APPEAL from the Circuit Court of Cook County; the Hon. HOWARD
M. MILLER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant, L.C. Riley, was found guilty of the offense of armed robbery, for which he was sentenced to a term of 8 to 12 years. On appeal defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied a fair trial by the admission of certain hearsay testimony into evidence; (3) the trial court erred in not giving a limiting instruction to the jury, sua sponte, concerning the State's use of out-of-court statements to impeach a defense witness; (4) the State improperly elicited the names of potential defense witnesses on cross-examination and then improperly commented upon the failure of the defense to call those witnesses; (5) he was denied a fair trial both by the State's improper questioning of defense witnesses and by its improper closing arguments to the jury; (6) defense counsel was incompetent; and (7) his sentence is excessive. We reverse and remand. The pertinent facts follow.
Pearlie Webster managed the Roseland Record Shop at 10657 South Michigan, Chicago. Rose Watkins also worked at this record store. Ms. Webster stated that on June 7, 1974, at approximately 6 p.m., she, her son, and Ms. Watkins were in the store when three men entered.
One of the men, whom Ms. Webster identified as defendant, walked up to Ms. Watkins and put a gun to her head, announcing a "stick-up." He told one of his accomplices, who was carrying a butcher knife, to get the cash register, which Ms. Webster opened. She stated that $105 was taken by the man.
The witness also testified that she had seen defendant several days prior to the robbery when he had tried to get her to open the door after the store had closed so he could buy a record. Defendant wore jeans and a purple shirt during the robbery. He was the one who was giving all the orders. Ms. Webster, her son, and Ms. Watkins were all ordered into the back room of the store and told not to come out until after defendant left. They did so, only returning after they heard the front door close. The knife had been left by the cash register. When the police came, both Ms. Webster and Ms. Watkins spoke with them and gave them information.
Ms. Webster attended a lineup sometime around June 15, 1974, but she was unable to identify anyone. On July 17, 1974, she was shown five to eight pictures by Officer Dennis Cullom, of the Chicago Police Department. Cullom was alone when he showed her these photos. She picked out defendant's photo as being that of the gunman in the robbery.
Officer Rowland of the Chicago Police Department responded to the robbery call, along with his partner, on June 7. When they arrived they were unable to talk with Rose Watkins because she was very upset. However, Pearlie Webster was able to give the officers a description of two offenders, both black males. One was 5'5" tall, 145 pounds, in his early 20's, with black hair, brown eyes, and a dark complexion. He wore a purple shirt and carried a blue steel gun. The other man, who carried the knife, had a light complexion, black hair, and brown eyes. He was 5'9" tall, 160 pounds, and about 20 years old. The officers located the butcher knife which had been left near the cash register in the store, but no fingerprints were found suitable for identification.
Officer Dennis Cullom testified that when news of the robbery and a description of the offenders was broadcast, he and his partner toured the area. On July 2, nobody had yet been arrested for the robbery. On that day Cullom saw defendant, whom he knew, in a schoolyard at 101st and Indiana. He asked defendant about the robbery, and defendant said that he had been asked to participate, but had not done so.
Defendant told Cullom that Jimmy Rogers had been the gunman, and James Edwards, also known as James Wiggins, had jumped over the counter to scare the women. Someone named Tiko was also involved. The offenders fled in a car to Wiggins' house, where they split the proceeds of about $100. Defendant indicated that the reason the record store was robbed was because it was thought to be an easy target, since women worked there.
Based on this conversation Rogers and Wiggins were arrested. Both suspects were identified by Ms. Watkins in separate lineups. Cullom "believed" that Ms. Webster was also present at these lineups.
As a result of unsuccessfully trying to locate the individual called Tiko, the officers decided to have the victims view a number of photos, including one photo of defendant. Both Ms. Webster and Ms. Watkins identified defendant from his photo as one of the participants in the armed robbery.
Defendant testified in his own behalf that he had at various times purchased records at the Roseland Record Shop and both Pearlie Webster and Rose Watkins had waited on him. However, he denied ever going to the shop after it was closed and trying to persuade Ms. Webster to open the door. He also denied going there at all on June 7. Defendant stated that on that date he did not own a gun, and he was not with anyone who had a gun or a knife. He denied talking to anyone about a robbery on June 7.
Defendant stated that early on the morning of June 7 he and his girlfriend, Natalie, picked up his daughter and brought her to her grandmother's house. Defendant then went to the home of two brothers, Freddie and Frederick, at 106th and State to prepare for a party. With the exception of a brief shopping trip, he spent the rest of the day at this house. He was there between 5 and 7 p.m., and remained until 11:30 p.m. when he left with Natalie. At the time of the robbery he was with Natalie, Freddie, and Frederick. Freddie and Frederick were both in prison at the time defendant was on trial.
Defendant also testified that he knew Officer Cullom, having been arrested by him several times. On July 2 he saw Cullom at a schoolyard. At that time two "guys" dropped a bag of marijuana near defendant's foot, so the officers arrested all three of them. Cullom asked about the June 7 robbery and implied that he would not charge defendant with the marijuana offense, in exchange for information. Defendant insisted to Cullom that he knew nothing about the robbery. Defendant thought he was ultimately arrested that day on a disorderly conduct charge.
Defendant said that he did not own a purple shirt, but he did have a burgundy one. He denied knowing Edwards or Tiko and said that he first learned about the robbery when he was arrested for disorderly conduct. He stated that the ...