APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of Cook County, the defendant, Frederick C. Williams, was convicted of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2), aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4), and attempt murder (Ill. Rev. Stat. 1975, ch. 38, par. 8-4(c)(1)). He was sentenced to 40 to 140 years imprisonment. Defendant appeals the convictions and sentencing, alleging that numerous errors committed by the trial court during the course of proceedings severely prejudiced his right to a fair trial and, thus, entitle him to a reversal.
The issues raised on review are several and concern the correctness of the trial court's determination of various objections raised by defense counsel during the course of the trial.
The facts unfold as follows: On April 22, 1974, at approximately 4 a.m., Bruno Augustine, a bakery truck delivery man, was robbed and shot three times in the head with a .22-caliber revolver while he was inside his truck preparing a delivery order. The defendant was arrested shortly thereafter and subsequently charged with the offense.
On the day the trial commenced, the People moved to amend their answer to discovery to include a wristwatch taken from the defendant at the time of his arrest. The defendant objected although he had been notified of its existence at least 2 days prior to the jury selection, at about the same time the People also became aware of its existence. The trial court allowed the motion to amend, and the defendant attributes error to this determination.
Bruno Augustine testified that at about 4:15 a.m. on the morning in question, a 20-year-old male, who was identified as defendant, entered the back of his truck while he was preparing to make a delivery and announced a "stick-up." Augustine was told to lie down on the floor of the truck while the assailant took his wallet, money, and wristwatch and then shot him three times in the back of the head. Augustine further testified that during this time he looked at defendant several times: once when he was told to lie down, again when he told him where his money was, and once again when defendant took his wristwatch. Augustine also testified that the bullets were not removed from his head because to do so would have been too dangerous. The defendant objected to this testimony and was overruled. Over defendant's objection, Augustine was then permitted to testify as to the uniqueness of the watchband on the watch which was taken from him and to make comparison with the watch he was wearing at the time of trial. The court stated in overruling the defendant's objection that "We all know that this is his watch." At this point, the defendant made a motion for mistrial, alleging judicial bias. The motion was denied, and the defendant ascribes error to this determination and the overruling of his objections.
Augustine's truck was parked in front of Edwin Czyz's sandwich shop as this was his first delivery stop for the day. Czyz testified that he saw Augustine park his truck, open the door, and go to the back of the truck. A few minutes later he saw someone cross the street and enter the truck. He then heard three shots and saw the defendant exit the truck with a gun in his hand, looking to the right and left, and then proceeding north on Damen Avenue. He testified that he told the police officer that the assailant was a young man, between the ages of 20 and 24, weighing 150 pounds, and wearing a stovepipe hat with a red plume and a long fabric coat with dark clothes underneath. At approximately 5:30 a.m., Czyz was taken to the police station to view a lineup in which the defendant was a participant. Before the lineup could be completed, the first man in the lineup stepped forward and said, "Let's cut this out. I shot the dude." Defendant objected to this testimony because Czyz was not indicated on the prosecution's answer to discovery as a person who was present at any oral statement of the accused. The objection was overruled and defendant attributes error thereto.
On the second day of trial, defendant moved for a mistrial because an article in the Chicago Tribune, a daily newspaper, misstated some of the testimony given during the trial. The motion was denied. The trial court cautioned the jurors against reading articles in the newspapers and asked the jurors collectively whether they had read the particular article. He received no response and denied defendant's request to question the jurors individually as to whether they had read the article. The defendant attributes error to these rulings.
Officer John Butler, an evidence technician for the Chicago Police Department, testified that he had found no fingerprints belonging to defendant in his examination of the truck. The police report containing this information had not been given to defendant prior to trial. The trial court overruled defendant's motion for mistrial on that basis and defendant attributes error thereto.
Officer Louis Klisz testified that he was on patrol with Officer Topczewski at approximately 4:20 a.m. when, in response to a radio communication, they entered an alley between Oakley and Leavitt as a man exited the rear of 2231 West 23rd Place and crossed in front of the car. Klisz described him as 5 feet 9 inches in height, weighing about 150 pounds, wearing a black stovepipe hat and a long overcoat. Over defense objection, the officer testified that the person "looked" at him, or in his direction, and dropped an object on the ground. Officer Klisz identified the defendant as the man he saw in the alley. Officer Klisz's partner, Officer Topczewski, began chasing defendant through the gangway. Officer Klisz recovered the dropped object which turned out to be a fully loaded .22-caliber pistol. Officer Klisz testified that two of the bullets were used for ballistics tests at the crime laboratory, but the reports of the ballistics tests were not available.
Officer Topczewski then testified that after chasing the defendant through the gangway two other police officers seized him as he emerged on 24th Street. Topczewski read the defendant his Miranda rights.
Officer Broderdorf testified, over defendant's objection, as to the details of two radio communications he received while on patrol. The offender was described in the communication as a Negro male, 5 feet 9 inches in height, wearing a black stovepipe hat and a long coat. The court overruled the defendant's objection to the testimony because the messages were not introduced to show the truth of their contents but only to show that they were, in fact, made; hence, the testimony was not hearsay. Officer Broderdorf then testified that search of the defendant uncovered a watch, $171.98, and two .22-caliber bullets.
Investigator Terrence Fabino next testified that he talked to the defendant at the police station at about 5:45 a.m., gave him his Miranda rights, and conducted the lineup at which Edwin Czyz identified defendant.
Doctor Phillip Friedman of Illinois Research Hospital examined Bruno Augustine in the hospital's emergency room on April 22, 1974. He found that the three bullets had fragmented and that their removal was ill-advised, although not fatal.
The defendant's motion for directed verdict was denied, and the defense called Officer Henry Porter. Defendant's motion to have Officer Porter called as a hostile witness was denied. Officer Porter testified that he talked to Augustine and Czyz at the scene of the shooting, and that Augustine had described the offender as being about 6 feet in height. Officer Porter's police report indicated that the offender left the scene in an automobile driven by another person. On the witness stand, Porter could not clearly recall the source of information regarding the automobile because there were so many people around and "everyone was telling me something." He testified that he did not receive the information ...