APPEAL from the Circuit Court of Cook County; the Hon. JAMES
E. STRUNCK, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants Hovanec and Timm were convicted of armed robbery. (Ill. Rev. Stat. 1975, ch. 38, par. 18-2.) Darrell Timm has since died and his appeal was dismissed by this court as moot. (People v. Mazzone (1978), 74 Ill.2d 44, 383 N.E.2d 947.) We will therefore consider only the issues raised by Hovanec on appeal and refer to Timm only where necessary to dispose of Hovanec's contentions. Defendant Hovanec was sentenced to a term of 6 to 18 years. On appeal, defendant contends that: (1) the trial court erroneously refused to dismiss the information charging him with armed robbery; (2) he was denied his right to present a defense; (3) the return of certain physical evidence by the State violated his due process rights since it suppressed evidence material to the proof of his innocence; (4) the trial court erroneously denied a continuance so that defendant could obtain exculpatory evidence; (5) the trial court erroneously allowed defendant's prior conviction to be introduced for impeachment purposes; (6) the prosecutor made improper remarks in his closing argument; and (7) he was not proved guilty beyond a reasonable doubt. We affirm. The pertinent facts follow.
Steve Korwin, the victim, signed a complaint charging defendant and Timm with taking $49, 167 cartons and 125 packages of cigarettes from him while armed with a knife. At the preliminary hearing on the complaint, the victim testified that on October 19, 1976, at about 3:45 a.m., he was sitting in a gas station known as Tony's Oasis located at 50th and California. A man he identified as defendant Hovanec walked into the station, hit the victim in the eye with his fist, and said, "I want all the money." He gave defendant about $40. After the defendant struck him, Korwin noticed that he had a "Small blade, knife" in his hand. At defendant's command, he closed his eyes and put his head down. He remained that way for 5 to 10 minutes. When he got up, defendant was gone. He noticed that cigarette packages were missing and that a storage room had been broken into.
On cross-examination the victim tesified that although it was dark outside and the room in which he was seated had no lights, there was enough light to see a face and its features because of a light in the washroom. He also stated that he did not know if defendant had a knife and that the object could have been a belt buckle. When defendant rubbed the object against his arm it felt sharp.
Chicago police officer Zuzich testified that on October 19, 1976, at about 3:50 a.m., he was on patrol in a marked squad car. He saw a vehicle without a city sticker heading in the opposite direction. He made a U-turn and stopped the car at 47th and Seeley. As he got out of the squad, he received a radio message that a robbery had just occurred at 50th and California and that the robber was a white male wearing a brown jacket, blue jeans and dark sunglasses. He noted that the passenger was wearing dark sunglasses and otherwise matched the description. He observed a large quantity of cigarettes in the back seat of the car. A search of defendant revealed a pocket knife. The two men were arrested and taken to the gas station. The cigarettes were inventoried and then returned to the victim.
The preliminary hearing judge found probable cause for robbery but not for armed robbery. He struck the word "armed" from the complaint and changed the statutory section allegedly violated to conform to his finding.
On November 30, 1976, the State's Attorney filed an information charging defendant with armed robbery. On March 8, 1977, defendant filed a motion to dismiss the armed robbery information for failure to have a court or grand jury return a finding of probable cause for armed robbery. Defendant also filed a motion to suppress evidence and quash the arrest and a motion to suppress the identification testimony of the victim. Defendant also filed a motion to bar the use of his prior conviction for aggravated battery for impeachment purposes. After a hearing, all motions were denied. On July 25, 1977, defendant moved to inspect the packages of cigarettes but was told that they had been returned to the gas station, were not available, and would not be introduced at trial.
The following pertinent testimony was adduced at trial.
Steve Korwin, the victim, testified. On October 19, 1976, he was working at Tony's Oasis at about 3:45 a.m. There were lights on outside the building and in the garage area and another in the washroom area. He saw a person enter the building, walk up to him and hit him in the face with his fist. The assailant was white and wore a brown jacket, blue jeans, and sunglasses. He held a knife in his hand and demanded all the money. Korwin identified the knife at trial. He gave the assailant about $40 to $50, "a lot of singles and a ten." He was told to keep his head down, and while doing this, he heard a second person enter the office. The first person asked Korwin for keys to a storeroom but he did not have any. He heard a cracking sound from the storeroom area. He could hear the two people going back and forth between the storeroom and the door. The person who hit Korwin told him to wait 15 minutes before calling the police. While he was on the ground, one of the persons rubbed the knife against his right arm. He identified Hovanec as the person who hit him and told him to wait 15 minutes before calling the police. After the people left, he called the police, gave them a description, and told them the general direction in which the robbers left. He noticed that a lot of cigarettes were missing from the storeroom and from a cigarette box. The storeroom lock had been broken.
About 15 minutes later he saw defendant in the back of a police wagon at the gas station. Two men were in the back and Korwin recognized defendant. He then went to the police station where he recovered the cigarettes. He placed these cigarettes with the regular stock.
On cross-examination Korwin stated that he was not sure that the knife he had identified was the same knife that he had been threatened with because it was dark in the room. He also said that the object could have been a belt buckle. He did not have a long time to observe the defendant before the defendant came in and he thought he was just another customer. He was struck about 3 or 4 seconds after the man entered the room and was dazed by the blow. At the preliminary hearing, he estimated that $30 to $40 had been taken. On the day of the robbery, Korwin didn't know that cigarettes were kept in the storeroom. When he first gave the description to the police, he did not give any height or weight nor did he mention a mustache. He also did not use the word "sunglasses" to describe defendant's glasses. He never saw or heard a car and did not know what was taken from the storeroom.
After the police arrived, he heard over the police radio that two suspects had been apprehended and would be in a "paddy wagon."When the wagon arrived, an officer told him to look in the back. Defendant was the only person with dark hair in the wagon.
Chicago police officer Zuzich testified. At about 3:50 a.m. on October 19, 1976, while on patrol westbound on 47th Street, he noticed an eastbound vehicle without a city sticker. He made a U-turn on 47th Street and pursued the vehicle. He then observed that one of the taillights was out. The car turned right on Hoyne, then east down an alley to Seeley, then back to 47th Street to go east again. At no time while the car was off of 47th Street did it stop. When the car pulled onto 47th Street, the officer curbed the car. As he approached the car he noticed a box with about 30 cartons of cigarettes through the back window. As the men got out of the car, he noticed the passenger fit the description of a robbery suspect which had just been reported on the police radio. At trial he identified Hovanec as the passenger and Timm as the driver. His partner searched Hovanec and found a pocket knife which the officer identified. The two suspects were put in a squadrol and taken to the gas station. He asked an Officer Bednarkiewicz what had been taken in the robbery. A search of the car revealed 6 cases and about 125 loose packages of cigarettes. In a search of the car at the police station, police found $49 under the passenger's seat, one $10 bill and 39 singles. After inventorying the money and the cigarettes, the cigarettes were turned over to Steve Korwin.
On cross-examination Officer Zuzich testified that he returned the cigarettes to Korwin because of the amount of cigarettes and money involved. When defense counsel inquired whether a lineup should have been held for identification of defendant, the trial court sustained the prosecutor's objections and refused to allow questioning on this point. Officer Zuzich told the wagon to return to the station for a one-on-one showup. Although he made a report on the arrest, he failed to mention in the report or inventory sheet that he found the $49 under the seat of the car.
Chicago police officer Bednarkiewicz testified. On October 19, 1976, he was on patrol and received a call about 3:45 a.m. and went to the gas station at 50th and California. He spoke with the victim and received the following description of the assailant: white male, approximately 6 feet tall, 170 to 180 pounds, wearing dark sunglasses, a brown jacket, dark hair and a mustache. He relayed this description to Officer Zuzich. He was at the station when the paddy wagon arrived and saw the victim look into the back of the wagon.
On cross-examination Officer Bednarkiewicz testified that it took him 3 minutes to reach the gas station after he received the call on the radio. He talked to the victim for a minute or two before sending the message. He did not recall whether the victim's nose was bleeding or not, and he did not administer first aid. The paddy wagon arrived about 15 minutes after he did. Officer Zuzich had asked that the first message be repeated.
James Huff testified. He had known defendant Hovanec for 8 years and Timm for about 5 years. He was a good friend of Timm. In August 1976, he accompanied Timm to Hammond, Indiana, where Timm bought five or six cases of cigarettes, with approximately 30 cartons to each case. Timm later sold these over a bar in Chicago. Huff accompanied Timm to Indiana twice in September, traveling first to Gary, then to Cedar Lake, before returning to Gary where they bought cigarettes. On each trip Timm bought five or six cases of cigarettes and sold them in Chicago.
On cross-examination Huff testified that the trips were to Hammond and not to Gary. Timm paid "three something" a carton for the cigarettes and Huff bought cigarettes from him for $4 a carton. Huff did not buy cigarettes in Indiana when he was with Timm because he did not have money and does not borrow money. The witness admitted that he knew it was illegal to import cigarettes from Indiana to Illinois.
Darrell Timm testified. On the afternoon of October 18, 1976, he drove to Hammond, Indiana where he bought 180 cartons of cigarettes. He paid between $600 and $620 for the cigarettes and loaded them into his car. From there he went to Cedar Lake where he had lunch and then went to a lounge. He stayed at the lounge between 4 and 10 p.m. when he went to a friend's house. He remained there until about 10:45 p.m. He went to another bar where he stayed until about 1:45 a.m. While there, he had a few drinks with a young lady named Sharon, but he did not know her last name or telephone number. He left the bar about 1:45 a.m. and drove to a 24-hour restaurant located in Chicago at 47th and California, about 2 1/2 blocks from Tony's Oasis. He arrived at about 3 a.m. He was finishing breakfast about 3:30 a.m. when defendant, whom Timm had known for about two months, asked for a ride home. He had two partially filled boxes of cigarettes in the front seat of his car, and in order to make room for defendant, he took 10 to 12 cartons from one box, opened them, and put the loose packs into the other box. He then placed this box into the back seat and covered them so they could not be seen. He placed the empty cartons in the empty box in the front seat. As he drove east on 47th Street, he turned south for one-half block on Hoyne, then east down an alley where he dumped the empty box. He then drove north on Seeley and when he reached 47th Street, a squad car put its lights on and he stopped. He and defendant were searched by two policemen. He was handcuffed but was not told he was under arrest until he reached the police station. He did not tell the police that he had purchased the cigarettes in Indiana.
The defense sought a two-day continuance to interview a manager of Tony's Oasis since they suspected that the State might be withholding exculpatory evidence. The prosecution objected to the continuance and, following argument, it was denied. The defense then submitted a police inventory slip which was admitted into evidence and then rested.
Following closing arguments, the jury found both Hovanec and Timm guilty of armed robbery.
On August 12, 1977, defendant informed the court that he was filing a written motion for a new trial and that he had also subpoenaed the cigarette inventory records from the gas station but had not received a reply. The trial court stated that the grounds for a new trial were insufficiently alleged and denied the motion. Defendants were sentenced but the mittimus was stayed until defendant could make a motion for new trial based on new evidence. Notice of appeal was filed August 23, 1977. On September 19, 1977, defendant informed the trial court that a motion for new trial on the grounds of newly discovered evidence had been filed on September 16. The motion alleged that inventory records from the gas station indicated a loss of cigarettes valued at $230.74 from the armed robbery, far less than the value of the cigarettes found in Timm's car. The State objected to the motion on the grounds that more than 30 days had passed since defendant's motion for a new trial, and the trial court was without jurisdiction. The trial court deferred its ruling until September 26, 1977, when it ruled that it no longer had jurisdiction over the case.
Defendant contends that his prosecution by information and conviction for armed robbery after the preliminary hearing judge found probable cause for robbery alone is not authorized by statute (Ill. Rev. Stat. 1975, ch. 38, par. 111-2) and violates article I, section 7 of the Illinois Constitution of 1970 and the due process clause of the United States Constitution. (U.S. Const., amend. XIV.) The State argues that the filing of the information was authorized and did not violate defendant's constitutional rights.
Article I, section 7 of the Illinois Constitution of 1970 provides:
"No person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine or by imprisonment other than in the penitentiary, in cases of impeachment, and in cases arising in the militia when in actual service in time of war or public danger. The General Assembly by law may abolish the grand jury or further limit its use.
No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause."
In 1975, section 111-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-2) was amended to allow the prosecution of additional offenses by information once probable cause for an offense had been found at a preliminary hearing. That section provides in pertinent part:
"(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109-3 and at that hearing probable cause to believe the defendant committed an offense was found.
(e) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct."
Section 111-2(e) was subsequently redesignated as section 111-2(f). Ill. Rev. Stat. 1978 Supp., ch. 38, par. 111-2(f).
In People v. Redmond (1977), 67 Ill.2d 242, 367 N.E.2d 703, the Illinois Supreme Court upheld the constitutionality of section 111-2(e) against challenges under article I, section 7 of the Illinois Constitution of 1970 and due process clause of the United States Constitution. U.S. Const., amend. XIV.
Defendant agrees that section 111-2 as construed in Redmond allows a prosecutor to file additional charges by information after a judge in a preliminary hearing has found probable cause to believe that defendant has committed some offense. He argues that Redmond does not cover this case, since the prosecutor did not file an additional charge but the same charge for which the judge at the preliminary hearing had found no probable cause. He submits that by ignoring the judge's finding of no probable cause and proceeding against defendant on that charge by information, the State violated his constitutional rights.
The major premise of defendant's argument is that the judge made a finding of no probable cause for armed robbery at the preliminary hearing. A careful examination of the record of the preliminary hearing convinces us that no such finding was made by the court. The pertinent portions of the transcript of that hearing are as follows:
"THE COURT: Confine yourself to the issue of armed robbery versus robbery because I'm satisfied that there's a basis for a finding of probable cause for robbery as to both Defendants.
[Assistant State's Attorney]: Just briefly, the victim testified he saw a blade, that that blade was rubbed up against his arm. The officer testified that his partner found a knife on the Defendant Hovanec.
[Defense counsel]: Objection to that. That's speculation.
[Assistant State's Attorney]: We'd be asking for a finding on armed robbery, Your Honor.
THE COURT: Finding of probable cause, simple robbery, both Defendants.
[Assistant State's Attorney]: We're asking to amend the Complaint, asking to strike the word, "armed" and striking "with a dangerous weapon."
THE COURT: Waive reswearing and reaffirmation?
(Which were all of the proceedings had in the above entitled cause.)"
The court found probable cause for robbery but made no finding as to the greater charge of armed robbery. The State amended the complaint to charge only robbery for which probable cause had been found. Since probable cause for an offense (robbery) had been found, the additional charge of armed robbery could be added by information. Ill. Rev. Stat. 1975, ch. 38, par. 111-2(e).
Contrary to defendant's contention, this procedure does not violate his due process rights under the United States Constitution or his rights under article I, section 7 of the Illinois Constitution. People v. Redmond (1977), 67 Ill.2d 242, 367 N.E.2d 703, cert. denied (1978), 434 U.S. 1078, 55 L.Ed.2d 785, 98 S.Ct. 1272.
1, 2 Had the judge at the preliminary hearing made an express finding that no probable cause existed for the charge of armed robbery, the State could either seek a grand jury indictment for that crime (People v. Kent (1972), 54 Ill.2d 161, 295 N.E.2d 710; People v. Creque (1978), 72 Ill.2d 515, 382 N.E.2d 793), or, absent harassment, refile the armed robbery complaint and hold another preliminary hearing. (People v. Overstreet (1978), 64 Ill. App.3d 287, 381 N.E.2d 305.) The State should not be able to ignore an express finding of no probable cause for an offense made at a preliminary hearing and file an information charging the same offense. As noted in People v. Redmond, California has a constitutional provision (Cal. Const. 1879, art. I, sec. 14 (1974)) and a statute (Cal. Penal Code § 739 (West 1970)) which are similar to the ones involved in the instant appeal. The Supreme Court of California has held that where a magistrate at a preliminary hearing makes an express finding that, as a matter of fact, no probable cause exists for a certain offense, that offense may not be included in an information subsequently filed by the prosecutor. (Jones v. Superior Court (1971), 4 Cal.3d 660, 483 P.2d 1241, 94 Cal.Rptr. 289.) In that case the magistrate made express factual findings that he did not believe the complaining witness' testimony or that the crimes charged took place. The court quoted from Parks v. Superior Court (1952), 38 Cal.2d 609, 613-14, 241 P.2d 521, 524, where it had earlier stated:
"As indicated herein the district attorney might include a related offense although the magistrate concluded impliedly or otherwise that the evidence did not show probable cause that such offense had been committed."
This was explained in Jones as follows:
"Although the district attorney may, under Parks, challenge the magistrate's ultimate finding that the evidence is legally insufficient to show that the charged offense or offenses occurred, that challenge must be made within the context of the magistrate's findings on the evidence." 4 Cal.3d 660, 666, 483 P.2d 1241, 1244, 94 Cal.Rptr. 289, 292.
3 In the instant case, the judge made no finding that probable cause for armed robbery did or did not exist. Moreover, the complaint was amended to allege only robbery in place of armed robbery. Since probable cause was found for the robbery charge, we conclude that the State properly charged the offense of armed robbery by information and did not violate defendant's rights.
Defendant contends that he was denied his right to present a defense since he was prevented from cross-examining Officer Zuzich concerning whether a showup identification rather than a lineup had been used, and from arguing to the jury that the weight of the identification was thereby affected.
During Officer Zuzich's cross-examination, the following exchange took place:
"[Defense counsel]: Q. Now, your job is to enforce the law, ...