APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendants, Herberto and Maria Flores, were found guilty of robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-1) and unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, par. 10-3) and were both sentenced to concurrent terms of 3 to 9 years for robbery and 1 to 3 years for unlawful restraint. Maria Flores' robbery sentence was later reduced to a term of 1 to 5 years. On appeal, they contend (1) that they were not proven guilty beyond a reasonable doubt and (2) that certain rebuttal argument remarks of the prosecutor were prejudicial. Additionally, Herberto Flores contends that the trial court erred in sentencing him without exercising its discretion with respect to whether he should have been treated under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.1 et seq.) as an alternative to incarceration. We affirm the convictions but remand on the sentencing question.
Defendants first contend that they were not proven guilty beyond a reasonable doubt of robbery and unlawful restraint. They argue that the testimony of Enrique Rivera, the complainant, was "incredible, contradicted on certain vital questions, and uncorroborated." We disagree.
Rivera, who spoke Spanish and understood very little English, testified at trial through an interpreter. He testified that on September 20, 1976, he left work at Division and Cicero streets at about 11:15 p.m. On the way home, he developed problems with his automobile lights and had to pull his car over to the side of a road and repair the lights. At about 2:30 a.m., he completed the repair work and continued on his way home.
Before arriving at his home in the 2700 block of Wabansia, Rivera stopped at the Park View Steak House restaurant at North and California Avenue for "a beer or two." He said that he entered the bar portion of the restaurant at about 3:30 a.m. While he was drinking, a woman and a man, whom he identified as defendants Maria and Herberto Flores, came into the bar and sat down beside him. Maria asked him if he would buy her a beer. He agreed and also offered to buy Herberto a drink, but Herberto did not accept the drink. A little later, Herberto asked Maria to ask him for a ride home. After Maria told him that they lived in the same area, around Wabansia, he agreed to give them a ride.
They left the bar together at about 4 a.m. and went to Rivera's car. When they arrived at the car, Herberto told Maria to sit in the front seat and said that he would sit in the back. Herberto sat right behind Rivera. Rivera drove them east down North Avenue and then turned north about two blocks east of Washtenaw. As they were approaching Wabansia or when they had entered Wabansia, Herberto grabbed Rivera by the neck with something "shiny" and told him, "watch it, no move." Soon, Rivera pulled his car over to the side of the street. Herberto, who continued to hold him around the neck with the shiny object placed near to his face, then told Maria to search him. During the search, Maria took $2 and a watch from him. She also took his wallet and threw it in the car. Then, either both of them or Herberto pulled him from the car and took him into an alley. In the alley, Herberto asked him where he kept his money. When he told Herberto that he had none, Herberto started punching him. At some point, Maria came over and told Herberto to stop hitting him. However, they grabbed him, took his belt, and tied his hands behind his back. Herberto pushed him against a wall and he fell to the ground. While he was sitting on the ground they took his shoes and Maria searched them to see if there was any money. At that point, someone, who had apparently heard the noise in the alley, called out, "what is happening?" Herberto and Maria then fled.
After waiting a while, Rivera, who was still tied and barefooted, ran to his house. He managed to ring the doorbell to his house with his arm and his wife answered the door. He told her to call the police. When the police arrived, Mrs. Rivera, who could speak "some" English, told the police what her husband had told her about what had happened. The Riveras then accompanied the police back to the alley where Rivera was beaten and there they found his shoes in a drum. Nearby, they found his car still running and his wallet lying in the car. Although they did not recover the two dollars or the watch, Rivera said that he did tell the police that they had been taken from him. He also admitted telling the police that he had been drinking at a place at 2004 West Fullerton on that evening.
The only other witnesses called to testify on the events which transpired in the morning hours of September 21 were Officer Robert Tovar and Maria Flores. Officer Tovar testified that at approximately 4:20 a.m. on September 21, 1976, he received a radio call and proceeded to 2751 West Wabansia. When he arrived there, he saw Rivera standing outside with no stockings on his feet. He said that he could not determine if Rivera had any shoes on at the time. Tovar stated that he could not speak Spanish but that he was able to communicate with Rivera through his wife who could make herself understood "fairly well." He said that at the time he was speaking with Mrs. Rivera, both she and her husband appeared upset. After talking briefly with Mrs. Rivera, Tovar and his partner, Officer Nick, drove the Riveras to the alley. There, the officers found Rivera's shoes in one of the drums and also found Rivera's wallet in his car which was parked close to the alley. Tovar drove Rivera's car to his house. He could not remember if the keys were in the car when he got in, but he said that he was not given the keys prior to entering the car.
Tovar testified that he made a police report of the incident. Under a place marked "property taken" in the report, he had written "none." He said that he wrote "none" because that was all that he was aware of at the time he filled out the report. He probably filled out this portion of the report when he was having difficulty communicating with the Riveras. He said that Mrs. Rivera could make herself known to him fairly well but that he would have to go over questions very slowly and make sure that she could "hopefully * * * fully understand them." He was not sure if she could communicate what had actually been taken from her husband. He also stated that in the narrative portion of his report he had indicated that nothing was missing that everything had been found. He said that once again he was referring to the property of which he was aware.
Tovar also indicated on his report that Rivera was drunk when he observed him. He based this observation on the late hour, Rivera's appearance, and the fact that Rivera had been to a tavern. He did state, however, that he could not recall smelling any alcohol on Rivera's breath.
Maria Flores, who was originally from Puerto Rico, testified that she entered the bar with Herberto, who also was originally from Puerto Rico, but that he went to the washroom before she sat down. She sat down two stools away from Rivera, whom she said she knew was from Mexico, and after a while he said hello to her. After she returned his greeting, he told her that he had stopped at the bar to have a few drinks after work. She said that he did not appear drunk to her. When Herberto returned from the washroom and asked her if she was ready to leave, Rivera offered to drive them home. They agreed and the three of them left the bar together. When they drove up Wabansia, Rivera put his hand on Maria's knee. She gestured for him to remove his hand. Although she did not say anything to Herberto, she partially turned around and she "guessed" that Herberto saw her. Herberto then told Rivera to stop the car. After he did, Herberto grabbed Rivera, pulled him out of the car, and started hitting him. Eventually, Maria came over and told Herberto to stop hitting him. She then said that they should leave and that he should "forget it."
1 We find that this testimony was sufficient to support the verdicts of the jury. It is well established in Illinois that the testimony of one credible and positive witness is sufficient to sustain a conviction even though the testimony is contradicted by the accused. (People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182; In re Winslow (1977), 46 Ill. App.3d 962, 361 N.E.2d 622.) A witness' testimony may be credible and positive even if there are minor inconsistencies in his testimony. (People v. Berry (1975), 35 Ill. App.3d 172, 341 N.E.2d 45.) The determination of the credibility of a witness is made by the trier of fact, and we will not reverse a conviction based largely on that determination unless the evidence was so improbable as to raise a reasonable doubt of guilt. People v. Novotny.
Rivera's testimony was both credible and positive on all material matters. He positively identified both defendants and his testimony indicates that he had ample opportunity to view defendants. His recitation of the basic facts concerning the robbery and unlawful restraint remained unshaken throughout his testimony. The only real inconsistencies in his testimony involved matters such as whether Herberto grabbed his neck when they were entering Wabansia or when they were approaching Wabansia and whether both defendants or just Herberto pulled him from his car. These matters were no more than minor discrepancies. (In re Winslow.) Also, Rivera's recitation of facts was not so improbable as to raise a reasonable doubt of guilt. Defendants have argued that it is "incredible" for Rivera to testify that it took one hour to drive from the vicinity of Cicero and Division to the area near North and California where the Park View Steak House was located. With respect to that argument, we note simply that even if there were support in the record for such an argument, Rivera only testified to approximate times of departure and arrival.
Defendants argue a number of other reasons why we should consider Rivera's testimony incredible. First, they argue that Officer Tovar's testimony that he thought Rivera was drunk was "noteworthy." Although Tovar did testify that Rivera was drunk, we question this testimony in light of his stated reasons for making such an observation and his failure to recall smelling any alcohol on Rivera's breath. Also it must be remembered that there was ...