APPEAL from the Circuit Court of Cook County; the Hon. ADAM M.
STILLO, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, defendant Willie Baker was found guilty of robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-1) and sentenced to a term of two to six years imprisonment.
Defendant appeals, contending: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly prevented him from presenting relevant evidence; (3) the State destroyed favorable evidence; (4) the trial court improperly permitted impeachment of the defendant with a prior conviction for burglary that was constitutionally invalid; (5) comments made by the prosecution in its final argument denied him a fair trial; and (6) the trial court indicated to the jury its disbelief in the credibility of defendant and his witness which denied him a fair trial.
The alleged robbery occurred on December 5, 1975, at about 7:30 p.m. in the vicinity of 1036 North Wood Street in Chicago. The victim testified that at about 7:20 that evening he intended to go to a church meeting being held about five blocks away from his house. As he was about to descend his front stairs, a car occupied by two men pulled up and one of the men called to him. Not recognizing either of the men, he went back into his house, waited for a few minutes and then left for the meeting. As he was walking, he saw the same car pull up and park about five houses away. The victim stated that when he saw the driver, whom he identified in court as the defendant, get out of the car, he crossed to the other side of the street and started to walk back toward his house. He said that before he knew it, the defendant was behind him and said, "this is a stick up." The victim told defendant he didn't have much and pulled out $5 from his wallet. After taking the money, defendant told the victim he thought the victim had something of more value and to follow him to the car. The victim testified that he noticed defendant was carrying what appeared to be a rifle wrapped in black plastic with a string tied around it. The victim told defendant that the only thing of value he had was his watch and gave it to him, after which time he said the defendant "took off."
The victim testified that he called the police that evening to report the incident and described his assailant as 5'11", 180 pounds, having a mustache, short hair, and wearing a black leather coat. The victim said he did not know exactly how long the incident lasted but estimated it could have lasted 1 1/2 to 2 minutes. He testified that the street was fairly well lit by sodium vapor city streetlights, and that he stood facing the defendant for about 1 1/2 to 2 1/2 minutes at a distance of 3' to 4'.
The next day the police gave the victim a photo album containing about 160 photos of black males. The victim testified that he looked through the photos, starting at the back of the album and identified photograph number 32 as a picture of the man who robbed him. At trial the victim stated that he was positive the picture was of the man who robbed him but stated that he may have said at a preliminary hearing that he "wasn't exactly positive."
Later that same day the victim picked out the defendant from a police lineup. At trial the victim stated that he had not been told that the man whose picture he had picked out would be present in the lineup. On cross-examination, it was brought out that at a preliminary hearing the victim testified that the police told him the man whose picture he identified lived in the Lewis Hotel, that they would pick him up, and that he would be present in the lineup. When confronted with these statements, the victim stated that the police did not actually tell him that the defendant lived in the hotel, rather he overheard the officers' conversation to that effect, and that he did not recall stating that he knew the defendant would be in the lineup.
Officer William O'Brien testified that he handed the photo album to the victim, who at the time was seated alone in the back seat of a squad car. He identified the photo album in court and stated that the picture the victim picked out was of the defendant. O'Brien did not recall saying that the defendant lived in a particular hotel and denied telling the victim that the defendant would be present in the lineup. Officer Donald Korte, O'Brien's partner, who was also present in the squad car at the time the victim identified the defendant's photo, testified that he might have told O'Brien that the defendant lived in the hotel, admitted telling the victim that he would attempt to arrest the person whose picture the victim identified, but denied saying that person would be present in the lineup. O'Brien testified that he and Korte arrested the defendant at about 5:30 p.m. the day after the incident occurred, in the lobby of the Lewis Hotel, which was located about three blocks from the scene of the crime. He stated that after being informed of the charge, the defendant denied any participation. The officer stated that when arrested, defendant was wearing a military trench coat and that incident to the arrest, defendant was searched but no proceeds of the crime were recovered. The officers stated that they did not search the defendant's room because they did not have a warrant.
The defense began its case by reading to the jury a stipulation that at a prior hearing the victim testified he thought he was sure, but was not exactly positive, that the man whose picture he identified was the man that robbed him; that an officer told him the man would be picked up and then would be in a lineup in order to see whether he could identify the man again; that he was told that the man whose picture he identified lived in his neighborhood; and that when shown a front and side view of the lineup and asked how many of the men had heavy beards, he responded by marking the photographs to reflect the fact that the three men other than the defendant had heavy beards.
Ida Brown, defendant's girl friend, testified for the defendant that on December 5, 1975, at about 4 or 5 p.m., she visited defendant in his room at the Lewis Hotel. When she arrived there, she put her money in defendant's dresser drawer. She testified as to certain events that transpired at the hotel involving herself, defendant, and the hotel desk clerk Bobby Washington between 5:30 p.m. and 9 or 10:30 p.m.
Bobby Washington testified that he worked part-time as a desk clerk at the Lewis Hotel. He stated that on December 5, 1975, he worked from 5:30 to 9 p.m. He stated that at about 7:30 or 7:45 that evening, Ida Brown came to the desk and told him that the defendant had taken her carfare. Washington said he went to the defendant's room to talk to him and defendant accompanied him to the lobby where the defendant had a few words with Brown and the two began fighting. According to Washington, another man by the name of Floyd tried to intervene which resulted in a fight between Floyd and defendant. Washington stated that after the fight, defendant did give Brown carfare. He remembered seeing Brown leave but could not recall what time. He stated that he got off work about 9 or 9:15 that night and did not see Brown sitting in the lobby or return to the lobby after she left, and that he had not seen the defendant that day prior to the time he went up to the defendant's room. Washington also stated that there was a back door to the hotel but it was always kept locked.
The defendant testified that his girl friend, Ida Brown, came to visit him on December 5, 1975, but could not remember what time she arrived. After about two hours, Brown told him she had to go visit her sister. Defendant said he "got mad and jumped on her and popped her upside the head." He said he took her carfare because he wanted her to stay. He said after hitting her four or five times she ran downstairs crying. About 15 or 20 minutes later, Washington came up to his room and asked why he did not give Brown the carfare. He then went down to the lobby with Washington to talk to Brown. He said that Brown was "still crying and slopping off at the lip, and I popped her upside the head again." Defendant testified that a friend of his, Floyd, tried to intervene and a fight between Floyd and the defendant resulted. He then left the hotel with Floyd to buy wine at a nearby tavern. When they returned he looked for Brown but did not see her. He said he went up to his room with Floyd and smoked "some reefer" and drank the wine. He went back down to the lobby about 10 or 11 p.m. but did not see Brown. The defendant also stated that after he first went down to the lobby with Washington and before the fight with Floyd, he went back up to his room to get his television set which he put behind the front desk and at that time he saw Brown in the hallway of the lobby with "Oscar and them drinking wine."
Defendant first contends the identification testimony of one witness, the victim, uncorroborated by other evidence was insufficient to prove him guilty of robbery beyond a reasonable doubt.
Defendant argues that the victim had a limited opportunity to observe his assailant, that the victim's testimony at trial was discredited by inconsistencies with his testimony at a prior hearing, and that the alibi testimony was not discredited by anything substantial and cannot be disregarded.
1 The testimony of a single witness, who had ample opportunity to form a positive identification, is sufficient to convict even though such testimony is contradicted by the accused. (People v. Stringer (1972), 52 Ill.2d 564, 569, 289 N.E.2d 631.) In determining whether an accused has been positively identified, this court has considered whether the witness had sufficient time to observe the offender at a reasonable distance and under adequate lighting. (People v. McGee (1976), 38 Ill. App.3d 889, 893, 350 N.E.2d 13; People v. Weatherspoon (1978), 63 Ill. App.3d 315, 327, 379 N.E.2d 847.) The trier of fact determines the credibility of the identification witness and the weight to be given his testimony. People v. Weatherspoon, 63 Ill. App.3d 315, 326.
2 Although the robbery in the instant case took only a few minutes, the victim testified that he observed his assailant face-to-face for 1 1/2 to 2 1/2 minutes at a distance of 3' to 4' on a street illuminated by streetlights. The victim reported the incident to the police immediately after it occurred and was able to give a detailed description of his assailant. The next day, the victim identified the defendant after being shown a photo album containing about 160 pictures of black males. The victim viewed approximately 130 of these pictures before coming to the picture of the defendant which he identified as the man who robbed him. There has been no showing that this photograph identification procedure was suggestive as to raise a substantial likelihood of misidentification. Several hours later, the victim picked out the defendant from a police lineup consisting of four black males with similar physical characteristics. We find such an identification to be positive and convincing.
3 The inconsistencies between the trial testimony of the victim and his testimony at a prior hearing do not nullify the victim's testimony but rather go to the weight the trier of fact gives to that testimony. (People v. Henderson (1976), 36 Ill. App.3d 355, 367, 344 N.E.2d 239.) These inconsistencies were brought to the attention of the jury during the cross-examination of the victim and portions of the victim's prior testimony about which defendant now complains were read before the jury at the opening of the defendant's case-in-chief.
4 Whether defendant's alibi evidence corroborated by witnesses Brown and Washington created a reasonable doubt of guilt was a question primarily for the trier of fact. (People v. Berland (1978), 74 Ill.2d 286, 307, 385 N.E.2d 649.) Defendant cites cases where courts> would not disregard the alibi testimony in situations where the identification testimony was found to be doubtful, vague, and uncertain. (People v. Gardner (1966), 35 Ill.2d 564, 221 N.E.2d 232; People v. De Suno (1933), 354 Ill. 387, 188 N.E. 466; People v. McGee (1961), 21 Ill.2d 440, 173 N.E.2d 434; People v. Kilgore (1973), 15 Ill. App.3d 862, 305 N.E.2d 328, aff'd (1974), 59 Ill.2d 173, 319 N.E.2d 489; People v. Carroll (1970), 119 Ill. App.2d 314, 256 N.E.2d 153.) Unlike those cases, we have found the identification testimony in the instant case to be positive. The trier of fact is not obligated to believe alibi testimony over the positive identification of an accused, even though the alibi testimony may be presented by a greater number of witnesses. (People v. Catlett (1971), 48 Ill.2d 56, 64, 268 N.E.2d 378.) Here the alibi evidence was not without inconsistencies and discrepancies, and the exact whereabouts of the defendant at the time the robbery took place was not clearly established.
A determination of guilt by a jury will not be set aside by a reviewing court unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill.2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.) There is sufficient credible evidence in the record to sustain defendant's conviction for robbery.
Defendant contends that the trial court improperly prevented him from presenting relevant evidence by restricting his cross-examination of the victim when it sustained the State's objection to his inquiry as to how often the victim had been at a certain shopping ...