APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. WHITE, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants were convicted of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2) and sentenced to terms of four years to four years and a day. On appeal, they contend that they were not proved guilty beyond a reasonable doubt. Additionally, defendant Burnett contends that he was denied a fair trial by co-defendant Grenshaw's testimony regarding the purchase of marijuana, while Grenshaw contends that the trial court erred by giving a misleading jury instruction and by refusing to give a reasonable doubt instruction which Grenshaw offered.
At trial, the following pertinent evidence was adduced.
On November 11, 1974, he was a student at DeVry Institute of Technology. During a coffee break between classes he heard a classmate, Jerrold Marshall, talking about a stereo "component set" he was going to purchase. Beck said that he would be interested in buying a set "if it was a good deal," and Marshall told him that he would get $2,000 worth of equipment for $700. After Marshall made a phone call, he told Beck that he could get him the equipment. They left school together around noon, and went to Beck's house at 1617 West 56th Street. There he wrote a check for $600 and removed $130 from a "piggy bank." He and Marshall then went to the Standard Heritage Bank where he cashed the check for six $100 bills which he put in his pocket. Afterwards they returned to school. Later, he, Marshall and some other classmates went to Marshall's brother's house at 10 South Lockwood. He was supposed to purchase the equipment there, but the seller did not arrive. He gave Marshall his home phone number and left still in possession of his $730. At approximately 6:45 p.m., Marshall arrived at his house, saying that he had lost his phone number. Marshall said that he would "call the guy and tell him we was on our way," but as he started dialing, he asked for a glass of water. He left to get Marshall the water. When he returned 10-15 seconds later, Marshall said, "okey" and hung up the phone. He and Marshall each counted their money, and Marshall said that they were going to "47th and Hermitage, Margefield [sic]." As they left Beck's house, Marshall said that he would "really hate to be robbed" with all that money on him. As soon as they walked out the door, Marshall yelled, "Oh no." Someone behind him then grabbed his left side, spun him around, and leaned him against a car which was some 11 feet away from the front door of his building. He identified his assailant in court as defendant Grenshaw. The scene was lit by light from the apartment windows, the hallway door light, and a street lamp some 10-15 feet away. Grenshaw held an army knife to his stomach, removed $30 from his right pocket, and said "I'm going to ask you one time where it is." He told Grenshaw "it" was in the other pocket. Grenshaw, who was holding the knife five inches from his stomach, then removed $700 from his left pocket. During this time a second man, who had a gun, grabbed Marshall and threw him against the building. He saw this man's face from a distance of about four feet, and identified him in court as defendant Burnett. Burnett and Grenshaw did not wear masks or other facial coverings, and did not in any way attempt to avert their faces from him. After the robbery, defendants fled by walking west on 56th Street and then running north on Marshfield. The entire occurrence had taken approximately two minutes. Marshall said, "we just got robbed," and they went upstairs and called the police. Marshall left saying that he was going to wait for the police downstairs. About three minutes later, he looked out the window and noticed that Marshall was gone. The police arrived about 20 minutes later, and plainclothes detectives arrived at approximately 7:45. After talking with them, he went with two of the policemen to 10 South Lockwood, the location of Marshall's brother's apartment. They did not see any of the defendants there, but they decided to stay parked in the police car in front of the building. After waiting for a few minutes, he saw the car which Grenshaw had thrown him up against coming down the street. The car was a black-over-green four door Oldsmobile. He told the police that Marshall was in the car with other people who "possibly" were "the robbery men." The police turned on their flashing lights and sirens, and chased the car for approximately two blocks at a "nice little speed." He and the police got out of the car, and Marshall, who had been driving, began to get out of the Oldsmobile. He went up to that car and identified the passengers, Burnett and Grenshaw, as the assailants. The police then told him to go back to their car so he wouldn't get hurt. He did not see any money at the scene, but later saw $896 counted at the police station.
On cross-examination he stated that he described Grenshaw to the police as being six feet tall, having a beard and mustache, and wearing a blue skull cap, lightweight dark colored jacket and jeans. He described Burnett as being a male Negro about 25, six feet three inches tall, weighing 165 pounds and wearing a blue cap, three-quarter length black leather jacket, and high platform shoes. He also said that Burnett had a mustache and beard, but did not say that they were joined together or that he had a goatee. He conceded that although he saw Marshall's assailant, he "was more involved with" Grenshaw. He further conceded that when Grenshaw held the knife on him and went through his pockets, he did not look at Marshall or Marshall's assailant. He stated that he and the police spent about 45 minutes travelling from his apartment to 10 South Lockwood, and explained that they had a flat tire on the way. He estimated that they arrived at the Lockwood address within two hours after the incident.
Walter Zamolewicz, Chicago Police Officer
He is an investigator assigned to Area Three Robbery. On November 11, 1974, at approximately 8 p.m., he and his partner Officer Morley arrived in an unmarked car at 1617 West 56th Street. They interviewed Warren Beck, and then the three of them drove to 10 South Lockwood. After "a female voice" refused their entrance to the building, they reentered their police car and waited at the scene for about 10 minutes. They saw a four-door black-over-green Oldsmobile come off of Madison Street, go south on Lockwood, and slow down in front of 10 South Lockwood. Beck then shouted out, "That's the car and those are the suspects. That's Mr. Marshall driving. Those are the suspects." The Oldsmobile sped away. Officer Morley turned on the lights and siren of the police car and pursued the Oldsmobile to 5416 West Jackson, where it was stopped. Jerrold Marshall got out of the car. Beck went up to the Oldsmobile and identified the two passengers as the men who robbed him. They were the defendants Burnett and Grenshaw. He told Beck to go back to the squad car, and Beck did so. After advising Marshall, Burnett and Grenshaw of their rights, Zamolewicz searched the car and found a large amount of money in the rear of the front passenger's seat, where Burnett had been sitting. He asked the three men whose money it was and all three denied having any money. He took the money out, showed it to Burnett and asked, "Is this your money?" Burnett said, "One hundred is mine." He said, "That's all? You can do better than that" and Burnett said, "One hundred fifty is mine." At the 15th District Police Station Zamolewicz counted the money, and found that it amounted to $896. The money was in two packets, one containing $296 in older bills, and the other containing six new $100 bills. At the time of their arrest, Burnett was five feet eight inches tall, weighed 145 pounds, had a mustache and beard and wore a brown jacket, flowered shirt, and blue jeans. Grenshaw was five feet eight inches tall, weighed 135-145 pounds, had a full beard and mustache, and wore a dark blue skull cap, brown jacket, multicolored shirt and levis.
On cross-examination he estimated that they arrived at 10 South Lockwood at about 8:30 p.m. and denied having a flat tire or experiencing any other delay along the way. He admitted that no weapons were ever recovered in connection with this case; that it was dark when they saw the Oldsmobile, and that he could not make out the passenger's features.
John Novak, Chicago Police Officer
On November 11, 1974, he and his partner, James Tynan, went to 1617 West 56th Street to investigate the robbery of Warren Beck. His partner conducted the interview with Beck and made out a report. He had no independent recollection as to whether Beck described his assailants as having beards or mustaches. After reviewing the police report, he stated that nothing in the report indicated that Beck described Burnett or Grenshaw as having a beard or mustache.
She is Matthew Burnett's wife. On November 11, 1974, they and their children lived at 1847 West Lake Street. In order to save their money for the purchase of a car, they would save their "tens" and "twenties," convert them into $100 bills and keep the money in a jewelry box on a shelf in their bedroom. On the date in question there was approximately $900 in the jewelry box. At 10:30 or 11 a.m. her husband put his coat on and said he was going out to look for a car. She did not see whether he took any of their money with him. He returned home at about 7:30 p.m. Approximately 10 minutes later Jerrold Marshall, a friend of ...