APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
SULSKI, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information with robbery. (Ill. Rev. Stat. 1975, ch. 38, par. 18-1.) After a jury trial, he was found guilty and sentenced to a term of probation for four years upon condition that he serve two of those years on a work release program. On appeal, he contends that: (1) the trial court erred in not quashing the information because he was not given a proper preliminary hearing; (2) the trial court erred in not suppressing evidence seized on his arrest because there was no probable cause to make the arrest; (3) the evidence was insufficient to prove him guilty of robbery beyond a reasonable doubt; and (4) reversible trial errors occurred during trial. Although we find it necessary to reduce defendant's conviction from robbery to theft (par. 16-1), we affirm the conviction but remand for sentencing on the reduced conviction of theft.
Juan Figueroa, the victim, and Mark Hofer, the arresting officer, testified in the State's case-in-chief. Figueroa, who testified through an interpreter because he did not speak any English and understood only "some" English, stated that from about 10 p.m. on September 10, 1977, to 3 a.m. on September 11, he was at the home of a friend, Angel Ortega. While there, he played bingo, but not for money, and drank soda pop, even though others drank beer. Sometime around 3 a.m. he left Ortega's home and drove to his home which was in the vicinity of Cortland and Wolcott. He arrived there at about 3:30 a.m. While parking his car on Wolcott, a red Ford Maverick, with three occupants, pulled up and parked near him. As Figueroa got out of his car, so too did the Maverick's driver, who Figueroa identified as defendant. On direct examination, Figueroa testified that one of the other occupants of the Maverick also got out and walked away but that he did not know what the other occupant did. On cross-examination, he testified that both of them got out of the car at the same time as defendant. In either event, only defendant approached him and started talking to him. Figueroa stated that even though defendant spoke English, "as scared as I was, anyone could understand him." Defendant told Figueroa that he was a detective and showed him some handcuffs and "something that looked like a gold star" in a black wallet. He then asked to see Figueroa's driver's license. When Figueroa took out his wallet to show defendant his license, defendant "grabbed" the wallet and before returning it to him, removed all the money from it. Figueroa stated that he knew that defendant had taken $170 from his wallet because that was the amount which remained from his pay from work. He could not, however, specifically remember what the denominations of all the bills were, but he said that they were twenties, tens, fives, and ones. After Figueroa received his wallet, he asked defendant to at least give him some money to buy some milk and bread for his wife and children. Defendant then gave him $10. Before defendant left, he pushed Figueroa over by his car, kicked him in the left calf, and told him that if he told anybody about what had happened, he would kill him. Although not clear from the record, during this specific time frame, Figueroa screamed, causing his wife to come from their home. Defendant then got into his car and drove off. While he was leaving, Figueroa managed to see the license plate number UP 2595 on the car.
Figueroa went to Angel Ortega's home to call the police. He could not use his own telephone because it had been disconnected. Mrs. Ortega, who spoke English, called the police and told them what Figueroa had told her. About 25 minutes after the call, the police arrived at the Ortega home. A woman, assumedly Mrs. Ortega, told them what Figueroa had told her about the incident. Figueroa said that he had told her that a man, claiming he was a detective, had taken his money and had driven away in a red Maverick. He also told her what the license number of the car was. The police then apparently left the Ortega home for awhile. About 30 minutes later, they returned to the home in order to drive Figueroa to the police station. After they arrived at the station, Figueroa remained waiting in a hallway of the station. Some time later, he went looking for a washroom. While doing so, he came to a room where he saw defendant sitting on a bench with four other people. He then stated in Spanish that "that's the man." A friend of his helped translate that statement into English for the police.
Officer Hofer testified that at about 4 a.m., while driving in an unmarked police car in the vicinity of Wood and Armitage, he received a radio message that three males, riding in a 1973 red Ford Maverick, had just committed a robbery. After hearing this message, he saw a car fitting the description. Before doing anything, he called the radio dispatcher to ask if there was any additional information on the car. He was told that the license plate number on the car was UP 2595, which was the same number as was on the car which Hofer had seen. He then stopped the car, which did not try to evade him, at approximately 1616 West Beach Street. He ordered the three occupants out of the car and searched them for weapons. As he was searching them, defendant said: "Why are you searching me? I'm a police officer." Then, in response to Hofer's request that he prove it, defendant showed him his wallet with a gold security guard's badge and his photograph identification card. Hofer also found a set of handcuffs, which contained an engraved serial number and defendant's engraved name, on him. Defendant told him that he was a security guard. Subsequently, defendant and his two companions, who gave their names as Francisco Romo (hereafter Francisco) and Santos Lozada, were taken to the police station.
While defendant and his two companions were at the police station, Hofer found the sum of $161 on them. Of this amount, $10 came from defendant, $56 came from Francisco, and $95 came from Lozada. Although Hofer could not remember the denominations of the bills taken from the three of them, he read from his police reports which indicated that there were 5 twenties, 5 tens, 1 five, and 6 ones. Both Francisco and Lozada claimed that the money found on them belonged to them. About an hour later, Hofer saw Figueroa in the station. He saw Figueroa pointing at defendant while he was saying something in Spanish. He also saw a woman with him at the time. Sometime later, Francisco and Lozada were released from the station because Figueroa could not identify them.
Defendant, Santos Lozada, and several reputation witnesses testified for the defense. Defendant stated that on September 10, 1977, he had worked as a security guard at a store. He said that the store was the only place where he held himself out to be a police officer. After work, he drove home, picked up his wife and children, and then went bowling with them. He was in such a hurry at that time that he did not go into his home and remove his security guard badge or handcuffs from his back pocket. After bowling, he returned his family to their home and, later that evening, went to Francisco's house where he watched television with a number of other people. While watching, he consumed about 1 1/2 cans of beer. At about 1 or 1:30 a.m., he, Lozada, and Francisco left Francisco's home and went to a tavern at Honore and Wabansia. While Francisco remained in the car, defendant and Lozado went into the tavern to buy a six-pack of beer. While defendant was inside, he played pool with the owner of the tavern and drank half of a mixed drink. At about 2:35 a.m., he left the tavern with Lozada and then drove to a friend's home in the vicinity of Cortland and Wolcott. The trip took about 20 minutes.
As defendant was driving in the area, another car made a U-turn in front of him, nearly causing an accident. After the driver of the other car, Figueroa, parked his car, defendant got out to talk to him. Francisco and Lozada also got out of the car, but went about 45 feet away to relieve themselves. Defendant asked Figueroa why he had made the U-turn. When Figueroa started swearing at him in Spanish, he told him to calm down. Figueroa then placed his hands on defendant who then pushed him away. Defendant said that during the encounter Figueroa was staggering and that he had smelled his breath and concluded that he had been drinking. At some point during this encounter, defendant's badge fell out of his pocket as he hitched his pants. Defendant said that Figueroa saw the badge. Towards the end of the encounter, a woman stuck her head out a window in one of the buildings and started screaming at defendant. He then said that he did not want any trouble, and left.
About 25 minutes later, defendant arrived at 1616 Beach. When he got out of the car, a policeman pointed a gun in his face, searched him, and took his two wallets. An officer then handcuffed defendant with his own handcuffs and took him to the police station. There, he was forced to empty the money out of his pockets. He only had $10. He said that he had not given any money to either Francisco or Lozada on that evening and that he had never taken any money from Figueroa. While he was at the station, he did not see Figueroa.
Santos Lozada corroborated much of what defendant had testified to regarding the events prior to defendant's encounter with Figueroa. After defendant and Figueroa got out of their cars, Lozada and Francisco went to relieve themselves and thus, could not see or hear the substance of the encounter. Later, when he was taken to the police station, he emptied out his pocket. After he had said that he had $95, a police officer apparently expressed surprise because that amount added to the amounts possessed by defendant and Francisco was close to the amount of money supposedly taken from Figueroa. Lozada testified that the money was his and was the remnant of the pay which he had received from work on the previous day. While in the station, he was present when Figueroa appeared at the doorway to the room in which he and defendant were seated. Figueroa pointed at defendant but, before he could come into the room, he was chased away by one of the officers. Eventually, Lozada was released without being charged with any crime. Nevertheless, the $95 were never returned to him.
Five witnesses, including defendant's wife, sister, mother, brother-in-law, and wife's uncle, all testified to defendant's reputation in the community. They all testified that he had a good reputation for honesty.
Officer Patrick Garrity testified in rebuttal for the State that at about 3:50 a.m. on September 11 he saw Figueroa at the scene of the crime. He said that he was anywhere from 25 feet to right next to Figueroa when he saw him. He spoke with him and verified what he understood Figueroa to have said through an interpreter. He said that during this time he noticed that Figueroa's breath and walk were normal. Later, he filled out a police report on which he indicated that Figueroa was sober.
Defendant contends that he was not proven guilty of robbery beyond a reasonable doubt.
A person commits the crime of robbery "when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force." (Ill. Rev. Stat. 1975, ch. 38, par. 18-1.) Among the elements which must be established to prove robbery, the State must establish beyond a reasonable doubt that the force alleged was "of such a character as to temporarily suspend the [victim's] power to exercise his will." (People v. Stewart (1977), 54 Ill. App.3d 76, 80, 369 N.E.2d 131, 133.) The State also must establish ...