APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendants Frank Velillari and Ronald Roland Wolf were charged by 28-count informations with armed robbery, aggravated battery, robbery, and unlawful restraint. William Rodely, a co-defendant who was tried with Velillari and Wolf, is not involved in this appeal. Following their jury trial, Velillari and Wolf were each convicted of armed robbery, aggravated battery and unlawful restraint and sentenced as follows: Velillari, 10 terms of 30 to 100 years for armed robbery, three terms of three years four months to ten years for aggravated battery, and five terms of one to three years for unlawful restraint, all to run concurrently; Wolf, the same, except each armed robbery term was 100 to 200 years. The cases were consolidated for appeal.
Defendants raise the following as grounds for reversal: (1) refusal of their offer of proof relating to another alleged perpetrator of the crime; (2) the State's Attorney's repeated questions of defendants as to whether State's witnesses were lying; and (3) the State's Attorney's closing argument. Also, they maintain convictions as to certain counts must be vacated as duplications and that other counts on which Velillari was sentenced were not submitted to the jury. Finally, they seek reduction of their sentences.
Approximately 40 witnesses testified at the seven-day trial. Our disposition of the issues raised requires that the testimony be summarized at some length. The victims' testimony reveals the following.
The events in question occurred late December 2, 1976, and early on December 3. That evening two men entered the home of the Ruggieri family in Herrin. Mr. Ruggieri was next door in Chevie's Lounge which he owned and operated. Mrs. Ruggieri was sleeping in an upstairs bedroom. Their 18-year-old twin sons, Steven and Phillip, and their friend, Tim Whitecotton, were sleeping in the basement.
The intruders woke Mrs. Ruggieri and bound her, then woke the boys and marched them to her bedroom. The hands of the victims were handcuffed behind their backs; their legs were taped together, and their mouths were taped. An exception was Whitecotton, whose hands were only taped. The telephones were torn out.
The victims' descriptions of the intruders vary somewhat, apparently due in part to the intruders' efforts to keep the lights low. The victims generally agreed one intruder wore green coveralls and the other a much darker suit of coveralls. One may have worn an overcoat. Both wore gloves and ski masks. One wore gold-rimmed glasses. One carried a handgun which he said was a .357 Magnum. Height estimates varied widely. Whitecotton testified one intruder almost stepped on his nose with tan suede boots. One intruder addressed the other on one occasion as "Ron," then apologized. The victims were continually threatened with death if they failed to remain quiet and cooperate.
One intruder carried a citizens' band radio-transmitter, through which he addressed someone as "Old Bearded One." Apparently he wore an earphone, as the victims could not hear messages received. They did hear him tell the other intruder about "someone talking to a policeman," after which they heard a car with unmuffled exhaust drive away.
Mr. Ruggieri closed the lounge around 2 a.m. and went home. The intruders ambushed him at the door and led him upstairs to the rest of his family. Despite their threats of death and harm he denied having a safe in the house. They pistol-whipped him, knocked him down, and kicked him. They taped his hands together, his feet together, and taped his mouth. One intruder poured lighter fluid on Steven, Mr. Ruggieri and Whitecotton, held a lighter flame as close as one-half foot to Steven's head, and again demanded the safe's location. The victims insisted there was no safe and the flame was extinguished.
The intruders instructed the boys to tell police "niggers" had robbed them and that they would be killed later if they did otherwise. The intruders left in Mrs. Ruggieri's car. The major items taken in the robbery were several watches, a large amount of jewelry, including a man's cluster diamond ring, two guns and approximately $4000 in cash.
Whitecotton and Mr. Ruggieri, whose hands were only taped, got free first. The victims walked to a restaurant across the street where police removed their handcuffs. Mr. Ruggieri was hospitalized for two days for a head cut and bruised ribs.
Mr. Ruggieri testified that defendant Velillari was in his lounge for a long time and left at closing time. Mr. Ruggieri recalled what Velillari had been drinking and much of their conversation. All the victims except Mr. Ruggieri saw Velillari at the restaurant after the robbery. Velillari admitted his presence at the lounge and the restaurant. He denied asking the Ruggieris whether "niggers" had robbed them, contradicting testimony of some witnesses that he had made such a comment.
A key State's witness was Robert Phelps, who admitted being the "Old Bearded One" and driving the getaway car. He received a negotiated sentence of three to nine years for the instant offense, in part in exchange for his testimony. Phelps testified he, Velillari, Wolf and William Rodely discussed the Ruggieri robbery on the evening of December 2, 1976, at Cheryl Robinson's house. Phelps drove the men to the lounge to investigate the premises. While there, Phelps' car lost its muffler in the parking lot. They returned to Ms. Robinson's. Their plan was that Velillari would be in the lounge as a lookout and be the last to leave. Velillari left Ms. Robinson's house in Keith Girten's Monte Carlo, which was brown with a dark vinyl top. Rodely and Wolf wore coveralls and ski masks. Rodely wore green boots; Wolf wore suede shoes. Phelps dropped Rodely and Wolf off in the parking lot behind Chevie's Lounge. Wolf had to return to the car to retrieve his gun. Phelps parked across from Chevie's. He had a citizens' band transceiver in the car, purchased by himself and Rodely. (A Carbondale Radio Shack employee who was also an art student testified Rodely was the purchaser. He drew a sketch of the purchaser for police, including a "pentangle" tattoo on the left hand which Rodely later showed the jury.) Phelps testified he obtained Rodely's .12-gauge sawed-off shotgun prior to the robbery and put it in the trunk of his own car. (Phelps was arrested with the shotgun in his car. Expert testimony later showed shotgun shells among Rodely's belongings when he was arrested had been loaded and ejected from that shotgun.) Phelps testified that during the robbery he had been run out of town by Officer Hubbard of Herrin. (Hubbard confirmed that Phelps had had a citizens' band radio and that he ran Phelps out of Herrin as a known unsavory character.)
It was shown that Phelps had a piece of paper in his possession when arrested which bore the name "Frank" and a telephone number. The number corresponded to a Mt. Prospect, Illinois, address. An investigator recorded the license plate number on a van parked there December 13, 1976. That plate was registered to Velillari. One Donna Davis testified that the same telephone number appeared on her telephone bill as having been called December 3 at 11:46 p.m. Ms. Davis did not call that number. Rosie Logsdon lived with Davis, and Rodely often visited Logsdon. Rodely had paid Davis previously for calls to the same number.
It was shown that on the way to the robbery Rodely brushed his hair with a brush from Phelps' car. An FBI agent's microscopic examination of hair from that brush and a sample of Rodely's hair showed the hair from the brush "could have been" Rodely's.
Cheryl Robinson corroborated the December 2 meetings at her home just north of Marion. She was in the living room with Phelps (her "lover") and could not hear the other three men in the kitchen. She admitted having given a false sworn statement to police about this case to help Phelps. She was unable to pick Wolf's photograph from a group the police showed her.
Rosie Logsdon also corroborated that the four men met at Ms. Robinson's, though she was asleep most of the time. Logsdon and Rodely drove Girten's Monte Carlo to Girten's home in Indiana on the morning of December 3. Velillari and Wolf drove there in Velillari's van. On the way, Rodely wondered aloud why Phelps had disappeared and had not called on the radio. At Girten's, Wolf, Velillari and Rodely sorted some items which Rodely tried to prevent her seeing, including a "clustered" diamond ring. (Mr. Ruggieri testified the intruders took his clustered diamond ring.) Ms. Logsdon and Rodely later moved to Midland, Texas, where Rodely was arrested. (Some of the victims were shown at trial a .357 Magnum handgun, coveralls, boots, gloves and a citizens' band radio which had been in Rodely's possession when arrested. They testified they were "similar" to those worn and carried by the intruders.)
Gerald Eldridge, who lived behind Chevie's, testified that he was disturbed by an unmuffled car behind the lounge about 1:30 a.m. December 3. Two people got out, one came back, and then both people walked away as the ...