APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
J. PETERS, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1980.
Defendants Tedder and Nettles were charged with burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1), armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2) and aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4). Their first trial resulted in a mistrial due to improper opening statements by the prosecutor. Following a second jury trial, defendants were found guilty as charged, except Nettles who was found not guilty of aggravated battery. Defendants were sentenced to a term of 6 to 18 years for burglary and 30 to 50 years for armed robbery. Tedder was also sentenced to 3 to 9 years for aggravated battery. Both defendants' sentences were to be served concurrently.
Defendants raise the following issues on appeal: (1) they were denied their constitutional right to the effective assistance of counsel; (2) there was no probable cause for their arrests and the direct and derivative facts of the arrest should have been suppressed; (3) they were denied their constitutional right to a speedy trial; (4) the trial court erred in denying them use of a composite sketch for impeachment purposes; (5) they were not proven guilty beyond a reasonable doubt; (6) they were denied a fair trial by the prosecutor's closing arguments; and (7) their sentences for armed robbery are excessive.
On August 12, 1976, at about 3:30 a.m., Mrs. Ruth Fruehling was awakened by a loud noise while she was alone in her home at 320 South Greenwood in Park Ridge, Illinois. She got up, turned on a light and walked to the front door to see if it was raining. She then turned on the light at the top of the basement steps and proceeded down the stairs to the basement. Before she reached the bottom of the stairs, the light went out and she was grabbed and told not to scream. When she cried out, she was pistol-whipped across the head for about five minutes which resulted in a deep gash on her forehead.
Defendants then demanded a coin collection which they contended she had previously shown to another lady. When she denied knowledge of any such collection, Tedder, described as the short, muscular defendant, went upstairs to search the house while Nettles, identified as the tall, skinny defendant, remained in the basement with her. When the upstairs hall light was turned on again, Mrs. Fruehling noticed that both men had guns and flashlights and were wearing surgical gloves. She saw their faces because neither man wore a mask. Nettles kept a gun pointed at her for the next 20 minutes. He put his flashlight down on the steps, and it provided additional illumination in the basement. She noticed that Nettles had "deep penetrating eyes," and was wearing round-toed beige earth shoes.
When Tedder, the defendant who beat her, returned, he stood close to her with his gun pointing at her. He was wearing a gray T-shirt with short sleeves and had tattoos on his arms. Tedder asked Nettles what to do with her. Nettles replied, "Do you want to silence her?" Tedder then threatened to kill her if she told anyone about the incident, and the two left through the basement door that they had earlier broken to gain entry. At various times that evening, the face of each defendant had been within nine inches of the face of Mrs. Fruehling.
After they left, Mrs. Fruehling realized that her head was bleeding profusely. She went upstairs to make a telephone call but found that her telephone cord had been cut, her bedroom and dining room drawers ransacked and $117 stolen from her purse. She went to a neighbor's house and called the police. Several stitches were required at the hospital to close her head wound.
On September 21, 1976, Mrs. Fruehling viewed a lineup at the Area 6 police station in Chicago. When the curtains covering the one-way window of the lineup room were opened, she immediately recognized Tedder as the short, muscular intruder, and exclaimed, "Oh, my God. There's one of them." She then immediately identified Nettles as the tall, skinny intruder. She also identified defendants in court as the intruders in her basement that evening.
On cross-examination, Mrs. Fruehling recalled that she described the two assailants to Park Ridge policemen. One of the police officers had an "Identi-Kit," i.e., a sketch composed of various features of the human face. She admitted that she told the police officer that the eyes, ears, lips and nose of the two intruders were not similar. She further admitted that her observations of Tedder's tattoos on direct examination differed from her testimony at the preliminary hearing, where she stated that she saw no marks on his arms. As to Nettles, she testified that on one occasion during the night of the crime, he held a small white card in front of his face in an attempt to mask his identity.
Detective Frank Koehler, a Chicago policeman had learned of the August 12, 1976, home invasion and had a physical description of the assailants. He and four other Chicago policemen arrested defendants on September 21, 1976, as they emerged from Tedder's apartment. Later that same day, he conducted a lineup twice for Mrs. Fruehling to insure that no mistake was made in the identification of defendants.
Park Ridge Police Officer, Louis Sciarra, testified for the defense. He had a conversation with Mrs. Fruehling on August 12, 1976, in which she described her assailants. Defendants' trial counsel was not allowed to elicit testimony from Sciarra about the composite sketches he prepared at her direction, nor was he allowed to question Sciarra about the alleged similarities in the two sketches. Mrs. Fruehling separately described both men to Sciarra. Although she described both men as having similar facial characteristics, she told him that the eyes, nose and lips of the two men were different.
The first issue that defendants raise concerns whether they were denied the effective assistance of counsel guaranteed under the United States Constitution. (U.S. Const., amends. VI, XIV.) This claim is premised upon both trial counsel's failure to preserve for review certain issues raised at trial, and counsel's alleged reliance on the disclaimer of waiver provision contained in his motion for new trial.
1 In Illinois, the standard for inadequate representation by counsel is whether the representation is of such a character as to reduce the trial to a farce or sham. (People v. Virgil (1977), 54 Ill. App.3d 682, 370 N.E.2d 74.) For a defendant to prevail in this regard, the following factors must clearly be established: (1) actual incompetence of counsel, as reflected by the manner of carrying out his duties at trial; and (2) substantial prejudice resulting, ...