APPEAL from the Circuit Court of Cook County; the Hon.
THEODORE M. SWAIN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants were convicted of armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 18-2.) Defendant Rose received a sentence of 4 to 10 years while defendant Stuckey received a sentence of 5 to 12 years. On appeal, they contend that (1) the trial court erred in refusing to allow them to use nylon stockings as demonstrative evidence, (2) that they were denied a fair trial where the State's closing argument shifted the burden of proof to the defense, and (3) that the trial court erred in failing to declare a mistrial after a prosecution witness stated that he had been threatened.
The following pertinent facts were adduced at trial.
On November 22, 1974, he was employed as the general manager of a McDonald's restaurant at 107th Street and Halsted Street in Chicago. At approximately 9 a.m. or 9:30 a.m. on that date, he was working at his desk in the back room of the restaurant. The desk was five or six feet from the rear door which was used only by employees and was right next to the safe. At that time, Donna Lemon, an employee, came in the back door and then opened the door to allow two men to enter. One of them carried a "sawed-off shotgun." Crawford was able to recognize the men as regular customers even though they wore nylon stockings over their faces. He identified the taller man who carried the shotgun as defendant Stuckey and identified the second man as defendant Rose. He testified that prior to November 22, 1974, defendants had "come in all the time, you know, buying hamburgers." Defendant Stuckey told him, "it was a stick-up." He replied that he would not give them trouble. He stood approximately a foot and a half from defendants. Rose gave him a cloth bag and Stuckey told him to fill the bag with money from the safe. He filled the bag with $300 in coins, but when he told Stuckey that he did not have a key for the currency, Stuckey hit him with the gun. Stuckey then demanded his wallet. Defendants then pushed him down a stairway and fled. He immediately called the police.
At approximately 1:30 a.m. the next day he was asked to come to the police station to make an identification. He viewed a six-man lineup and identified the two defendants as the men who had robbed him.
On cross-examination he admitted that he had no particular reason for remembering defendants as restaurant customers. He stated, however, that defendants "had been in there a lot so I did remember these two guys." Although he was not certain, he believed the incident lasted approximately 10 minutes. He stated that the nylon stockings had "very, very little" effect upon defendants' faces and that "[t]here was nothing to stop me from recognizing these two guys."
On November 22, 1974, she was a 14-year-old high school student employed at the McDonald's restaurant in question. At 9 a.m. on that day she was in an alley behind the restaurant with defendants and two unknown males. She had known both defendants for approximately two years prior to that day. Defendants and the two other individuals "were talking about whether they were going to go ahead and rob McDonald's or not." Stuckey told them to "do it." She could not recall whether Rose said anything. Stuckey "went around the front of McDonald's to check and see if anybody was there." Stuckey had told her earlier that they were going to rob the restaurant.
She then went to the back door of the restaurant because she was getting ready to start work. Two of the four individuals came to the door behind her; she did not see where the other two went. When she knocked on the door another employee let her in the restaurant. As she pulled the door closed behind her, "one of the dudes that followed" her grabbed the door. When she entered she observed that Rose had also come into the restaurant. Crawford was sitting at his desk and turned to look at her. She then walked down the stairs to the basement.
Several days before the robbery Stuckey asked her whether McDonald's had a safe and a security guard. She told him that the safe was in the back, but that she did not know whether there was a security guard. Stuckey telephoned her at about 10 p.m. the night before the robbery and told her, "that they were going to go ahead and stick the place up." When she told Stuckey she was going to be at work at 9 a.m., Stuckey said they were going to come in the back door behind her. Stuckey called her again the next morning to make sure she would be at work.
Stuckey called her at about 6:15 p.m. on the day of the robbery; he told her they were counting the money and that she would get her share. When she told Stuckey that the police were then at her home, he said, "Don't worry about it; it is just routine."
She further testified that Rose was at her home the night before she was to testify in court. Rose asked her, "to do him a favor" and said that, "he knew he was guilty ...