APPEAL from the Circuit Court of Cook County; the Hon. JAMES
N. SULLIVAN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants were convicted of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2(a)) and sentenced, respectively, to terms of eight to 24 years and five to 15 years in the Illinois Department of Corrections. On appeal they contend that they were denied a fair trial because: (1) the State failed to furnish to them before trial information concerning exculpatory evidence and the trial court erroneously denied their motion for a continuance, and (2) the jury was improperly influenced by certain remarks made by the trial judge.
The trial commenced on July 12, 1976, when eight jurors were selected. On the next day defendants moved for a mistrial, or, alternatively, a continuance, but were not heard on that motion until after jury selection was completed. They then argued that although they had requested, in their motions for discovery, information regarding any lineups, and had been told by the State that no lineups were held, the State had just that morning tendered to them police reports which indicated that two of the State's witnesses had failed to identify defendants at a lineup which was held on March 3, 1976. The State admitted to informing defendants' counsel that, to the best of its knowledge, no lineup had been held, and stated that the police reports concerning the lineup had just come into its possession that morning and had been immediately tendered to defendants' counsel. The motion for a mistrial or a continuance was denied, but the court granted defendants 30 minutes to examine the newly produced police reports. The trial then resumed and the following pertinent evidence was adduced.
Gene Vorreyer, a McDonald's employee
On March 2, 1976, at approximately 9:17 p.m. he was working as a cook in back of the McDonald's restaurant on West 211th Street in Matteson, Illinois, when the back door opened and two men, one of whom carried a shotgun, entered. One of the men searched him and took his wallet and his knife. The other man came out of the back carrying his C.B. radio. He looked once very quickly towards the front of the restaurant and saw two other black males, but he could not give any identifying characteristics about them.
Diane Capulsinski, a McDonald's employee
She was at the front counter of the restaurant taking orders when she looked up and saw that people were going under tables. Defendant Mahaffey was standing in front of her holding a shotgun, and defendant Dunn was standing at the front door with a small gun in his hand. Mahaffey ordered her to open the cash register and put the money in a bag. After she opened the register and pulled the drawer onto the counter, he took the bills out and put them in a bag. He ordered her to open all the other registers, but she told him she could not open the last register because the manager had the only key. He told her to "hurry up and get it or I'll blow your head off." She went to the back of the restaurant and saw Mary Schulz and others sitting on the floor while two men were taking money out of the safe and putting it into a sack. When she said that she had to get a key, one of the men pointed his shotgun at her and ordered her to sit down. One of the men then started running around carrying a C.B. radio and saying that he "found a C.B." The men took the money and left. Neither of those two men were in court.
On cross-examination she admitted that although she heard someone say "hit the floor," and saw people go down, she did not see who gave the command.
Carolla Utermark, a McDonald's employee and Mary Schulz, McDonald's night manager
They substantially corroborated the testimony of the other employees. Utermark added that she heard a man who she identified in court as defendant Dunn say, "Don't anybody move. This is a holdup." After the two men who had been in the back of the restaurant left, Schulz locked the doors and called the police.
On cross-examination Utermark admitted that although she had attended a lineup on March 3, 1976, and was closer to that lineup than she was to defendant Dunn at trial, she did not identify him as being in the lineup. She also acknowledged that she did not see defendant Mahaffey enter the store, or that he had anything in his hands. Schulz also admitted that she had attended a lineup on March 3, 1976, and although defendant Mahaffey was in that lineup, she failed to identify him.
Keith Kelosey, Neal Chance and Robert Drexel, customers
They were standing or sitting at the front of the restaurant when defendants Mahaffey and Dunn entered and the robbery occurred. Dunn tapped Kelosey on the shoulder and said, "This is a hold-up" and Kelosey responded, "you're kidding." Dunn turned him around, said, "I'm not kidding," and shoved a pistol in his face. Defendant Mahaffey came up behind Drexel, said "freeze," and without his permission took the change from his dollar which had been on the counter. Kelosey and Chance identified defendant Dunn's weapon as a dark colored handgun which looked a lot like People's Exhibit No. 1. All three customers obeyed defendants' orders to get on the floor and not to move.
On cross-examination Chance acknowledged that he gave a description of the defendants to the police on the night of the robbery, saying that one of them wore a turquoise stocking cap, and the other wore double knit green pants, a black coat and hat, and high heel platform shoes. He admitted that he saw Mahaffey during the robbery for approximately 30 seconds, but did not see him holding a weapon, nor did he see either defendant take any money. Drexel likewise acknowledged ...