APPEAL from the Circuit Court of Cook County; the Hon. ADAM N.
STILLO, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Jesse B. Freeman (hereinafter defendant) was charged by information with armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), of which he was found guilty following a bench trial. His post-trial motions to allow newly discovered evidence and for a new trial or alternatively acquittal were denied, and he was sentenced to a term of six years in the penitentiary. The issues he raises in this appeal are whether: he was proved guilty beyond a reasonable doubt; he was denied effective assistance of counsel; the rebuttal testimony of a prosecution witness was properly admitted into evidence; and the State's failure to introduce into evidence certified copies of two prior theft convictions on which he was cross-examined constitute reversible error. For the reasons set forth below, we find no error and affirm.
The following account of the crime was given by the State's chief witnesses at trial, Ruby Parker (hereinafter Parker), her sister Ida Hatley (hereinafter Hatley) and Rochelle, Hatley's 15-year-old daughter (hereinafter Rochelle). At approximately midnight on May 21, 1977, Parker, Hatley, Rochelle and three young children were in the brightly lit parking lot of Parker's apartment building located at 1040 West 14th Street in Chicago, at the back of Hatley's car unloading Parker's packages from the trunk. A man with a revolver in his hand approached from the west side of the lot, announced a "stick-up," and ordered Parker to put everything she had back in the car and be quiet. When she hesitated, he turned to Hatley and told her to give him the keys. Told by Hatley that her husband had the keys, the man swore at her and said he had seen them enter the parking lot alone. He put the gun to Hatley's head and threatened to kill her if she did not give the keys to him. He snatched her purse, which she had taken from the front seat of the car, put it on the ground and started looking through it, finally carrying it away with him as he left.
Parker described the man as wearing a "cranberry brown" suit, black shirt and beige straw hat at that time, and identified defendant in court as the man who had robbed Hatley. She described the gun he carried as "shiny." On July 15, 1977, she was a patient at Mary Thompson Hospital when at about noon she saw defendant, walking in the third-floor corridor outside her room about 20 to 25 feet away from her and dressed in the same clothes and hat as he had been at the time of the robbery. She recognized defendant's face as well as his clothes when she saw him in the hospital. She told a nurse she saw a man who had held her up. Again at about 4 p.m. that day she observed defendant going into his room, which was opposite her own. At about 7 p.m., Parker spoke to a security guard concerning defendant and also called her sister's house. The man who robbed her did not have a beard and was about 6' tall.
Rochelle identified defendant at trial as the man who took her mother's purse. On July 16, 1977, at about 7:30 p.m., she was at Mary Thompson Hospital with her mother and father visiting her aunt. She went to the third floor with her father, while her mother remained in the hospital lobby for a time. On that floor, she recognized the man who had robbed her mother. She then went with her father to her aunt's room, where she remained after her father left. On cross-examination, Rochelle described the robber as about 6' tall, clean shaven but with a small mustache on his upper lip and a bandage over his left eye. The gun he held during the robbery was black but not shiny. After seeing the man again at the hospital, she told her father and aunt about it. When Rochelle's mother came up to the room after her father had gone, she told Rochelle she too had seen the robber in the hospital.
Hatley identified defendant at trial as the man who robbed her, and testified that the purse he took contained identification papers for her car, a birth certificate, a blank checkbook and approximately $27 in cash. On July 16, 1977, at about 7:30 p.m., she went to Mary Thompson Hospital with her husband and daughter to visit her sister and observed defendant in the third floor corridor. Later, at the hospital, she identified defendant as the robber and he was arrested. On cross-examination, she testified that the assailant's height was "maybe six foot"; she did not recall testifying at the preliminary hearing that he was "`about five, nine.'" She remembered that he was "clean shaved," with a mustache and a bandage over his eye. She talked to her sister by telephone on the evening of July 15, 1977, and was told that the robber was a patient in the hospital across the hall from her. When she saw defendant in the hospital he did not have a beard.
Victor Lightfoot testified for the defense that he was a placement counselor who formerly worked at the Tri-Faith Employment Project. On June 21 or 22 of 1977, defendant came to the Tri-Faith office seeking employment. He had "hair all over his face" which Lightfoot told him would prevent his getting a job. Two or three days later defendant returned to the employment office clean-shaven. On cross-examination Lightfoot disclaimed any knowledge of defendant's appearance, including facial hair, on May 21 or 22 of 1977.
Carolyn Freeman, defendant's wife (hereinafter Freeman), testified that on May 22, 1977, he had a beard and had one when he graduated from college in June of 1976. He did not shave it off until June of 1977 for a job interview. From midnight on May 21 until the morning of May 22, 1977, defendant was at home with her and did not leave the house. They watched "Saturday Night Live" and part of the movie "Joe," which were on television that evening. She and defendant had gone to the public library to look at the newspapers for the day in question, and the television guide had refreshed her memory that they watched T.V. Defendant did not own or possess a gun. Around the 22d of May 1977, she worked part-time at Osco Drugs and daily for Johnson Publications, earning $200 per week at the latter job. On cross-examination, she testified that until the previous day she and defendant believed the robbery had occurred on the evening of May 22 rather than the 21st. She had worked at Osco until midnight on the evening of the 22d, but had not worked the prior evening. She was "pretty sure" defendant owned a straw hat in May of 1977.
Dr. William Norcross testified for the defense that when he was on the staff of Mary Thompson Hospital on the 13th and 16th of July 1977, both defendant and Parker were his patients. He knew the latter not as Ruby Parker but rather as Ruby Tyler. Defendant had been admitted to the hospital with an abscess under his arm such as was usually caused by deodorant. Defendant had a beard in February 1977, when he first became a patient of Dr. Norcross. Although he did not know how long defendant had the beard, the doctor saw him at a later time without it and was told defendant was going for a job interview.
Defendant testified on his own behalf that he did not take Hatley's purse and had never seen her before July 16, 1977. On that date, he was packing to leave the hospital when he was taken down to the security office by hospital guards and police officers. The Hatleys were there, and Ida Hatley identified him as her assailant. He was then taken to Parker's room and identified by her. He had a beard when he graduated from college in June of 1976; it was not shaved off until around June 20, 1977. He never owned or used a gun and had never been found in possession of one, or of Hatley's purse. He testified on cross-examination that when he was arrested for the offense he was given the impression that the crime had occurred during the evening hours of May 22, 1977, when he was at home watching "Ben Hur" on television. When the trial began, he realized that the offense had occurred during the evening of May 21 into the morning of May 22. He and his wife then went to the library, saw that "Joe" and "Saturday Night Live" had been on television at that time, and remembered watching those programs on the evening of May 21. Over defense objection, the State elicited that defendant had been convicted twice previously for theft and once for possession of stolen mail. Defendant owned two straw hats on May 21, 1977, but did not think he wore one on that date. He had three scars on his forehead, two of which were at or near the hairline. He was 6'2" tall and weighed 160 pounds, which he also weighed in May of 1977.
Larry Nikodem, assistant manager for the Osco Drug Store located at 3531 N. Broadway, testified for the State on rebuttal. He was in charge of personnel and wrote a daily work schedule for the employees. On May 21, 1977, Carolyn Freeman, defendant's wife, was an Osco employee. He checked her time card for the date in question before coming to court, which was in her handwriting and indicated that she worked from 5:30 p.m. to 11 p.m. on that date. The time card itself was not admitted into evidence. Over defense objection, Nikodem testified that Freeman's employment was terminated for stealing from Osco. On cross-examination Nikodem acknowledged that he did not know Freeman's handwriting on sight, and explained that the payroll records reflected only total hours worked per pay period rather than per day.
Carolyn Freeman testified in surrebuttal that she was dismissed from work at Osco due to a misunderstanding over payment for a carton of cigarettes. Although later asked to return to work, she declined. Both the State and the defense then rested.
Following argument, the court assessed defendant's alibi evidence as having "too many discrepancies," although defendant "probably had a beard." On the strength of the eyewitness identifications of defendant and other State's evidence, the court entered a finding of guilty and judgment thereon.
A hearing was held on defendant's post-trial motions on September 6, 1978, presented by new counsel. A motion to allow newly discovered evidence alleged that the time cards for Osco employees were filled out in advance, and Nikodem would testify that Freeman probably filled out the time card admitted into evidence at trial before May 21. Commenting that whether Freeman was working on the evening of the 21st "did not merit much consideration in [its] finding of guilty" and that it had based its finding and judgment on the identifications of the eyewitnesses to the robbery, the court denied the motion. Defendant's motion for a new trial or, alternatively, for acquittal relied primarily upon the purported incompetence of trial counsel, chiefly for his failure to prepare an alibi defense for the correct period of time ...