APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, James Johnson, and his co-defendant, Frank Lee, who is not a party to this appeal, were indicted for armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2) and tried before a jury in the circuit court of Cook County. After jury selection, and in the course of hearings on pretrial motions, Lee failed to reappear in court. The trial court denied defendant's motion for a mistrial and the trial continued in Lee's absence. Defendant was found guilty and sentenced to a term of 4 to 8 years of imprisonment. Lee was also found guilty and sentenced to a 7- to 18-year term.
Defendant appeals, contending: (1) the trial court's failure to grant a mistrial denied defendant a fair trial; (2) the trial court erred in denying defendant's motion to quash his arrest and suppress identification testimony; (3) improper cross-examination and closing argument by the prosecutor denied defendant a fair trial; (4) the State failed to prove defendant guilty of armed robbery beyond a reasonable doubt; (5) the trial court erred in giving an instruction on the recent possession of stolen property; and (6) the sentence was excessive.
We affirm defendant's conviction and sentence for armed robbery.
Prior to trial, the court heard defendant's motions to quash his arrest and suppress identification testimony. On November 10, 1976, the second day of the pretrial hearings, co-defendant Lee failed to appear in court. In accordance with the procedure for absent defendants, the court continued the proceedings for the statutory two-day period. (Ill. Rev. Stat. 1975, ch. 38, par. 115-4.1.) When the court reconvened on November 12, 1976, Lee again was not present, and the court proceeded to hear testimony and deny defendant's pretrial motions. Defendant then moved for a mistrial based on Lee's absence. The trial court denied the mistrial but later admonished the jury not to consider Lee's absence as evidence against defendant.
The testimony adduced at the hearing on the pretrial motions was substantially the same as that given at trial. Steven Bradshaw, the complaining witness, testified that on August 1, 1975, at about 9:15 p.m., he parked his blue 1974 Buick Electra 225 in Ogden Park and got out to take a drink at a public fountain. Two men wearing straw hats approached Bradshaw at the fountain. One of the men, who Bradshaw identified before and during trial as defendant, said "hey man, put your keys over here." Bradshaw laughed until he looked up and saw that defendant held a .22-caliber revolver. Bradshaw turned over his keys. Defendant then demanded money but as Bradshaw reached into his pocket to oblige, defendant cocked the gun. The second man, identified by Bradshaw as co-defendant Frank Lee, reached into Bradshaw's pocket and removed about $10. Then Lee entered on the passenger side of the Buick, defendant took the wheel, and the two drove off. Bradshaw walked to the park field house where he told a policeman that two men had robbed him and taken his car. Bradshaw testified that his car had a reapplied-for city sticker slip on the front windshield.
Bradshaw next saw his car three or four hours later at the police station after being notified that it had been located. At that time he noticed some damage to the right front fender and rear of the car. The interior of the car was in disarray and two straw hats had been left inside. Bradshaw threw the hats away after recovering his car.
At the police station that night, Bradshaw viewed a six-man lineup from which he identified defendant and Lee. At trial he identified defendant and Lee from a photograph of that lineup. Bradshaw described defendant as dark skinned, 5' to 5'6" tall and 130 to 140 pounds. Lee was tall and light skinned. He stated that he identified the men by their physical appearances rather than their clothing. On cross-examination, Bradshaw indicated that at the preliminary hearing he had confused the names, but not the identities, of the co-defendants.
Robert Bokowski, a Chicago policeman, testified that on the evening of August 1, 1975, he and two other plain clothes policemen, Carl Reid and Dennis Malloy, were patrolling in an unmarked police car. At about 11:45 p.m. they pulled along side a blue Buick at a red light. Reid noticed that the car had no Chicago city vehicle sticker and the officers made an attempt to stop the car. Reid honked the horn and Malloy held up his badge and motioned the car to pull over.
When the light turned green, the Buick pulled away from the light at a high rate of speed, 50 to 60 m.p.h., and the police officers followed. While in pursuit, the officers ran a check of the license plates on the Buick and obtained the name and address of the owner. Bokowski testified that Lee was on the passenger side of the front seat and that defendant was driving. Another individual, identified as Johnny Tarvin, was in the back seat. While attempting to make a left hand turn, the Buick went out of control and hit a post. The police stopped behind the vehicle. The Buick backed up and hit the police car and then angled across the street. Defendant left the car and ran about 30 feet before being apprehended by Officer Reid. Bokowski chased and apprehended Tarvin. Lee, who remained in the car, was apprehended by Officer Malloy. Traffic citations were issued for the stop and chase, and the occupants of the car were taken to the police station.
Officer Malloy, who testified at the hearing and at trial, added that when the police first pulled next to the car, he noticed that the Buick had no city sticker, but did have a piece of paper where the sticker should have been. Additionally, Malloy stated that Lee moved from the passenger side to the driver's seat of the Buick and attempted to pull the car away from the curb but hit a parked car before he was arrested.
Officer Reid described Lee as thin and taller than his companions, approximately 5'10", and 145 to 150 pounds with a light complexion. Reid testified that he saw straw hats in the back of the car during his preliminary search of the vehicle, but did not retain the hats.
Officer Raymond Komara testified that he conducted a lineup on August 2, 1975, at approximately 4:30 a.m. Prior to viewing the lineup, Bradshaw had related the details of the robbery to Komara and his partner. Bradshaw was then taken into the lineup room where he viewed six males of approximately the same height and weight, including defendant, Lee and Tarvin. Bradshaw pointed out defendant and Lee as the men who had robbed him. Bradshaw was not shown photographs before viewing the lineup.
Defendant testified on his own behalf that on the evening of the robbery he was at home watching television. His parents were also there. At 10 p.m., Frank Lee, a neighbor with whom defendant had been acquainted for five or six months, arrived and invited defendant to a party. Lee said that it would not be necessary to take a bus to the lounge where the party was being held because his friend Johnny Tarvin was waiting outside with a car. They left defendant's house and went out to the car at about 10:15 p.m. After being introduced to Johnny Tarvin, defendant got into the back seat of the blue Buick and Tarvin drove off.
As they drove to the lounge, three men in a car pulled up beside the Buick at a red light and sounded their car horn. One of the men pulled out a pistol and waived the Buick over. Defendant did not see anyone flash a badge. When the light changed, Tarvin sped away, driving 50 to 55 m.p.h. The other car pursued them, sounding a police siren.
Defendant testified that he told Tarvin to stop the car but Tarvin ignored him. Five or six blocks later, while attempting to turn down a side street, Tarvin hit a parked car. Immediately, Tarvin got out of the car on the left side; defendant got out of the back seat and exited through the left door. He raised his hands up in the air to prevent the police from firing at him. Defendant was arrested approximately five or 10 feet from the car. He stated that neither Lee nor he tried to run away. Defendant was transported to the police station with Lee. Tarvin was brought to the station 15 to 20 minutes later. It was only after he arrived at the police station that defendant learned about the robbery.
Defendant testified that when Bradshaw viewed the lineup, a police officer stood beside Bradshaw talking and pointing. Defendant denied that he robbed Bradshaw, that he ever owned a pistol or that he was wearing a straw hat on the night of August 1, 1975. Defendant never saw any hats in the back seat of the car or being worn by Lee or Tarvin. Defendant testified that he was approximately the same size and complexion as Johnny Tarvin and that the policemen confused him with Tarvin at the police station.
In closing argument to the jury, the prosecutor remarked about defendant's failure to call his parents to corroborate his alibi testimony. Lee's attorney argued that his client's absence did not give rise to an inference of guilt. In rebuttal, the prosecutor commented that it was reasonable for the jury to believe that Lee's absence was motivated by guilt.
Over defense objection, the court instructed the jury that if it found that defendant had exclusive, unexplained possession of recently stolen property, it could infer that he obtained the property through armed robbery. Illinois Pattern Jury ...