APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The appellant Mendoza was charged with another defendant, Ayala, in September 1975 with the May 30, 1975, armed robbery of Fidel Balcazar. Prior to trial both defendants moved to suppress as evidence objects *fn1 seized by the police after the defendants' arrest claiming the seizure was illegal. This motion was denied after an evidentiary hearing. The defendants each waived their right to a jury trial. The court found them guilty of the lesser-included offense of robbery. Both defendants were sentenced to a period of from one to three years' imprisonment in the Illinois State Penitentiary. Only the defendant Mendoza has appealed.
On his appeal Mendoza contends:
(1) that the judge erred in finding the seizure of the objects proper and therefore in refusing to suppress them as evidence.
(2) that the judge erred in allowing the admission of certain knives in evidence although there was insufficient evidence to connect them either to the crime charged or to the defendant.
(3) that the appellant's guilt was not shown beyond a reasonable doubt.
Since if the latter contention is true, we need not consider the others but must simply reverse without remanding for a new trial, we will consider the defendant's contentions in reverse order.
Because of the nature of the contentions raised we believe it desirable to set forth the facts of the crime and subsequent events in considerable detail. At trial the People presented the testimony of Fidel Balcazar, the victim, Marco Luevano, the victim's brother-in-law and Officer Lara. The defense also presented testimony by Officer Lara. Additionally, the defense presented the testimony of Officer Delfinio Bustos and each defendant took the stand in his own behalf.
Fidel Balcazar testified, through an interpreter, that on May 30, 1975, he lived at 2843 West 22nd Place with his family. On that date around 11:30 in the evening he was walking alone west on 22nd Street to his house on the south side of the street. When he got to within three houses of his own, he was stopped by five Mexicans who had been behind him. Two of them grabbed him and told him to give them his money. The other three got in front of him. Of the two who grabbed him, one grabbed his arms, and the other put a knife to his left side. The men in front of him were three feet away, closer when they came for the money, and were 17 to 19 years old.
Balcazar described the clothing of the three men who were in front of him. One "had a pink shirt, short and blue slacks, had a little bit of mustache, not too much goatee, just a little bit here (indicating)." Balcazar identified this one as defendant, Ayala. The man in the middle was bigger with a light shirt, dark slacks and handkerchief on his neck. The man in the middle, however, was not in court. The third man, whom Balcazar identified as defendant Mendoza, was wearing "dark brown slacks and a shirt, `T' shirt, brown, and a shirt with his short." He was also described as white, thin, with a goatee and mustache.
When the individuals approached Balcazar, they wanted his money. They came near and tried to take it out of his pockets. As they started to go through his pockets, Balcazar tried to get away and fight them. The two held him and three hit him on his body. When he was on the ground, they kicked him. In addition to taking his money and wallet, his assailants took his gold Timex calendar watch with a white band. Balcazar saw his attackers running east and after 1 to 1 1/2 minutes, he gave chase. They got into a car parked at the corner. Balcazar knocked on the window and said he wanted his wallet and documents back. Someone told him to face the wall and tossed him his wallet. He could not see their faces because they were ducking down. Balcazar then went home. When Balcazar got home he saw his brother-in-law, Marco Luevano, standing in front of his home. Luevano said he would call the police.
Balcazar also described the lighting conditions where he was robbed. In the door of his house, three doors down, there was a light. There are street lights 25 to 30 feet apart along the street. The first light was about 20 feet away from where he was robbed, or about half a house away.
The police did not come until May 31. That afternoon he spoke with two uniformed police officers for about 10 minutes and Balcazar told them he had been robbed and his watch had been taken. The officers made a report. About an hour later, Balcazar saw two other policemen and spoke with them about 10 minutes. One of them was Officer Lara. Two to 2 1/2 hours later, Lara came back to Balcazar's house and showed him a watch and asked him to come to the police station to see some men. Balcazar identified the watch as his. Balcazar described the watch as gold with a white band and loose head. It also couldn't be wound very well.
About 45 minutes after his second conversation with Lara, Balcazar went to the police station. At the station he went into a small room. A door was opened and he saw eight men all lined up. He recognized two of them, Ayala and Mendoza. The two were wearing the same clothes they had been wearing the night before when they beat him up.
On cross-examination Balcazar testified that on that night he was coming home from a movie. Balcazar heard but did not see the five men behind him until they grabbed him. The first time they hit him was when he tried to break loose. Between being grabbed and being struck the first time was about two minutes. Balcazar stated none of the three men in front of him had knives. He also said that he never saw the knife at his side or any weapons all that evening. Balcazar testified that he remembered what the three men in front of him were wearing but did not remember telling Ayala's attorney differently at a pretrial meeting. Balcazar admitted never giving Officer Lara or any other officer a description of the assailants' clothes.
The description Balcazar gave the uniformed policemen was of male Mexicans of average height and weight with long hair. Balcazar stated that he had told defense counsel that long hair went to the shoulder. He also stated, though, that "[n]one of them had hair like mine which that is what I believed to be short hair." Later on he stated that he felt all the men in the lineup had long hair. Balcazar went on to say that Ayala did not have shoulder-length hair at the lineup. Balcazar said that one man had a mustache and another had a mustache and a "beard here." In describing "here," Balcazar touched his chin area only. The man with the mustache had a little hair on his chin. Only two of his attackers had shoulder length hair, but almost all of them had hair below the neck. One of the men with long hair was the large man in front of him. Balcazar stated that his attackers were about 5'8" and 160 and 180 pounds except for the bigger man in front. The larger man was 3 or 4 inches taller. Balcazar didn't "get to know" the larger man well but said he did get that chance with the other two in front of him, the defendants, because they came in close to take his money.
Marco Luevano testified that on May 30, 1975, he was living on 2943 West 22nd Place. Around 11:30 at night he got a phone call. The caller did not identify himself. The call lasted about 15 seconds. After the call, he ran out in the street and about 10 to 15 feet away he saw his brother-in-law, Fidel Balcazar, who was "pretty well beat up" and holding himself by a fence. Luevano saw no one else on the street. He ducked down when he saw a black-over-red Pontiac coming westbound. The car was going fast. There was one other car on the street going east. As the westbound car passed he took down the license plate number, WE 5884. Luevano further testified that Balcazar told him nothing about banging on the car window or asking for his wallet back. However, Luevano did say Balcazar told him that about five "guys," one with a knife, beat and robbed him. Luevano did not see his brother-in-law wearing his watch when Luevano saw him although he knew his brother-in-law did wear one. He also testified that he had not seen People's Exhibit 1 for identification, the watch, before.
After helping Balcazar back to his house, Luevano called the police who did not respond. After returning from work the next day, Luevano called the police again. About 30 minutes later two policemen arrived. Luevano spoke with them, told ...