APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
On July 21, 1977, Isiah Braxton and James Gore were charged by information with the offense of armed robbery. On September 22, 1977, the assistant public defender appointed to represent Braxton filed an answer to the State's discovery motion. On December 9, 1977, immediately prior to trial, Braxton was denied leave to amend the answer. Braxton waived his right to trial by jury and proceeded to a bench trial which was conducted simultaneously to but separately from the jury trial elected by James Gore. Braxton was found guilty as charged and on January 13, 1978, was sentenced to imprisonment of not less than four years nor more than eight years. Braxton appeals.
On appeal, Braxton contends that (1) the trial court erred by denying defendant's motion, made on the day of trial, to amend his answer to discovery; (2) the in-court identification of the defendant by the complaining witness was insufficient to sustain the conviction for armed robbery; (3) testimony regarding the complaining witness' out-of-court identification of the defendant and the weapon alleged to have been used in the armed robbery was hearsay evidence and therefore improperly admitted; (4) defendant was denied his right to a fair trial when the State was permitted to introduce into evidence a weapon which was not connected to the offense for which defendant was charged; (5) the right to confront and cross-examine his accusers was violated because the trial court refused to allow cross-examination of the complaining witness regarding his testimony at the preliminary hearing; and (6) comments by the State during closing argument denied defendant his right to a fair trial.
The defendant Isiah Braxton and his co-indictee James Gore were charged by information on July 21, 1977, with the offense of armed robbery. Braxton waived a jury trial while Gore elected trial by jury. Both trials were conducted simultaneously.
On September 22, 1977, the assistant public defender appointed to represent Braxton filed an answer to discovery in which he stated that Braxton's defense would be the inability of the State to prove Braxton's guilt beyond a reasonable doubt. The answer listed as possible witnesses the defendant, those persons named in the State's answer to discovery and in police reports, and those who previously testified in hearings on the cause. On Friday, December 9, 1977, the day of trial, defense counsel sought to amend his answer to assert the defense of alibi and include the wife of defendant, Thelma Braxton, as a witness. He stated that he had given the State notice of amendment on Wednesday and made Mrs. Braxton available on Thursday for interviewing by the State. The trial court denied the motion to amend, and stated that by waiting until the 117th day of the term to inform the State of the intention to assert an alibi defense, the defense had precluded the State from making a meaningful investigation of any witnesses to that defense.
Defense counsel then made a motion in limine to exclude evidence of other offenses and prior convictions. The trial court ruled that the State could introduce only evidence showing that the defendant was arrested by officers responding to a call unrelated to the instant offense and that two weapons were then confiscated. The nature of the arrest and the proceeds confiscated during the arrest could not be introduced. The court also ruled that a prior conviction could be introduced for impeachment purposes if the defendant chose to testify.
The State's first witness, complainant Garnett Baskerville, testified that on June 6, 1977, at approximately 2 p.m., he arrived at his mother's apartment at 8004 South Langley with his roommate James Henri to remove the remainder of his belongings. The witness had moved from his mother's apartment the previous day. The witness' cousin Emilinon Desadier, met them at the apartment and at approximately 2:30 p.m. the men had completed carrying the belongings from the apartment to the car. Henri remained in the car while Baskerville and Desadier returned to the apartment to make certain that the doors were locked. As Baskerville started to close the door to the porch at the back of the apartment, it was forced open and the witness observed four men outside the door. He identified two of these men as being Braxton and Gore. He stated that, at the time, Braxton was holding a short-barrelled, black gun which he proceeded to point at Baskerville's head. Baskerville then identified People's exhibit 1 as the gun Braxton was holding. The identification was based on the size and color of the gun. The witness also testified that the lighting conditions were fairly bright.
Further testimony revealed that after the door was forced open, Braxton put his hand on Baskerville's shoulder and pushed him approximately 5 or 6 feet into the living room and onto the floor. While on the floor, Baskerville was able to look into a mirror on the wall three feet away and observe his assailants. Braxton remained in the living room and placed the barrel of the gun behind the witness' ear. Another man went to the rear of the apartment and Gore and a fourth man entered Baskerville's mother's room. Braxton then told Baskerville that he would "take [him] out of the game" if he moved or tried to look at him and placed his foot on the upper part of Baskerville's back. Braxton kept the gun pointed at Baskerville. Baskerville testified that Gore returned to the living room from the bedroom after about 15 seconds. Braxton asked the witness if he had any money. Baskerville stated that he did have money and removed $35 from his left-hand pocket. This money and a gold ring with a diamond chip were taken from Baskerville. Braxton took the ring, but the witness was not certain who took the money from his hand. During this time, Baskerville could hear drawers and a closet door in his mother's room being opened and closed. He then heard a commotion in the rear of the apartment and the man who had gone back there ran out. The other three men followed him.
Baskerville immediately ran to a window facing Langley Avenue and saw the four men running down the street to the right of the apartment building. The witness testified that Braxton was wearing a black leather jacket, black pants and top, a black hat, and sunglasses, and that the hair on his face was beaded up. He also stated that Braxton was five feet seven or eight inches tall and that Gore, who was six feet one or two inches, "towered over" Braxton. Gore was wearing light green pants and a green shirt with flowers. Baskerville called the police after the assailants fled and spoke with them when they arrived.
Baskerville had no further contact with the police until June 16, 1977. On this day, he received a call from his mother at 10 or 10:30 a.m. and, as a result, went to the police station at 85th and South Green with his roommate James Henri. As Baskerville entered the police station he observed Braxton handcuffed to a wall in a room off the lobby area. He immediately informed a lieutenant in the station and told Officer Higgins that Braxton was the person who had robbed him at his mother's apartment. He also identified a gun (People's exhibit No. 1) as the gun that he believed was used by Braxton during the robbery.
On June 17, 1977, Baskerville attended a preliminary hearing against Braxton. While before the bench, the witness observed Gore standing in back of the courtroom. As Baskerville pointed out Gore to Officer Higgins, Gore left the courtroom. Higgins and Baskerville followed and Officer Higgins apprehended Gore outside the building.
On cross-examination by defense counsel Baskerville testified that he gave a description of Braxton to the officers responding to the call. He also testified that he had told the assistant State's Attorney and Officer Higgins about the mirror in the living room, but that he did not recall if he told the officers who responded to the call about it. Counsel then asked the witness if he had testified at the preliminary hearing to observing Braxton in the mirror; however, the State's objection to the question was sustained.
Derenza Baskerville, the complainant's mother, testified that on June 16, 1977, she lived at 8004 South Langley, Chicago. At approximately 8 a.m. she left her home for work. While at work, she received a phone call from her niece and, as a result, phoned her home and spoke with a police officer. She then called her son, Garnett Baskerville, and went to the police station at 85th and South Green. When Derenza Baskerville arrived at the police station, she was directed to a room to the right of the front desk. Garnett Baskerville arrived at the station approximately 10 or 15 minutes later. Mrs. Baskerville went to the front desk to meet her son and as she approached the front desk, she heard him inform the police officers that the individual sitting in the room to the left of the front desk was one of the men who had robbed him. The witness had an opportunity to see the ...