APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendants Curtis Cooper and Janette Dallas were each found guilty of aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4), armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), and attempt armed robbery (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4 and 18-2), and Cooper was found guilty of the additional charge of attempted murder (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4 and 9-1). Cooper was sentenced to concurrent prison terms of 17 to 20 years for the armed robbery, 17 to 20 years for the attempt murder, and 6 to 20 years for the attempted armed robbery, and Dallas was sentenced to concurrent terms of 10 to 12 years for the armed robbery, 3 to 10 years for the attempt armed robbery, and 1 to 10 years for the aggravated battery. On appeal, they contend that (1) they were denied due process of law and the right to a trial by an impartial jury when the court refused to ask a specific question during voir dire examination; (2) they were denied effective assistance of counsel when they were each represented by an assistant Cook County public defender despite various conflicts of interests between them; and (3) they were denied a fair trial by certain statements made by the assistant State's Attorney during closing argument. Additionally, Cooper contends that (1) he was denied due process when he was unable to prove that an array of photographs shown to witnesses was unnecessarily suggestive because the police failed to retain the photos; (2) he was denied a fair trial when the court prevented him from impeaching a witness with a tape recording of a prior inconsistent statement; (3) he was denied a fair trial by the presentation of prejudicial evidence and innuendoes; (4) the trial court committed plain error when it improperly instructed the jury on the elements of attempt murder; and (5) the trial court abused its discretion in sentencing him. Although we find that some error occurred in the trial court, we affirm the judgment of the trial court.
Most of the basic facts of the offenses charged in this case are not in dispute. On December 24, 1975, at about 7:30 p.m., Sisters Noreen Burns and Ramona Nowak, two Roman Catholic nuns who were at the time not dressed in their religious garb, were robbed at gunpoint by a man and woman in the vicinity of 82nd and Ashland Avenue. After the man took Sister Burns' purse and the woman searched Sister Nowak's pockets, the nuns pushed away their assailants and attempted to flee. As Sister Burns called for help, the man shot her in the stomach. At trial, the bullet remained lodged in her body in close proximity to her vital organs. After shooting Sister Burns the man and woman fled down an alley. Their identity is in issue in this case.
At trial, Sister Burns positively identified defendants Cooper and Dallas as the man and woman who were involved in the December 24 incident. She stated that she first saw the man and woman as she and Sister Nowak walked past the northwest corner of 82nd and Ashland on their way to their car. The man and woman were the only people that she saw on the street at that time. They were facing in the opposite direction and thus she was unable to see their faces. However, she was able to tell that the man was very tall and slender and the woman was shorter than the man. After she and Sister Nowak turned the corner, heading west towards their car, the man and woman came up behind them and the man thrust a sharp object into Sister Burns' back, telling her, "I'm going to blow your brains out, get over to the car." She then turned around and had her first opportunity to see the man's face; she also "noticed" or "saw" the woman, but it is unclear whether she saw the woman's face. *fn1 The man and woman then pushed her and Sister Nowak face-forward toward their car and ordered them to put their hands on top of the car. After they had done so, the man ordered Sister Burns to give her purse to him. As Sister Burns turned to her right to give the man her purse, she again saw his face. Her trial testimony on this point, however, differed somewhat from her preliminary hearing testimony. At trial, she testified that she made a three-quarter turn or turned completely and was facing the man when she gave him the purse. At the preliminary hearing, she testified that she turned a little "sideways" when she gave the man her purse and she only saw him "sideways." Also, her trial and preliminary hearing testimony differed on whether she saw the woman on this occasion. At trial, she testified that when she turned to give the man the purse she did not see the woman, but, at the preliminary hearing, she testified that she "caught a glimpse" of the woman. After Sister Burns gave the man her purse, he again ordered her to turn around and put her hands up against the car. While there, she was able to see the woman as she was searching Sister Nowak's jacket pockets. At trial, she testified that she saw the woman's face for a matter of seconds; at the preliminary hearing, she testified that she got a "glimpse" of the woman. While Sister Burns stood at the car, she heard Sister Nowak tell the woman: "Do you know what you are doing? You must be crazy." The woman told Sister Nowak to "shut up."
After the woman had completed her search, the man ordered Sister Burns and Sister Nowak into their car. When Sister Burns refused, the man pushed the sharp object deeper into her back and again ordered her into the car. She then turned, pushed him out of the way, and sped past the man and the woman toward Ashland Avenue. While she was doing this she again saw the man's face, but she did not see any gun. At one point in her testimony, she said that she did not see the woman's face but she later contradicted herself by saying that she was positive that she saw the woman's face too. As she approached Ashland, she saw someone in the crosswalk and yelled for help. She then turned and pointed to her assailant as he was running toward an alley, just west of the robbery scene. As she pointed, the man turned around, raised his gun, and pointed it toward Sister Nowak who had been chasing him. When Sister Burns again yelled for help, the man changed his aim and shot Sister Burns in the stomach. When he fired, he was standing about 25 feet away from her and she was again able to see his face. After the shooting, the man and woman ran in a northerly direction up the alley.
Sister Burns testified that at the time of the incident, the scene of the crime was blanketed with freshly fallen snow and illuminated by street lights on all four corners of 82nd and Ashland, a sodium vapor light at the alley, and lights from passing cars. She said that the incident, from approach to flight, took about 60 seconds, during which time she saw the male offender for either more than 20 seconds or "probably about" 40 seconds and the female for about 10 seconds. During the time she had to view the male offender, she did not notice whether he had any facial hair on him or whether he was a light or dark complected black, but she did notice that he was very tall and very thin. During the time she had to view the female offender, she did not notice if she was a light or dark complected black.
After the incident, Sister Burns was taken to a hospital where she was shown photographs of male and female suspects by police officers on December 26. At trial, she stated that she selected defendant Cooper's black and white photograph from 5 black and white photographs of black males. At the preliminary hearing, she testified that she had chosen a color photograph of Cooper. In either event, she told the police that she was sure that Cooper was the man who had robbed her. She also selected defendant Dallas' photograph from five photographs of black females and told the police that she was the woman who had robbed her.
At a preliminary hearing on January 29, 1976, Sister Burns saw defendants Cooper and Dallas for the first time since the incident. Before the case had been called, she saw Cooper walk through the courtroom door. When she saw him, she pointed him out to Sister Nowak and told her that he was the man who had robbed them. She testified that Cooper was not the only black who had entered the courtroom and that she had not seen any photographs of him since the December 26 photo display. Also, she saw defendant Dallas either standing in an adjoining room to the courtroom with other black females before the case was called or as she stepped out of that room as the case was called. When Sister Burns saw Dallas, she told Sister Nowak that she was the woman who had robbed them.
At trial, Sister Ramona Nowak also identified defendants Cooper and Dallas as the man and woman who were involved in the December 24 incident. She said that she did not see anyone on the street until after the woman began searching her pockets. At that time, she turned around and saw the woman "eyeball to eyeball." She noticed that the woman was wearing a curly wig and high gloss makeup. She told the woman, "You have got to be kidding. Do you know what you are doing?" The woman looked at her and told her to "shut up." The man then told Sister Nowak, "Turn around and put your hands up on the car or I will blow your brains out." As she complied with his order, she "saw" the man who was holding a gun in Sister Burns' back. At trial, she testified that she got a "good look" at the man; whereas, at the preliminary hearing, she testified that she "caught a glimpse" of him. Shortly thereafter, the man ordered the nuns into the car, but they both refused the order. The nuns then pushed away from their assailants and ran towards Ashland. As Sister Nowak ran past them, she again saw the woman's face. The man and woman chased the nuns for a while but they stopped and ran in the opposite direction towards an alley when the nuns called for help. Sister Nowak then ran after the man and woman. The man stopped at the alley and then raised the gun with two hands and pointed it at Sister Nowak. She stopped dead in her tracks and looked directly at the man as he pointed the gun at her. She then turned and faced northward from which point she was able to see the man on her left and Sister Burns on her right. As Sister Burns continued to call for help, the man aimed his gun at Sister Burns and shot her in the stomach. At trial, Sister Nowak testified that she was not looking over her left shoulder when the shot was fired. At the preliminary hearing, she testified that she was looking over her left shoulder at the man when he shot Sister Burns. In either event, after the shooting, she ran over to give assistance to Sister Burns.
Later that evening, Sister Nowak gave descriptions of the woman and man to police officers at the hospital. She described the woman as being older than the man, stocky, shorter than herself, and medium or dark complected. She told the police that the woman wore a curly wig and thought that she told the police that the woman was wearing high gloss makeup, but she could not remember if she told them that she had high cheek bones. No testimony was elicited concerning her description of the man other than her belief that she did not tell the police that the man had a mustache.
On December 25, Sister Nowal went to the police station to view a lineup of women. At trial, she testified that she could not recall if she was told that a suspect was in custody. At the preliminary hearing, she testified that she was told this. On her way to the lineup room, a police officer showed her photographs of male suspects. At trial, she described the photographs as a "large stack of photographs," "more than 5," "like a deck of cards." At the preliminary hearing, she described the photographs as "about" 5. At trial, she explained this conflict by saying that the police officer had a stack of photographs in his hand but may have only shown her 5. She selected a photo of defendant Cooper from the "stack" and said that he was the robber, but she also told the officer that she wanted to see him in person. At about 9 p.m., she viewed the lineup which included four black female suspects. She narrowed down her choice to two of the suspects, including Dallas, and, after taking a closer look at Dallas, she told the police that Dallas was the woman involved in the crimes. Although she was certain of this, she initially refused to press charges. She said that she initially refused to press charges because: (1) she had worked in the black community and was aware of injustices suffered by blacks; (2) she first wanted to know how Sister Burns felt; and (3) she had recently visited a woman's lockup and knew what it was like.
On December 26, Sister Nowak viewed a lineup of male suspects, including defendant Cooper, and identified Cooper as the man involved in the crimes. She also identified both defendants at the preliminary hearing in January of 1976.
Cornelius Cross testified that at about 7:15 p.m. on December 24, 1975, he was driving in the vicinity of 82nd and Ashland with defendants and two musicians, named "G.G." and Steve. They were looking for a place to get beer. While looking for a parking place, he heard Dallas say, "I wonder where I can get some money from," but did not know whom she was talking to at the time. After he had found a parking spot on 82nd Street, near the mouth of an alley just west of Ashland, defendants left the car to get the beer. Dallas, who was wearing a curly hairstyle, did not take her purse with her when she left. She and Cooper were gone for only about 10 minutes, when Cross heard a shot and saw them running past his car and into an alley. He did not see anyone else at the time. He started up his car and drove to Marshfield, which is the first block west of Ashland, and turned north up that street. As he was driving up Marshfield, he saw defendants as they emerged from between two buildings. He stopped to pick them up. When they got in, Dallas was carrying a purse. Cooper told Cross, "Drive fast, someone is shooting." While Cross drove, he heard Dallas fumbling with something in the back seat and heard her say, "I think they were nuns." Cross eventually dropped his passengers off and went home.
On December 25, the police came to Cross' house and told him that two nuns had been robbed and shot in the vicinity of where he had been seen on the previous day. They placed him under arrest. He then gave the police defendants' names and addresses, and G.G. and Steve's names. Afterwards, they took him to the police station.
While Cross was at the station, Dallas came into the room where he was being kept and, upon seeing him, she said, "I don't know him. I have never seen him before." Three hours after Cross arrived at the station, he began giving the police a statement. Between 7:30 p.m. and 8:50 p.m., when Cross was asked certain questions, he told the police much of what had occurred on the previous day, but did not tell them about: (1) Dallas' statement that she needed money, (2) the gunshot, (3) Dallas' fumbling through a purse, or (4) Dallas' statement that she thought the victims were nuns. At 8:50, the police officers left to conduct a lineup. At about 11:20 they returned and the statement was resumed. Cross then told the police the details which he had not covered in the earlier portion of his statement.
Michael Allen testified that at approximately 7:30 p.m. on December 24, 1975, he was driving in the vicinity of 82nd and Ashland with Richard Jackson and Robert Moncrete. As he proceeded westbound on 82nd, he heard a cracking sound and saw a flash of light coming from the edge of an alley just west of Ashland. He saw a man and woman standing at the edge of the alley, a woman clinging to a wall, and another woman and man standing by the woman who was clinging to the wall. He was not able to see any of their faces. He drove to the edge of the alley and when he got there he saw two people about a quarter of the way up the alley. They went into a gangway and did not reappear. After futilely waiting for them to reappear, Allen drove to Marshfield and headed north up that street.
On Marshfield, he saw a man and woman walking towards an automobile which was sitting at a curb. The man and woman had the same clothes and features as the man and woman he had seen on 82nd Street. Specifically, he said that the man that he had seen on 82nd Street was wearing a dark coat as was the man on Marshfield. He said that he did not tell defense counsel in a pretrial telephone conversation that the coat was white cashmere. He stated that as he drove past the car, he was able to see the face of the man for about 10 seconds before the man got into the car. He said that he did not have to look past Jackson to see what was happening on the east side of Marshfield. Also, he first denied telling defense counsel in a pretrial taped conversation that he saw the man for 10 seconds from the side. Then he said that if that statement were in the transcript of the conversation then it was improperly recorded. When asked if he told defense counsel in the taped conversation that he saw the man's features but could not recognize him, he said that when he spoke with them he had just awakened and things were vague to him. After the man entered the car, he followed it for a while, taking down a description of the car and its license plate number. After getting this information, he returned to 82nd and Ashland and gave this information to a police officer who was investigating the crimes.
On December 25, Allen was shown photographs of male suspects. At the request of the police, he narrowed his choice to three, then ultimately selected Cooper's photo from the trio. Sometime later, he viewed a lineup of male suspects, including Cooper, and pointed out Cooper as the man he had seen on Marshfield on December 24.
Officer Walter Tamberlin testified that his patrol car was the first patrol car at the scene of the crime. When he arrived, he noticed that the area was well lighted. He went to the mouth of the alley between Ashland and Marshfield and there noticed only two sets of footprints in the snow. He followed the prints in a northerly direction up the alley to a gangway where the footprints turned west. He then followed the footprints through the gangway out to the parkway on Marshfield. After he returned to his car, he met Allen and Jackson who gave him a description and a license number of a car which they had seen on Marshfield.
John O'Connor, superintendent of engineers for the Bureau of Electricity, testified that he was familiar with the lights in the vicinity of 82nd and Ashland. He said that they were functioning on the evening of December 24 and that "if someone stood at the intersection, midway between the two lights and Ashland Avenue, they could read, more than read the fine print on the Chicago Tribune. If they stood at the mouth of the alley, right at the curb, they could read the small print of the Chicago Tribune."
Officer Wilbur Jamison testified that he was the officer who showed the photographs of male suspects to Sister Nowak prior to her viewing the lineup on December 25. He said that after Sister Nowak had looked at the photographs, she made a "tentative" identification of Cooper but wanted to see the man in person. He was also the officer who conducted the lineup of female suspects. He said that after viewing the lineup, Sister Nowak made an identification of Dallas. As was police procedure when an identification was made, photographs of the lineup were taken.
Sometime after the lineup, Officer Jamison called assistant State's Attorney Paul Kayman to inform him of the results of the lineup. At first, he testified that he told Kayman that Sister Nowak had identified Dallas but refused to sign a complaint for various reasons. A little later, he testified that he told Kayman that no identification had been made and then, he again testified that Sister Nowak had made an identification but refused to press charges. Kayman rejected filing charges against Dallas. Later, Sister Nowak relented and decided to file charges against Dallas. Officer Jamison then sought to contact Kayman about Sister Nowak's decision but he was unsuccessful. He did, however, get the charges approved by a division supervisor.
Officer Jamison wrote two reports on the lineup. In the first, he indicated that Sister Nowak said that Dallas "looked like" the offender but that the offender wore shiny makeup and a different type of wig. In the second, a supplementary report written about the same time as the first, he indicated that Sister Nowak "positively" identified Dallas from the lineup but that she stated that Dallas wore facial makeup and a different type of wig at the time of the offense.
Curtis Cooper testified that he was not at 82nd and Ashland on the date and at the time of the crimes. At about 4 p.m. on December 24, 1975, however, he was there with Cornelius Cross and Dallas. They had gone there to pick up Cross' brother, Lawrence, and his girl friend. When they arrived, Lawrence, who looked somewhat similar to Cooper, was not waiting for them. As a result, Cross told Cooper and Dallas that he would take them home and then come back to get his brother and girl friend. They left the area at about 4:15 p.m.
At about 6:15 p.m., Cooper arrived at his parents' home where he generally stayed more than two nights a week. When he entered, he saw his mother, stepfather, aunt and two sisters. Since his sisters were already leaving to buy him a present, he gave them some money to buy him a card for his stepfather. He then went up to his room and watched television. He remained in his room the rest of the night.
Cooper's two sisters and mother confirmed his whereabouts on the evening of December 24. They said that he arrived at about 6 or 6:30 p.m. and went to his room. At about 7 p.m., the sisters went to a store to purchase a gift for Cooper and a card for their stepfather. At about 8 p.m., they returned and gave Cooper the card. They went to bed at about 12:30 a.m.
Cooper's mother went to bed at 1 or 2 a.m. She said that Cooper did not leave the house until 11 a.m. on December 25. Later in the day, the police arrived. They told her that they were looking for Cooper. She told them that he was not there and allowed them to search for him.
Cooper's stepfather testified that he had gone to work at 2 p.m. on December 24 and had returned at 11:30 p.m.
Gilbert Gregory Hart, a musician who was also known as "G.G.", testified that although he knew Cross and Cooper, he was not with them at 82nd and Ashland at the time and on the date of the crimes. He stated that at one point he had told Cooper's attorney that he was at a Keyman's Club at that time and on the date, but the attorney told him that there was no record of the club being open. He said that he now believed that he was at Evergreen Plaza Shopping Mall on December 24 with a friend and his mother. On December 29, 1975, he returned to his original home State of Maryland. At the time, he did not know that the police were looking for him or that Cooper and Dallas had been arrested.
Susan Coleman, an employee of the public defender's office, testified that between 11 a.m. and 5 p.m. on March 8, 1977, she participated in a phone conversation with the defense attorneys and Allen. She was not aware that Allen worked nights and slept days. She could not recall if the telephone call awakened him. She said that during the conversation, Allen said that it was "pitch dark" when the incident occurred and that the man he saw on 82nd Street was wearing a white cashmere coat. She also heard him say: "There is always room for doubt. I couldn't say that the man in the lineup was him for sure."
Officer Robert Kruger testified that he was one of the officers who showed photographs of male suspects to Sister Burns on December 26. At that time, she told him that the man pictured in one of the photographs "looked like" the male offender but that she would like to see the man in person.
Assistant State's Attorney Paul Kayman testified that when he spoke to Officer Jamison on December 25, Jamison told him that the nun did not want to make an identification. His log book for that date, however, indicated that no identification was made by anyone. He said that he advised Jamison to contact other witnesses before charges could be pressed.
Officer Dale Riordan testified from memory that on December 25 he asked Cooper's mother where her son had been on the previous night. She told him that she did not know, and that he was a grown man who came and went as he saw fit.
Defendants raise a number of issues and sub-issues in their respective briefs. Though we have carefully considered each and every one, we will only discuss those issues which require more than summary treatment. We summarily dismiss the remaining sub-issues as being without merit.
Defendants contend that they were denied due process of law and the right to a trial by an impartial jury when the court refused to ask prospective jurors whether they would give greater credibility to the ...