago, in the Altgeld Gardens housing project, but he was stationed with the army in Colorado and was staying with his parents on vacation leave. Also at his parents' home that day were Yvonne, Bessie, Peter, Ray and Mona and defendant's parents. The next morning Bruce Ray picked up the defendant to take him to O'Hare. The car broke down in Chicago on the Dan Ryan and defendant took a bus to Altgeld Gardens. There he contacted an acquaintance, Norbert Scott, who agreed to take defendant to the airport. Scott told defendant that he first had to pick up some things for his wife. Scott and defendant, accompanied by a third man, Darryl Ransom, then drove to the area of 115th and Michigan. Scott parked the car there and got out. Defendant, who had also gotten out, was looking at several stores while waiting for Scott to return. He then saw Scott yelling and waving his arms near the car and then saw him enter the car and begin to drive away. Thinking they were joking with him, defendant ran to the car and jumped into the back seat. After a short distance the car was stopped and the three occupants were arrested. Defendant did not see a gun in the car, only seeing one when a policeman took it from the car. Defendant testified that at the time he had a light moustache and a light goatee. He did not own and was not wearing a black leather jacket. Defendant further testified at the time of trial he was 5'5 1/2" and weighed 135 to 140 pounds.
1, 2 Defendant's first contention is that his guilt was not proved beyond a reasonable doubt. Two eyewitnesses to the robbery positively identified the defendant as the man they saw. They testified to giving descriptions which matched that of the defendant. Although defendant maintained that contrary to their descriptions he had a light goatee and moustache at the time of the offense, their description of him as clean-shaven was corroborated by Officer Ehrmann. Nor does the police photograph of the defendant show a clear moustache or goatee. Furthermore, where an identification is positive, precise accuracy in describing facial characteristics is not essential. (People v. Marbley (1975), 34 Ill. App.3d 434, 340 N.E.2d 247.) The day after providing this description Mrs. Whalen identified the defendant in a lineup consisting of five men of the same race and the same general age range. The record does not clearly establish whether, as defendant alleges, he was the shortest man by four inches in that lineup. But even if this was true, we have held that such height differences are not unnecessarily suggestive. (People v. Wyatt (1974), 23 Ill. App.3d 587, 319 N.E.2d 575; People v. Scott (1974), 20 Ill. App.3d 880, 314 N.E.2d 671.) Defendant also contends that Mrs. Whalen's in-court identification was tainted because she had seen him in three prior court appearances. This factor only went to the weight to be given to her identification at trial. It should be noted that the trial court allowed defense counsel great latitude in minimizing prejudicial factors ordinarily attendant in such in-court identifications: Mrs. Whalen was first asked if she saw the man who robbed her when defendant was not present in the courtroom; then with defendant sitting in the gallery she was again asked the question. It was only at that time that she pointed out defendant. Mr. Kirby also identified the defendant in court.
3 It is defendant's position that his alibi testimony, corroborated by two other witnesses, cannot be ignored. In support of this proposition he cites People v. Gardner (1966), 35 Ill.2d 564, 221 N.E.2d 232. But in Gardner the court spoke of not disregarding defendant's alibi only in the context of what they had determined was a weak identification by a single witness. Also in that case defendant's alibi was corroborated by physical evidence, a theater ticket which tended to show that he had been elsewhere when the crime occurred. Certainly there is no general obligation on a trial court or jury to believe alibi testimony instead of the positive identification of state witnesses. (People v. Jackson (1973), 54 Ill.2d 143, 295 N.E.2d 462; People v. Whitley (1977), 49 Ill. App.3d 493, 364 N.E.2d 511.) The jury did not have to ignore the testimony of defendant and his family members in order to ...