APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
SULSKI, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, John Yuknis, was convicted of attempted armed robbery and aggravated battery and was sentenced to a term in the penitentiary of from two to six years. On appeal, defendant contends that the trial court's ruling excluding evidence and limiting cross-examination concerning drugs found outside the victim's home was improper and deprived him of the opportunity to show substantial likelihood of misidentification. Further, defendant claims that the assistant State's Attorney's closing argument unfairly represented to the jury that the excluded evidence of drugs did not exist. Defendant also raises for review other aspects of the closing argument, in which he claims the State presented material not contained in the record and thereby precluded him from receiving a fair trial. His final challenge is to the identification testimony, which he asserts was so self-contradictory that it failed to prove him guilty beyond a reasonable doubt.
On September 29, 1973, at 11:30 p.m., Joseph Barton was seriously wounded by a shotgun blast fired by one of two home invaders. Keith Carnes, Kort Emerson, Peggy Gleitsman and Andrew Joseph were also in the apartment at the time of the shooting. The victim's wife, Diane, had left for work earlier in the day.
According to the prosecution witnesses, Barton and his guests were listening to music and drinking beer and other alcoholic beverages in the living room of the basement level apartment. At about 11:30 p.m., the doorbell in the kitchen rang and Barton left the living room, accompanied by Gleitsman, to see who was at the door. Gleitsman went into the bathroom while Barton continued to the back kitchen door. The kitchen and porch lights were on and when Barton looked out the back window, he recognized a man named John, who had been in his apartment with a mutual friend two days earlier and who was later identified as defendant. As Barton opened the back door, defendant pulled a gun and demanded that he be let in. Another man, wearing a ski mask and carrying a double-barrel sawed-off shotgun, emerged from the shadows and followed defendant into the apartment. Neither the victim nor the other witnesses were able to identify the man in the ski mask.
The masked intruder pointed the shotgun at Barton and ordered him to go into the bedroom while defendant went down the hallway to the living room. As he entered the living room, the defendant told Carnes, Joseph and Emerson to hit the floor; when one said "what," defendant fired the pistol into the couch. The three were directed to crawl into the kitchen and to keep their heads down.
At the same time, in the bedroom, the masked intruder was demanding that Barton turn over his money, drugs, or anything else of value and was looking into a few of the dresser drawers. Barton responded that he did not keep money in the house and did not have any drugs. Immediately after the sound of a gunshot came from the area of the living room, the intruder ordered Barton into the kitchen where his friends were lying face down on the floor. The demand for money or drugs was repeated and, once again, was denied. As Barton gave this response his hands raised slightly, and the masked intruder fired the shotgun. The blast hit Barton almost point blank; both intruders fled the apartment. As remembered by the witnesses, the above events happened within three or four minutes.
When the police arrived, Barton was sitting in a chair, doubled over in extreme pain. The other witnesses were excited and in Gleitsman's case, hysterical. Officers Smith and Trotter took Barton to the hospital, then returned to the apartment to continue the investigation. Officer Smith testified that he saw about 10 beer cans, but no drugs. In his opinion, the witnesses appeared excited but not under the influence of any intoxicant. The next witness, Chief Doneske, stated that he assumed control of the investigation sometime later that morning. Both defense and prosecution stipulated to Doneske's qualifications as a firearms expert. He testified that the casing from a 9-millimeter automatic hand weapon was found on the floor of the living room. Wadding from a 12-gauge shotgun was also found, but neither of the weapons used was ever recovered. Another of his officers discovered Gleitsman in a car outside the apartment building and came across a 20-gauge shotgun shell under her dashboard.
Each of the witnesses admitted that he had been drinking Barton, two beers; Carnes, four quarts and three cans of beer; and Andrew Joseph, nine beers; but all denied that they were intoxicated.
Barton further testified that a policeman interviewed him the next day; he described the intruder and identified him as "John from Lyons." He also reiterated that Gleitsman stayed hidden in the bathroom throughout the home invasion. On cross-examination Barton was questioned about his previous meeting with defendant. He stated that defendant had come to his home with Rich Strucker, a mutual friend, and a young lady. The defense attorney asked Barton where Strucker was at the time of trial. Barton responded that Strucker had denied being in his apartment with the defendant prior to the crime.
Both Keith Carnes and the victim's wife, Diane, testified that they had seen the defendant at the Bartons' apartment that Thursday night before the home invasion. Keith Carnes admitted that although the defendant looked familiar on the night of the crime, it was three days before Carnes remembered where he had seen the defendant previously. During the home invasion, Carnes had two opportunities to view the defendant. Carnes first saw defendant as he entered the living room and later as Carnes was lying on the floor in the kitchen. Carnes, as well as Barton, made in-court identifications of defendant and commented that he was wearing clear eyeglasses during the incident. Andrew Joseph's testimony was consistent with that of the other witnesses but he could not make any identification of the intruder because he did not have an adequate opportunity to view him.
The defense called three people to the stand: Sergeant Trotter, a police officer; John Shadkowski, an alibi witness; and John Yuknis, the defendant. Sergeant Trotter wrote the police report and was the officer in charge until Chief Doneske arrived on the scene. He testified that shotgun pellets were found in the bedroom and kitchen and that wadding was discovered in the doorway of the bedroom. Blood stains in the hallway led to the entrance of the living room and through the doorway into the bedroom. He also stated that Carnes, Joseph and Gleitsman were all very intoxicated and that he could smell alcohol on their breath. On cross-examination, however, he wavered, saying that once the witnesses calmed themselves at the police station, they did not seem as disoriented and had much less trouble answering questions. Similarly, Trotter was questioned about statements in the police report attributed to Carnes and Joseph that both intruders were masked. Trotter admitted that there was quite a bit of confusion and in the midst of the excitement and hysteria, he might have been mistaken as to what the witnesses had said.
During his investigation, Trotter found a 20-gauge shotgun which had one "dirty" barrel. But he qualified his conclusion that the gun had been fired by specifying that it could have been discharged one to two months prior to the incident. Although blood stains were found near the living room, no pellets or wadding were discovered there.
The defendant next called John Shadkowski to substantiate his alibi. Shadkowski testified that he, defendant, and two other friends played cards the night of the incident. Following the card game, they went to various bars. He was, therefore, with defendant continuously into the early morning hours.
The final witness was defendant himself. He gave substantially the same alibi testimony as was given by Shadkowski but went on to detail his movements following that evening. After the card game and later activities, defendant went to his brother's home for the night rather than his own. Defendant explained that he had left the apartment a mess and he was afraid his wife would be angry. He felt that if he went to his brother's, she would have time to "cool off." At his brother's, defendant learned of the charges against him and fled ...