APPEAL from the Circuit Court of Cook County; the Hon. ADAM N.
STILLO, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 7, 1979.
Following a bench trial defendants were convicted of armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 18-2.) Kramarczyk and Lochirco were sentenced to terms of four to eight years while Villalobos was sentenced to a term of five to 10 years. On appeal, they each contend that they were not proved guilty beyond a reasonable doubt. Additionally, Kramarczyk contends that the trial court erred in failing to suppress his oral statement on the grounds of a Miranda violation and that his constitutional rights were violated when the officers arrested him in his home without a warrant.
The following pertinent evidence was adduced at trial.
Robert Matos, the complaining witness
He is a security guard employed by the Cohn Detective Agency. On April 25, 1974, about 11:15 p.m. he left his place of employment at 4910 W. Flournoy in Chicago and began driving to his home at 914 W. 19th Place. He took a more circuitous route than normal because he was in no hurry and wanted to drive around. About two miles from his home he felt a great urge to urinate and drove into an alley near the 1800 block of South Oakley for the purpose of "relieving myself." He stopped his car 10 or 15 feet east of the entrance to the alley. He put the car in park and was about to get out when four men came out of a gangway. At first he did not think anything of this. One of the men, whom he identified as defendant Villalobos, approached him and pointed a gun at his head. A second man, whom he identified as Kramarczyk, then ordered him out of the car. When he got out of the car, Lochirco said, "That's right, keep looking at me, punk, you'll see me more often." He was searched, and his wallet containing his badge and identification, but no money, was taken; 35 cents and some screws were also taken from his pocket. The keys were taken out of his car.
An unidentified black man then accompanied him about 100 feet down the alley to the west, and the three defendants followed. When he and the black man stopped underneath a light, he turned and observed the three defendants standing about 25 feet away. They were looking through his wallet. He was afraid they would shoot him if they found his badge, so he hit the black man in the face and ran east past the three defendants. The defendants chased him, but he was able to escape and run into the tavern on the corner. He phoned the police from the tavern. He described the lighting conditions in the alley at the time of the robbery as "good."
Matos further testified that the day after the incident he returned to the scene with a spare set of keys to pick up his car. At that time he was approached by an unknown girl who said she had seen the robbery the previous night while looking out the window. She told him the nicknames of the four assailants were Fish, Augey, Bruno and Bugaloo. Those names were not familiar to him. He did not ask for the girl's name or address and could not locate her again. Although he telephoned this information to the police department, he could not recall to whom he had spoken.
Several days later, he identified pictures of Villalobos and Lochirco from a group of 40 or 50 photographs shown to him by police officers. At a lineup on May 14, 1974, he identified Villalobos. He viewed 10 or 15 photographs on July 8 or 9, and identified the photograph of Bruno Kramarczyk. He then testified that Kramarczyk was the one who said, "That's right, punk, keep looking at me, you'll see me more often." He testified he identified Kramarczyk in a subsequent lineup on July 12, 1974, and at trial indicated with a mark on a photograph of the lineup the man he identified as Bruno Kramarczyk. He later identified the same photograph as being that of Lochirco.
On cross-examination he admitted telling a police officer that two of the individuals were blonde. However, he admitted that none of the defendants he saw in court had blonde hair and he testified that they appeared the same as they did at the time of the robbery. In court he characterized Kramarczyk's hair as light brown, Lochirco's hair as dark brown and Villalobos' hair as black. He admitted testifying at the preliminary hearing that the lighting was "just medium," but stated at trial that, "I could see exactly what they looked like." He admitted, however, that the lighting was not sufficient to enable him to see the exact features of his assailants.
He further testified that he waited about a half hour until he got home before he urinated; he said it was not a great urge and explained he would have merely been uncomfortable if he had to drive the two miles home rather than stop in the alley.
Louis Marrello, Chicago Police Officer
On April 29, 1974, Matos identified photographs of Villalobos and Kramarczyk from a group of 45 to 50 photographs and on July 8 or 9 identified the photograph of Lochirco from a group of 15 photographs. Matos also identified both Villalobos and Lochirco in lineups. He did not know whether Kramarczyk was placed in a lineup. Matos told the police officer who made the initial report of the robbery that Kramarczyk had blonde hair. Marrello, however, characterized Kramarczyk's hair as "light brown." When he questioned Kramarczyk about the incident, Kramarczyk said, "I was there, but there was no robbery. There was a fight." Kramarczyk told him he knew Fish and Augey, but would not answer when asked if they were with him at the time. Kramarczyk further told him a man had come into the alley looking for trouble and there was a fight.
On cross-examination he characterized Villalobos' haircut at the time of the May 14, 1974, lineup as being "a baldy sour" or "very short."
Agapito Villalobos, on his ...