APPEAL from the Circuit Court of Cook County; the Hon. JOHN A.
NORDBERG, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, George Peter Connors, was found guilty of the armed robbery of Alonzo Weems and sentenced to 6 to 12 years in the penitentiary. On appeal defendant raises three points of error in the trial court proceedings and contends that each was sufficiently prejudicial to mandate the reversal of his conviction. He first objects to the admission of evidence concerning a second robbery, perpetrated earlier the same day as the crime for which he was tried here. On this same issue, he asserts that a jury instruction which failed to limit the jury's considerations of the other offense compounded the error. He also claims two instances of reversible error in regard to the comments of the prosecutor during closing arguments: first, when the prosecutor suggested to the jury that they could draw the proper conclusion from matters excluded under the rules of evidence; and second, when the prosecutor commented on the defendant's failure to testify.
On January 18, 1977, at about 11:35 p.m., Alonzo Weems was in the 100 block of North Lotus, stepping from his car, when he was approached by a man wearing a greyish wool cap and dark jacket and holding a small caliber blue or black automatic gun. The man approached Weems and stated "don't make me shoot you."
Weems testified that the lighting was good, and the robber, whom Weems identified as defendant both at a lineup prior to trial and later in court during the trial, faced him for 15 to 20 seconds. Weems stated that he tried to walk away but defendant grabbed his arm and forced him into the rear of a gangway between two houses. Defendant asked Weems where his money was. When Weems replied that it was in his coat pocket, defendant took the money and asked that the coat, gloves and jewelry also be removed. After telling Weems not to look back, defendant gathered these items and a wallet and ran toward the street. The whole incident encompassed about 1 1/2 to 2 minutes.
Weems described the coat as three-quarter length, red leather with four pockets, and containing a tag that said tailored for Alonzo Weems. The wallet was also distinctive with the words G and G Production printed on it in gold. He described the robber as 5'10" to 5'10 1/2" tall, and about 145-150 pounds. Weems also testified that as the first man approached the car, Weems saw another man about 20 to 25 feet away. The individual never came any closer, however, and Weems was unable to identify him any more specifically than that he was about 6' tall.
On cross-examination, Weems stated that the first robber was 5'7" to 5'8" tall. He did not remember what kind of car he was driving or specifically where in the city he had been for the three hours prior to the robbery since he had been lost.
At this point in the trial, following Weems' testimony and before police witnesses were called, the defense made a motion in limine, objecting, as it had during opening statements, to the introduction of testimony concerning a crime other than the one for which defendant was on trial. During his opening statement, the assistant State's Attorney had commented in relation to expected testimony by the police officers:
"[T]hey will also tell you that they were in the area in the first place for an armed robbery that had occurred at about 7:30 that evening or about four hours before this one and they were looking for a specific car that was taken and that [sic] 7:30 armed robbery that car being a '65 Oldsmobile with a certain license number 76 Illinois JE 8957 I think was the number."
As these statements were made, the defense objected and, when the objection was overruled, made an offer of proof. The defense argued that the automobile robbery was unrelated to the robbery of Alonzo Weems. The court asked the assistant State's Attorney the basis for the introduction of the evidence. He responded that it was incident to the arrest and that it indicated a plan, propensity, or identification of the offender. The trial court then overruled the defense objection.
The second objection to this evidence occurred immediately prior to the testimony of the second prosecution witness, Officer Cannon. This motion in limine focused on the improper use of a police officer to establish by hearsay defendant's commission of another crime. Defense counsel reiterated that although the door had been opened to such evidence because of the prosecutor's opening statement (and presumably the court's rulings on such evidence), if the State was going to use the prior crime to establish motive, intent, or whatever, the specific act would need to be proved by competent evidence. The defense also repeated its assertion that the prior crime was irrelevant to the issues in this case and the prejudice to defendant far outweighed any probative value it might have. The court ruled that the fact that the car was stolen had to be established by direct testimony but that "If they say, reported to have been stolen so that explains the reason why [the police officers] are viewing the defendant, I'll permit that because I think that is probably admissible."
Officer Cannon testified that on the day of the robbery, he and his partner went to the area of 165 N. Pine because they heard a radio call of the Weems robbery, which had just occurred at 122 North Lotus. They observed a black or brown Oldsmobile parked on the corner of Pine and West End, about a half block from the North Lotus location. Two male Negroes exited the car, passing through the headlights of the police vehicle. The officer recognized one as a man known as "Pete" and saw that he was carrying a red leather coat over his arm and had a cream colored knit cap on his head. As they drove past the Oldsmobile the officer noticed that it fit the description of an automobile stolen in a robbery earlier in the day. Defense counsel objected and, after being sustained, moved at sidebar for a mistrial. This motion was denied. The prosecutor renewed his questioning: "the vehicle in question was reported stolen in an earlier armed robbery, is that not correct?" Once again, an objection was raised and sustained; a motion for a mistrial was again made. The court stated that it would hold the motion in abeyance until the State put on direct, admissible evidence tending to show modus operandi.
Following the sidebar, the prosecution once again asked about the automobile. The officer responded that he had noticed the vehicle because of a radio message earlier that day. Once again, an objection was raised and overruled. Officer Cannon testified that the license number was verified as that of the stolen car. Backup cars were requested. A description also came over the radio of the two robbers of Alonzo Weems; five foot seven or eight inches tall, male Negroes, dark clothing, with one of the men wearing a light colored skull cap. The items taken from Weems were also described.
Officer Cannon saw the two men enter an apartment building across from the car and emerge from it about 10 minutes later. When the men returned to the vehicle, now verified as stolen, the officers converged on car. Defendant left the automobile and started towards the building, but was immediately arrested. Officer Cannon then went to the apartment building, which was approximately seven stories with 40 apartments on each floor. Both officers proceeded to an apartment on the second floor and were allowed to enter after they told the man who opened the door that they were investigating a robbery. A red leather coat was found in the apartment with a .25 automatic in the right front pocket. A wallet with Alonzo Weems' identification in it was also discovered.
Officer Hoffman, Cannon's partner on the night in question, testified next. His testimony substantially mirrored that of Cannon, but he added that he took the other man in the car with defendant into custody. Hoffman had a conversation with the second suspect, Williams: "I asked him where he just come from and where the coat had been taken to." The assistant State's Attorney then asked, "Officer, did the man you're talking about as Mr. Williams answer that question, just tell me, yes, or no?" Hoffman answered, "Yes sir," and the assistant State's ...