APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. SULSKI, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Henry and Edward Jones were each indicted for four counts of armed robbery. (Ill. Rev. Stat. 1975, ch. 38, par. 18-2.) Two of the counts were stricken with leave to reinstate upon the State's motion. A jury found both defendants guilty on the remaining counts. Henry was sentenced to a term of 4 to 6 years while Edward received 5 to 12 years. On appeal, they contend that: (1) testimony concerning threats allegedly made by Edward was erroneously admitted at trial; (2) the prosecutor violated his promise to introduce only an excised statement at trial; (3) they were prejudiced by the complainants' testimony that they were afraid to testify; (4) Henry was denied effective assistance of counsel; (5) the trial judge should have ordered a severance sua sponte; and (6) they were not proved guilty beyond a reasonable doubt. We affirm. The pertinent facts follow.
On September 4, 1976, there was a dice game on a third floor landing in a public housing project. At about 7:15 p.m. three men robbed the participants at gunpoint. Defendants were arrested and indicted for four counts of armed robbery. On motion of the State, two counts were stricken with leave to reinstate.
In its answer to discovery the State indicated that it intended to introduce at trial statements made by Edward Jones, the contents of which were contained in a police report. Prior to trial, Edward's counsel stated that the police reports referred only to statements made by Edward to Percy Thomas and that he had just learned that the State intended to use statements made by Edward to another complaining witness, Acie Matthews. Counsel requested that the State inform him of the contents of such conversations.
The State responded that the statement made to Matthews was identical to the one made to Thomas and that an excised statement would be used at trial omitting any reference to Henry Jones contained in the original. As an offer of proof, the State stated that it expected that Matthews would testify that he, Edward Jones and Percy Thomas were in the latter's bedroom. After he spoke to Thomas, Edward told Matthews:
"Sit down. I want you to hear this too. If you cooperate, nothing is going to happen and I will try to get money back. If you don't cooperate, I will get you. If I can't get you, I will get your family. If I can't get your family, I will blow up your house. If something happens to me, my friends will take over."
Edward's counsel made a motion in limine to bar the introduction of the statement since it was evidence of another crime, intimidation. Henry's counsel joined in the motion. The State argued that the statement showed identity and guilty knowledge on Edward's part and the motion was denied.
On the first day of trial the two complaining witnesses, Acie Matthews and Dan Adams, failed to appear in court pursuant to their subpoenas. Warrants for their arrest were issued to insure their presence for the following day.
The State's evidence at trial showed the following. At about 6:30 p.m. on September 4, 1976, Acie Matthews joined a dice game which was already in progress on a third floor landing. Matthews testified that the landing was well lit. Dan Adams and another victim, Percy Thomas, testified that they arrived at about 7 p.m. and others joined in the game. Matthews said that two women were present, but Thomas testified that there was only one. Matthews also testified that he saw Bobby McCall for about 5 minutes while Adams testified that he did not see McCall that night. Bobby Chester also watched the game for a short time and then left.
Matthews testified that at one point during the game Alvin Jordan and Henry Jones came down the staircase. Matthews had seen both of the men previously. Dan Adams asked, "[W]hat is happening?" to which Jordan replied, "What is the beef, punk?" and the two continued downstairs. Percy Thomas corroborated Matthews' account of this incident, but Dan Adams stated that Edward Jones was also with Jordan and Henry Jones.
The game was about to end at about 7:15 p.m. when Bobby Chester returned and encouraged its continuance. Several minutes later Henry Jones and Alvin Jordan came down the stairs. Henry Jones announced a stickup and told Bobby Chester to leave. Henry had a snub-nose revolver and Jordan had a switchblade. Matthews and Adams dropped their money and Matthews began backing down the stairs when his head bumped into a gun. He turned and saw Edward Jones holding a .357 magnum pistol. Edward told him to turn around or he would blow his head off. Matthews looked at Edward for 10 seconds. From a distance of about 5 feet, Dan Adams saw Matthews bump into Edward's gun. Contrary to his earlier testimony, on cross-examination Adams testified that this was the first time he saw Edward that evening. Percy Thomas also saw Edward for 4 or 5 seconds.
Edward stood at the top of the stairs while Henry blocked the door to the third floor and Jordan searched the victims' pockets. Jordan took various amounts of cash from the three men. Edward told Jordan to get it all and Jordan searched them again. Edward removed a watch from Matthews' arm, enabling him to see Edward's face a second time. After the robbery the victims were told to run up the stairs and not to look back.
None of the witnesses had ever seen Edward Jones before the robbery. Matthews testified that he viewed Edward for a total of about one minute. Adams viewed Edward for less than a minute while Thomas saw him for only a few seconds. All of the witnesses had seen Henry Jones on previous occasions.
Matthews called the police from his apartment, and Chicago police officers Kalemba and Senise responded to the call. Matthews told the police that he knew Jordan and gave them his address. He described the other two men as: (1) 5'7" tall, 135 pounds, approximately 21 years old, wearing a red tank top, jeans and a sun visor; and (2) 5'9" tall, 150 pounds, with his hair curled in the back, wearing a light-colored shirt and dark blue jeans. Adams and Thomas gave similar descriptions of the two other men. The three witnesses were taken to a police station where they identified Bobby Chester at a lineup.
Officers Kalemba and Senise drove the witnesses in an unmarked squad car for about 15 minutes before stopping at a street corner. Matthews and Adams testified that Thomas said he saw one of the robbers in a group of about 15 men. A lineup was conducted on the street and all three witnesses identified Henry Jones who was wearing a red tank top. At trial Matthews and Adams identified Henry Jones as one of the robbers and the man they picked out on the corner. Percy Thomas testified at trial that he was sure of his identification of Henry and Edward Jones, although he had earlier expressed concern that he may have misidentified Edward. He also stated that he saw both Henry and Edward on the street corner and saw Henry but not Edward arrested.
At about 11 a.m. the following day Edward Jones went to Percy Thomas' house. Thomas testified that he was in his bedroom when Edward came in and told him that he had the wrong man in jail. He warned Thomas about not cooperating with him when Matthews came into the room. Edward repeated the threat to Matthews who testified that Edward "told me if we cooperate and get us our money back. We don't cooperate he would get, if he don't get my family and if he don't get my family he will blow up my house. If he can't get me, his friends will." Edward opened his jacket and both Matthews and Thomas testified that they saw the gun Edward had used in the hold-up in a shoulder holster. On cross-examination Thomas admitted that he testified at a pretrial hearing that he had not seen a gun on Edward. After Jones left Matthews phoned the police and told them about the threat.
Officer Kalemba secured a photograph of Edward Jones. He showed Matthews five to 10 pictures including Edward's. Matthews identified Edward as one of the robbers. At trial Matthews identified Edward as the man whose photograph he had selected. Officer Kalemba turned Edward's photograph over to Chicago Housing Authority guards and Edward was arrested a short time later. Edward was taken to a police station and placed in a lineup. Dan Adams and Percy Thomas identified Edward as one of the robbers. Thomas later told police that he thought he had made a mistake.
At trial, Matthews, Adams and Thomas each identified Edward and Henry Jones as two of the robbers. On cross-examination Matthews admitted that he had told the State that he did not wish to testify and that he had lied to an assistant state's attorney before when he told him that he was unsure of his identification. Dan Adams also admitted during cross-examination that he lied before trial when he expressed doubt about his prior identification of Edward Jones.
Matthews and Adams testified that Dennis Reed, defendant Henry's friend, had spoken with them and Percy Thomas. Matthews testified that Reed told them that they had the wrong man and urged them to drop charges. Matthews testified that he had earlier expressed uncertainty about his identification because he was told to do so. In addition, he stated that while traveling to court on a public conveyance Henry Jones tried to convince him to drop charges. Over defense objection Matthews was allowed to testify that earlier that day Henry Jones had made threatening gestures to him outside the courtroom. Finally, in response to a question by the State, Matthews stated that although he was scared, he was telling the truth at trial.
Adams testified that Reed had urged him to drop charges. Adams said that earlier he had told an assistant state's attorney that he was unsure of his identification of Edward but that he was now sure that it was correct.
Two witnesses testified in defense. Bobby McCall testified that he was with Percy Thomas at about 5 or 5:30 p.m. on September 4, 1976. They injected themselves with heroin on the 14th floor of the housing project and at about 7 p.m. entered a dice game on the third-floor landing of that building. He and Thomas smoked marijuana during the game but he did not see Dan Adams smoke any. Alvin Jordan approached with a gun and announced a stickup. McCall saw another person with a gun and two or three others but he had never seen them before and did not know them. He also testified that Edward Jones accompanied the gunmen but did not have a gun and that Henry Jones was not one of the people with a gun nor did he accompany anyone with a gun. McCall never saw Bobby Chester at the game. After the robbery, some people ran upstairs and some downstairs.
McCall did not report the incident because he did not want to get involved. About a week and a half after the robbery he saw Percy Thomas. At that time Thomas told him that he had identified someone but that he was not sure.
McCall admitted that he had been a heroin user for about 1 1/2 years before the robbery and that he had pleaded guilty to burglary and a probation violation for which he received concurrent sentences of one to four years. Bobby Chester's brother was also a mutual friend of his and Edward Jones.
Henry's wife, Georgette, testified that on September 4, 1976, she saw her husband when she left for work at 9 a.m. and at 3 p.m. when she returned home. He left their home at 5:30 p.m. and returned at 6:40 p.m. where he remained until 9:30 p.m. On cross-examination she stated that when he came home at 6:40 p.m. he wore a rust-color sleeveless shirt and green pants. A friend of theirs was visiting and he and Henry watched television until 9:30 p.m. She next saw her husband after he was in custody. She attempted to locate the visiting friend for trial but was unable to do so.
The jury found each defendant guilty of two counts of armed robbery and this appeal followed.
Defendants contend that the trial court erred in allowing testimony regarding Edward's threats to Thomas and Matthews. They argue that it constituted evidence of another crime, intimidation, and that it did not show a guilty knowledge of the robbery on Edward's part since he had not been charged with the robbery at the time he made the statement. They argue that the statement merely showed Edward's concern for his brother and should not have been admitted at trial since it suggested that Edward committed the armed robbery. In addition, they argue that the statement which was to be introduced was to omit any reference to Henry. However, in response to the state's attorney's questioning, Percy Thomas testified that "[Edward] said, told me I had the wrong man in jail." Henry contends that the reference to "the wrong man in jail" suggested that he was responsible for the threats and that Matthews' testimony that Henry threatened him at trial strengthened this inference. Because Edward's statement could have been imputed to Henry to his detriment, he argues that its admission was improper.
1 Any attempted intimidation of a witness in a criminal case is properly attributable to a consciousness of guilt and is thus relevant. (People v. Gambony (1948), 402 Ill. 74, 83 N.E.2d 321, cert. denied sub nom. Gambony v. Ragen (1949), 337 U.S. 910, 93 L.Ed. 1722, 69 S.Ct. 1045; People v. Goodman (1977), 55 Ill. App.3d 294, 371 N.E.2d 168.) Edward recognizes this general rule but contends that the person must be suppressing information against himself and that since he had not been charged when the statement was made he was merely pleading for his brother making the exception inapplicable to him. The happenstance that Edward was not arrested immediately after the robbery does not lead to the conclusion that he was not acting in his own behalf when he threatened Thomas and Matthews. Looking at the circumstances as they existed at the time of the threats, it is arguable whether Edward was suppressing evidence against himself or pleading for his brother. At the time of trial, however, it was clear that he was acting, at least partially, in his own behalf. Had Edward been the sole robber in this case, there could be no doubt that he was attempting to suppress evidence against himself even though he had not been charged with the crime at the time of the threats and the evidence would be admissible. (See ...