APPEAL from the Circuit Court of Ogle County; the Hon. JOHN W.
RAPP, JR., Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
The defendants-appellants, Leo Mitchell, Anna Mitchell, Jimmy Mitchell, Steven Mitchell and Louis Mitchell, hereinafter the defendants, were charged by informations filed in Ogle County with armed robbery. During a bench trial, prior to a submission of the case to the court, the charges against the defendants, Leo, Anna and Louis Mitchell, were reduced to robbery pursuant to the State's motion. Thereafter, Leo, Anna and Louis Mitchell were found guilty of robbery, while Jimmy and Steven Mitchell were found guilty of armed robbery. On the robbery convictions, Anna Mitchell was sentenced to one year's probation; Leo and Louis Mitchell were sentenced to two years' probation plus 30 days' incarceration. On the armed robbery convictions, Jimmy and Steven Mitchell each received sentences of four years to four years and six months.
On appeal the defendants raise four issues: (1) Whether the trial court erred in denying the State's motion to reduce the convictions of Jimmy and Steven Mitchell from armed robbery to robbery; (2) Whether the trial court committed prejudicial error in limiting the cross-examination of the complainant, Lee Evans; (3) Whether the defendants were proved guilty beyond a reasonable doubt; and (4) Whether the trial court erred in denying the defense's motion for a new trial based on newly discovered evidence. After a review of the record and briefs, we find the defendants' contentions to be without merit, and we affirm the defendants' convictions.
It would unduly prolong this opinion to set forth a complete recitation of the unique facts and the surrounding familial background data of this case. Accordingly, to the extent possible, only relevant matter necessary to our disposition will be elucidated herein.
The complaining witness, Lee Evans, a Gypsy, testified for the State that during the late hours of November 22, 1975, he and his wife, Christine, were enroute from Chicago to Davenport, Iowa, on Route 5 (hereinafter the Tollway). As the complainant and his wife were proceeding westerly, they were forced over by a car with a red light and robbed at gunpoint of $1,500 and a diamond ring. In addition, the contents of the car were strewn about the highway and one of the tires of complainant's car was shot out. The complainant identified: Jimmy Mitchell as the person who pointed a rifle at his head and told him, "Don't move or I'll kill ya," and then shot out the tire; Steven Mitchell as the other person who had a rifle that evening; and Leo, Anna, and Louis Mitchell as all being present at the scene of this crime with Steven and Jimmy Mitchell. Following this occurrence, the complainant was taken to Rochelle by a passerby. The complainant, at that time, informed the police of the robbery. However, he did not tell the officers he knew the identities of the perpetrators until approximately seven hours later. On cross-examination the complainant stated that he was a Greek Gypsy, self-employed as a car salesman, and that he had known the defendants for about eight years and had been at various events and places with the Mitchells hundreds of times. He also acknowledged that the Evans and Mitchell families had an interfamily altercation at a wedding in November of 1975, allegedly due to the fact that the complainant had had sexual intercourse with the wife of one of the defendants.
Christine Evans, a Greek Gypsy and the complainant's wife, testified for the State that she did not have an opportunity to observe the robbers because she had fainted when she heard the shot. She stated that she was distantly related to the Mitchell family.
Sergeant Donald Job of the Illinois State Police testified for the State to the effect that a search of the Mitchell family residence in River Grove, Illinois, on November 26, 1975, had not produced either the proceeds of this robbery or any weapons.
Steve Evans, a brother of the complainant, testified for the State that he had received a telephone call in late November from Jimmy Mitchell, one of the defendants, in which Jimmy Mitchell stated he would kill the complainant if he came to court and that he would also kill Steve, himself. Steve Evans further stated that Jimmy Mitchell told him that he could have killed the complainant and his wife on the night in question but that he did not want to.
The defendants presented an alibi defense at trial. The defendants and other family members all testified that the defendants had been at the police station from 10 o'clock in the morning until approximately 8:30 in the evening of November 22, 1975, on an unrelated altercation with the Evans family which had occurred at a wedding earlier in November of 1975. The defendants and their friends had all returned to Anna Mitchell's residence at about 9 p.m. on November 22, where they all had remained until somewhere around 1:30 a.m. on November 23, 1975. The defense also presented various testimony concerning the disaffection which existed between the defendants' and complainant's Gypsy families.
The defense first contends that the trial court erroneously denied the State's motion to reduce the convictions of Jimmy and Steven Mitchell from armed robbery to robbery. The defense's contention is two-fold: First, that the convictions of Jimmy and Steven Mitchell for armed robbery are inconsistent both legally and factually in light of the other three defendants' convictions for only robbery; and second, that the State's request was in essence a motion to nolle prosse these charges after trial, which is within the State's power.
1 The principles in regard to inconsistency in verdicts are well settled. Generally, where there is a minimal difference in evidence relating to two persons who are tried together, the trier of fact may properly weigh the evidence and make the requisite allowance for such differences, and the acquittal of one is not grounds for reversal of conviction of the other. (People v. Patrick (1976), 41 Ill. App.3d 1037, 355 N.E.2d 224.) Similarly, it is only where the evidence in regard to each defendant is identical that the conviction of one and acquittal of the other can be said to be so inconsistent as to require reversal of a conviction on review. People v. Hardemon (1977), 46 Ill. App.3d 1052, 361 N.E.2d 680.
2 We think it is obvious that the evidence as to Jimmy and Steven Mitchell was not identical to that of the other three defendants. Jimmy Mitchell was identified by the complainant as having pointed a rifle at his head, threatened to kill the complainant, and then shot out a tire. Likewise, the complainant positively identified Steven Mitchell as the other person of the quintet who had a rifle during the robbery. On the contrary, the role of the other three defendants was passive and different from that of the other armed robbers. Under these circumstances, where the evidence was not identical in all respects as to all the defendants, the trial court was not barred from finding Jimmy and Steven Mitchell guilty of armed robbery where the evidence supported such a determination beyond a reasonable doubt. People v. Stock (1974), 56 Ill.2d 461, 309 N.E.2d 19.
Secondly, the defendants contend that the State's post-trial motion was essentially a nolle prosequi motion as to the charges against Jimmy and Steven Mitchell. Prior to a discussion of the legal principles involved with this issue, it would be instructive to set forth the motion as it was presented by the State:
"MR. WOODS: Your Honor, it would be the motion of the State at this time on the cases of Leo [sic] and Jimmy who were convicted of armed robbery. It would be the motion of the State at this time ...