APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE FAWELL, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants Arthur Larson and Louis French were found guilty of armed robbery. Defendant Larson was sentenced to 15-20 years' imprisonment, and defendant French was sentenced to 50-100 years' imprisonment. Defendants appeal.
The Lizzadro Museum of Lapidary Arts is located in Elmhurst, Illinois. The museum itself sits in the south portion of Wilder Park, across from Immaculate Conception High School. The museum collection is family-owned and displayed for the public and consists of precious and semiprecious stones, some cut stones, some minerals and fossils, stored in glass cases. The museum itself has two levels; the main level and the lower level where a gift shop, rest-rooms and auditorium are located. On the afternoon of July 1, 1975, the museum was robbed. A yellow Sapphire valued at $55,000 and an Alexandrite valued at $24,000 and a 183-carat Sapphire were found to be missing, as well as several smaller stones. Due to the circumstantial nature of the evidence against defendants, it is necessary to set out the testimony given at trial in some detail.
Judith Greene testified for the State that she was employed as an executive secretary at the Lizzadro Museum and also served as a receptionist to greet patrons as they entered the museum. Her desk and the reception area were on the main floor near the entrance. At about 3:45 p.m. on the afteroon of July 1, 1975, a young girl came into the museum and asked to use the restrooms, which were located downstairs. Ms. Greene gave her permission and the girl went downstairs. The next thing the witness remembered was hearing a very loud crash coming from the center of the main floor of the museum. She estimated that it was about a minute or several minutes between the time the girl went downstairs and the time of the crash. Upon hearing the crash she moved from her desk to the reception counter, approximately three feet away. As she looked over to her right she saw the back of a figure in front of a glass case. She observed something blue in color; she then believed that she was being shot at and dropped under her desk.
George Nicholas, Jr., testified for the State that on July 1, 1975, he was employed at the Lizzadro Museum, selling items in the gift shop and doing odd jobs around the museum. At approximately 3:45 p.m. that day he was working in the back room of the gift shop located on the lower level of the museum, when he heard glass shattering. He then heard what appeared to him to be a couple of shots going off upstairs; then he began walking toward the stairway. Next he observed two men run past him and throw an M-80 (firecracker) at him. The two men ran toward the doorway and Nicholas observed them leave the building through the door on the west side. At that point he was about 20 feet distant from them and had viewed them for two or three seconds. Nicholas stated that while he was "not exactly positive," defendant French resembled one of the two men he saw. Nicholas described one of the men as wearing a blond wig and possibly a blue work shirt. The other man was wearing a white beach hat (a turned-down sailor's hat) with some color to it and seemed to be concealing something large under his clothing. On cross-examination, Nicholas did not remember telling police that both men were in their mid-20's. He was not sure that he worked on the identikit composite drawing, nor that he saw it that day, and did not remember telling police that the man in the composite was to be in his late 20's, 5'10" tall and weighing 180 pounds. He believed that the man wearing the beach hat had pants cut off at the knee; he did not recall seeing a red wool stocking cap. He remembered something like a nylon stocking covering the face of one of the men, but did not remember telling the police about any nylon stocking; nor did he recall if either man wore glasses. On redirect, Nicholas testified that defendant French looked very much like the man he saw leaving the building.
Terrance Lanigan testified for the State that on July 1, 1975, he was employed as a painter at Immaculate Conception High School, located across the street from the museum in Wilder Park. On that afternoon he was painting a window on the third floor of the high school when he observed two men jogging toward the high school; between them they carried a bag resembling a gym bag. The witness watched the two men until they ran across the parking lot and out of sight. According to Lanigan, one of the men wore a dark shirt and light pants. The witness also observed that one man had what appeared to be a nylon stocking covering his face and he observed a stocking cap on one of the men. Later, on the school grounds, the witness discovered a hammer with reddish stains and tape all over it. According to Lanigan, defendant Larson resembled the man wearing the nylon stocking over his face. Paul Beranek testified for the State that he was working at Immaculate Conception High School with Lanigan at about 3:45 p.m. on the day in question. He also observed the two men jogging and identified defendant Larson as resembling one of the men. However, on cross-examination, Beranek admitted that he was not sure of the identification.
Carol Raimondi testified for the State that about 3:45 p.m. on the day in question she saw two men changing clothes in the bushes adjacent to the Illinois Bell Telephone Company parking lot, located one block east of Wilder Park. One of the men was slender, about 5'7" or 5'8" tall and had a full head of grey hair. Later she returned to the site and found some clothing and a hammer. She subsequently found a multicolored hat by the office building which she said had been worn by the man with the grey hair. On cross-examination, she testified that she did not see the faces of the men she observed.
William Long testified for the State that on July 1, 1975, he was employed by the telephone company. At about 3:45 p.m. he was cleaning up the company parking lot when he noticed two bicycles. As Long was about to lock up the bicycles, a man with long hair, a sweat-band around his forehead, wearing a faded-looking, dirty white undershirt came up to him. According to Long, the man resembled defendant Larson. After looking at each other for a minute, the man got on one of the bicycles, a three-speed, yellowish tan color with a tan seat, and left. The other bicycle was off-red; afterwards, when Long looked for it, it was gone. Shortly after the man left, Long heard something that sounded like fireworks coming from Wilder Park. On cross-examination, Long denied telling the police that he saw two white male subjects in their late 20's proceed on two bicycles. Long did not observe any tattoos or other identifying characteristics on the man's body. Long described the man as having the beginnings of a moustache and that he told someone about the moustache at the police station, although the identikit which was made up from Long's description had no moustache. Long did not recall telling the police "that the second subject got on a light green, three-speed racer bicycle, English-style, chrome fenders, back seat?" On redirect, the witness stated that defendant Larson was about the height of the man he saw.
Marilyn Lees testified for the State that she had been introduced to defendant French by Alberta Meyer and saw him quite frequently thereafter. Both defendants had stayed at her townhouse in Hoffman Estates. Prior to July 1, 1975, at defendant French's request, she had purchased two dark shirts, the largest she could find. On June 30, 1975, she observed some bicycles attached to the back of her car which defendant French had been driving; one bicycle was yellow with a black seat, and the other was bronze with a camel-colored seat. Defendant French indicated to her that the next day (July 1) would be a big day. Early on July 1, the two defendants left in the car with the bicycles. Either that night or the next day defendant French gave her a couple of pairs of cut-off jeans, a white shirt with embroidery and a sailor hat and told her to burn them. The witness later turned the shirt over to the authorities, the rest she threw out. In the days following the incident the witness and the defendant, French, travelled several times to Chicago or Oak Park. On a trip to a florist, defendant French brought along a stone wrapped in toilet tissue. After having been gone an hour, defendant French came back to the car without the stone and stated that it was being checked out, but that it might not be worth too much. Later the witness was instructed by defendant French to take a jewel box to an attorney. Upon doing so, she subsequently was given an envelope containing money. Meanwhile, the witness picked up a small, dark stone in her vacuum cleaner and saw defendant French breaking up a big boulder on her patio. She also discovered a gold-yellow stone between her mattress and box-springs. On cross-examination, Ms. Lees testified that in 1976 she discussed the problem she was having with her 19-year-old son with Officer Sortino of the Schaumburg police. It was then that she told Sortino about defendant French and the goings-on in her house.
Alberta Meyer testified for the State that she was married to defendant French and that they were divorced in 1968. The witness lived about three blocks from Marilyn Lees in Hoffman Estates, which was about 25-30 minutes from Elmhurst. On July 1, 1975, at about 4:30 p.m., both defendants pulled up to her patio on bicycles; both men were wearing cut-offs. The defendants sat at her kitchen table with some stones; one was like a big rock and the other was gold in color; defendants were putting the rocks on a scale.
Amelia Barthell testified as a court's witness, as requested by the State, that she is the daughter of Alberta Meyer and the defendant, French. She arrived at her mother's house about 5 p.m. on July 1, 1975. The two defendants were seated at her mother's kitchen table looking at some stones on the table. The witness had also lived with Marilyn Lees after July 1, 1975. While she lived there she observed defendant French empty out a vacuum cleaner and discover a small, black stone. The witness denied going to the Lizzadro Museum on July 1 or opening the museum doors for the defendants; however, she admitted that she had told the Du Page County grand jury that she had opened the doors for the museum on the day in question to enable the two defendants to enter.
Elmhurst police officer Charles Schwaegerman testified that at the museum on the day in question he was given two unexploded M-80 firecrackers and a ball peen hammer with a taped handle. The witness observed broken glass on the floor near the display case. Elmhurst police officer Joseph Winkler testified that he recovered certain objects, namely, a blond, short-haired wig, an article of blue clothing and a hammer in an area near the Masonic Hall, about one block from the museum. These pieces of evidence were turned over to the evidence technician. Officer Richard Hargreaves, the evidence technician, testified as to the chain of custody of the various items of evidence. One of the pockets of the blue garment contained two M-80 firecrackers, some tape and a brochure from the Lizzadro Museum. Lawrence Mulcrone, special agent for the Illinois Department of Law Enforcement, testified for the State that he received two pieces of rock and a white, embroidered T-shirt from Marilyn Lees. From Irwin Cohen the witness received a ring with a green stone.
John Fernandez testified for the State that defendant French came into his store in the fall of 1975 and stated something about a big robbery with bicycles; he also mentioned firecrackers. Irwin Cohen testified that in the summer of 1975 he received a ring from defendant French. In June 1977, he gave the ring to agent Mulcrone.
Officer Charles Schwaegerman testified for the defense that he had spoken with Judith Greene following the robbery, that she was very shaken up, and stated that she had only caught a glimpse of the robbers and was not sure how good her description would be. She described both men as Caucasians in their late 20's. George Nicholas told Schwaegerman that one of the men was about 30, about 5'9" tall with a slender build; the second man, according to Nicholas' description, was younger, 5'10" tall with a medium to stocky build.
Defendant Louis French testified that he won a ring in a card game with Irwin Cohen and a friend of John Fernandez' named Mikie Salano, who had lost money in the game and borrowed from defendant French against the ring. Defendant French gave the ring to Cohen to whom defendant French had lost money and never saw the ring again; nor had he ever seen it before. The witness testified that he and defendant Larson had been in Alberta Meyer's home in August of 1975 and had discussed the contracting business. Defendant French denied ever having been to the Lizzadro Museum, denied ever seeing the hammers which were in evidence, or the M-80 firecrackers. The witness stated that he was not at Alberta Meyer's house when the rocks and stones were displayed. He also denied meeting defendant Larson before that day in August at his ex-wife's house. Defendant French denied directing Marilyn Lees to a shop, going in and returning with money.
Delores Crahton testified for the defense that she is defendant Larson's mother and that her son had tattoos on his arm. Mrs. Crahton further testified that at approximately 3 p.m. on July 1, 1975, defendant Larson and his wife, Judy, the witness and the witness' other son, Frank, and his wife left by car to drive to Johnson City, Illinois, to visit the witness' father, who was gravely ill; they arrived in Johnson City around 10 p.m. on the same day. Defendant Larson stayed the weekend, returning to northern Illinois the following Tuesday. Mrs. Crahton's testimony was corroborated by the testimony of defendant Larson's wife, Judy, and a co-worker of Judy's, Janet Baranowski.
Defendant Larson and defendant French stood back to back to demonstrate that they were both about the same height. Defendant Larson then displayed for the court the tattoos on his arm. Defendant Larson testified that on July 1, 1975, he left with the other members of his family around 2 p.m. for Johnson City, Illinois, and arrived there about 10 p.m. He stayed in Johnson City six or seven days. He denied ever going to the Lizzadro Museum in Elmhurst. He further denied being at Marilyn Lees' house. Following closing arguments, the jury found the defendants guilty of armed robbery, and the defendants were sentenced as stated above. They now bring this appeal.
1 Defendants contend first that there was insufficient evidence to find them guilty beyond a reasonable doubt. The State concedes that the evidence against the defendants is primarily circumstantial; however, it is well settled that a conviction can be sustained on circumstantial evidence. (People v. Burke (1979), 71 Ill. App.3d 242, 389 N.E.2d 265.) Generally, circumstantial evidence which produces a reasonable and moral certainty that the accused committed the crime is sufficient to justify a conviction: the test is whether the evidence as a whole shows that the accused and no one else committed the crime. (People v. Marino (1970), 44 Ill.2d 562, 256 N.E.2d 770.) Further, to warrant a conviction of a crime on circumstantial evidence, the facts proved must so thoroughly establish the guilt of the accused as to exclude every reasonable hypothesis of his innocence. People v. Grizzel (1943), 382 Ill. 11, 46 N.E.2d 78.
Rather than repeat the details of the testimony set forth above in this opinion, suffice it to say that we believe the testimony by the State's witnesses wove a strong web of circumstantial evidence about the defendants. The testimony of Marilyn Lees outlining the activities of the defendants both prior to and following the robbery leads to the almost inescapable conclusion as to the involvement of both defendants in the robbery of the museum. Ms. Lees' testimony was further corroborated by the testimony of defendant French's ex-wife, Alberta Meyer, and his daughter, Amelia Barthell. Both Alberta and Amelia testified that they saw the defendants at the Meyer home with stones; later, Amelia saw defendant French empty one of these stones from a vacuum cleaner in the Lees home. Marilyn Lees also testified as to having found a yellow stone between her mattress and box-springs.
While none of the occurrence witnesses were able to positively identify either of the defendants, according to witness George Nicholas, defendant French resembled one of the two robbers; three other witnesses testified that defendant Larson resembled the other man. Witness William Long testified that a man resembling defendant Larson rode off on a bicycle similar to the one attached to Marilyn Lees' car. Also, found near the scene of the robbery was a blue shirt, similar to the ones Marilyn Lees had been instructed by defendant French to purchase and which had also been observed by Judith Greene in the museum. In one of the pockets, the police discovered two M-80 firecrackers, some tape and a brochure from the Lizzadro Museum. Further, John Fernandez testified as to a conversation with defendant French in either the summer or fall of 1975, in which French made reference to a robbery involving firecrackers and bicycles.
2 While defendants argue that no positive identifications were made by any of the State's witnesses, it is well settled that the identity of an accused may be established by circumstantial evidence. (People v. Darrah (1974), 18 Ill. App.3d 1018, 310 N.E.2d 448.) While the State concedes that the identifications were somewhat tentative, there were several identifications which were sufficient to conclude that the defendants strongly resembled the two robbers. Therefore the State submits, and we agree, that given the large amount of circumstantial evidence strongly demonstrating that the defendants were the two robbers, direct evidence in the form of positive identifications was unnecessary in view of the overwhelming evidence linking the defendants to the crime. Further, discrepancies as well as any weakness in the manner in which identification is made only affects the credibility of the witness and the weight to be given his or her testimony; "it is the task of the trier of facts to `evaluate the weight to be given to the discrepancies.' [Citation.]"; and the decision of the trier of fact will not ordinarily be disturbed on appeal. (People v. Nichols (1975), 32 Ill. App.3d 265, 268, 336 N.E.2d 194, 196.) There appears no compelling reason to disturb the decision of the jury in the present case.
While defendant Larson alleged an alibi defense, it is well established that the jury is not obligated to believe alibi witnesses. (People v. Polk (1973), 10 Ill. App.3d 408, 294 N.E.2d 113.) The alibi testimony merely created an issue of fact to be determined by the jury. (People v. Toles (1975), 30 Ill. App.3d 837, 335 N.E.2d 188.) While defendant Larson, his wife and his mother testified that they left for Johnson City about 1 1/2 hours prior to the time of the robbery, the State's witnesses testified that Larson was at Alberta Meyer's residence the ...