APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Donald Higgins, was found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2) and aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4). He was sentenced to a term of 7 to 21 years for armed robbery and to a term of 2 to 6 years for aggravated battery, the sentences to run concurrently.
On appeal, defendant contends: (1) the trial court committed prejudicial error in refusing to consolidate three separate indictments for a single jury trial; (2) the trial court erred in restricting the examination of three defense witnesses; (3) the State committed prejudicial error when it failed to comply with the discovery requirements of Supreme Court Rule 412(a)(vi) (Ill. Rev. Stat. 1977, ch. 110A, par. 412(a)(vi)); (4) the State committed prejudicial error when it elicited from defendant on cross-examination the fact that a potential defense witness was in jail at the time of trial; (5) the trial court compounded the previous error when it refused to allow defendant to disclose the circumstances surrounding the arrest of the potential defense witness; and (6) the defendant was improperly convicted for both aggravated battery and armed robbery.
We affirm the trial court.
Three separate indictments charged the defendant with robbing employees of the Irving Hotel on August 28, September 1, and September 28, 1974, while armed with a dangerous weapon. Although the record is not entirely clear as to the substance of all three indictments, it does disclose the following:
Charge: Armed Robbery Offenders: Defendant & Larry Thompson Place: Irving Hotel Date: August 28, 1974 Victim: Desk clerk Lonnie Sartin Eyewitnesses: None
Charge: Armed Robbery Offenders: Defendant & Larry Thompson Place: Irving Hotel Date: September 1, 1974 Victim: Desk clerk Lonnie Sartin Eyewitness: Gussie Sanders
Charges: Armed Robbery & Aggravated Battery Offender: Defendant Place: Irving Hotel Date: September 28, 1974 Victim: Desk clerk Mattie Johnson Eyewitness: Gussie Sanders
Defendant presented to the trial court an oral motion to consolidate all three indictments for a single jury trial. In support of this motion, defendant's attorney stated:
"The place of the alleged armed robberies are all the same. The victims and witnesses by and large are all the same, and the police officers involved are all the same. Our defense, without disclosing and without prejudicing my client, if the Court would take my record, similar defense to the entire set of transactions, it would not be a question of disputing one or admitting one. It would be a question of one singular defense to all three transactions."
Defendant's attorney chose not to reveal the nature of the alleged defense which was similar to all three indictments. The only explanation offered was that "the defense would basically be the witnesses are lying for a reason."
In its response to defendant's motion for consolidation, the State argued: (1) that each armed robbery was a separate and distinct offense; and (2) that there was nothing to indicate a continuous course of conduct was involved. Following arguments of counsel, the trial court denied defendant's motion for consolidation. The State then elected to prosecute the defendant on the third indictment, which involved the September 28, 1974, armed robbery and aggravated battery charges.
In its discovery motion, the defense requested that the State disclose any prior criminal convictions "of those persons it intends to call as witnesses at trial." Prior to selection of the jury, the defense asked the State for its answer to discovery. The State informed the trial court and the defense that the discovery answer was being typed up and would be available as soon as it was completed. *fn1
Defense counsel then explained to the trial court why he had requested the criminal histories of the State's witnesses:
"[I]t would be unlikely I would get any response from the Police Department because I don't have any information other than their names and last known addresses. I have issued a subpoena in an attempt to try to do so. I hope before the witnesses, any state's witnesses or some of those witnesses take the stand, that the State would endeavor to make every effort to get their criminal history for me."
The trial court responded by stating:
"As soon as the witnesses are available I would be glad, on the record or provide you with the time to do so off the record, to inquire of each witness whether or not they have a criminal record.
You may also obtain their address, social security number and any other identifying information to assist you in that way.
Mr. Goldberg: Thank you."
At trial, Gussie Sanders testified that in September 1974 she worked as a maid in the Irving Hotel at 5615 South Prairie Avenue, Chicago, Illinois. On September 28, 1974, at approximately 1:45 a.m. Ms. Sanders was on duty and was standing in the hotel lobby. Mattie Johnson, the hotel clerk, was working in a nearby office.
A man, later identified as the defendant, appeared outside the glass lobby door with a gun wrapped in a suede coat. Defendant ordered Ms. Sanders to open the door. When she refused, the defendant kicked the door and broke the glass.
Ms. Sanders ran into the hotel office, slammed the door and held it shut while Ms. Johnson phoned the police. Defendant kicked the office door open, rushed in and with his gun struck Ms. Johnson above the left eye, knocking her to the floor. Defendant asked Ms. Johnson "for the key so he could get the money." Ms. Johnson responded: "[T]he key is hanging on the rack." Defendant grabbed the key, unlocked a drawer and "got the money out." After ordering Ms. Sanders and Ms. Johnson to lie flat on the floor for five minutes, defendant walked out the door.
Ms. Sanders testified that the defendant had been a tenant in the Irving Hotel six weeks prior to the robbery. She knew the defendant by two names, Donald Higgins and Donald Jackson. When police arrived shortly after the robbery, Ms. Sanders informed them that Donald Higgins, the defendant, had robbed Ms. Johnson. Later that same morning, at approximately 5 a.m., the police returned to the hotel with the defendant in their custody. Ms. Sanders identified him as the robber. Ms. Sanders also identified the defendant at a subsequent lineup and at trial.
On cross-examination, Ms. Sanders testified that she knew Lonnie Sartin, a desk clerk at the Irving Hotel. Ms. Sanders stated further that she had previously identified the defendant as robbing the Irving Hotel and Lonnie Sartin on September 1, 1974. Ms. Sanders also was aware that Lonnie Sartin had accused the defendant of robbing the hotel on August 28, 1974. Finally, Ms. Sanders denied any knowledge about alleged prostitution in the hotel.
Prior to the start of the second day of trial, the State was given leave to amend its list of witnesses to include the name of Billy Wright.
Defense counsel then informed the trial court that he was having a problem obtaining the criminal records of the State's witnesses.
"MR. GOLDBERG: Judge, I would also note that we still have the continuing problem now with Mr. Wright added of trying to get the criminal history of the people. I issued a subpoena yesterday with the new information I had about Mrs. Sanders. We would ask for a minute. We have had a chance to talk to Mrs. Johnson who is going to testify today. I have not been able to locate her myself. We would like another minute to get her social security number. We will issue another subpoena today on Mrs. Johnson's criminal history. We are going to have to ask Mr. Wright, we would like to be able to do the same thing with him.
MR. BEST: Certainly, Judge. I'll assist them in getting that information and I will assist them in getting the B of I if one exists. If it turns up that they do have a background I will do whatever I can to help make the people available should the defense see fit to want to recall them."
The State called as its next witness, Mattie Johnson. Before her substantive testimony was taken, the trial court, outside the presence of the jury, elicited from Ms. Johnson her social security number and birthdate. This information was obtained in order to facilitate the defense's effort to acquire Ms. Johnson's criminal record.
Ms. Johnson testified that on September 24, 1978, at approximately 1:45 a.m., she was on duty as a desk clerk at the Irving Hotel. Ms. Johnson stated that while she was sitting in the office writing, Ms. Sanders, the hotel maid, was standing nearby in the lobby. Ms. Johnson heard a man order Ms. Sanders to "open the lobby door." Ms. Johnson looked up and saw a man break the glass lobby door and enter the hotel. As Ms. Johnson grabbed the telephone to call police, Ms. Sanders ran into the office, closed the door and held it shut. When the intruder began pounding on the office door, Ms. Johnson ran over to help Ms. Sanders hold it shut.
The intruder eventually kicked the door open and entered the office. He struck Ms. Johnson above the left eye and ordered her to lie face down on the floor. The intruder accompanied his order with the following warning: "[B]itch, if you move I am going to blow your damn brains out." He was carrying a sawed off shotgun.
Ms. Johnson testified that although the intruder initially asked "where's the money," he already knew where everything was in the office because without any response from her or Ms. Sanders the intruder went straight to the drawer where the money was kept. After pocketing the money, the intruder stated: "[B]itch, you know I am not playing. You know me. You know me and you know I am not kidding." He then walked out the office door. Ms. Johnson was never able to identify the man.
Ms. Johnson testified that she began working at the Irving Hotel on September 14, 1974. At the time of the September 28 armed robbery, Ms. Johnson did not know the hotel had been robbed on August 28 and September 1, 1974. She also was unaware the defendant was implicated in those robberies. Ms. Johnson testified that she first met Ms. Sanders while working at the hotel. She did not meet Lonnie Sartin until after the September 28 armed robbery.
During defense counsel's cross-examination of Ms. Johnson, a vague reference was made to alleged prostitution at the hotel:
"Mr. Goldberg: During the two weeks you worked there Mrs. Johnson, you worked from 12:00 to 8:00 a.m.?
Q. Were there frequent people, were people coming in frequently checking in and out of the hotel?
The State called as its next witness, Billy Wright. Prior to the taking of his substantive testimony, the defense informed the trial court: (1) that it had exercised the opportunity to interview Wright; and (2) that it had solicited the State's Attorney's aid in attempting to obtain Wright's criminal record.
Wright testified that on September 28, 1974, at approximately 1:45 a.m., he was walking back to his room at the Irving Hotel. As he approached the front of the hotel lobby, he saw a man kicking the lobby door. Wright was questioned further on this point:
"Q. Now, what, if anything did you notice that was unusual about that man that was kicking the door?
A. Well, I tell you I didn't stay * * * there too long to find out.
A. Well, looked like I seen the barrel. I just * * * took off. I said forget it.
Q. What was it that you saw the barrel to?
A. I don't know. Looked like a shotgun, a rifle or something."
Wright was unable to identify the man.
On cross-examination, Wright admitted: (1) that he had consumed one-half pint of vodka before returning to the hotel that morning; and (2) that he did not know the precise date the incident occurred. Defense counsel questioned Wright on what ...