APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
WENDT, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 20, 1980.
After a bench trial, defendant was convicted of armed robbery and sentenced to a term of 7 to 21 years. On appeal, he contends that (1) the trial court erred in failing to ascertain that he knowingly and voluntarily waived his right to a jury trial; (2) the trial court erred in refusing to recall one of the State's witnesses for further cross-examination; (3) he was denied effective assistance of counsel when his attorney failed to impeach the complaining witness with a transcript of his preliminary hearing testimony; and (4) he was not proven guilty beyond a reasonable doubt.
Defendant was charged by indictment with the armed robberies in a tavern of Mitchell Dudek *fn1 (the owner) and Donna Nichols (a customer). Before commencement of trial, there was a discussion as to the waiver of a jury trial. In this regard, the transcript reveals only that the trial judge made the following statement to defendant, in the presence of his counsel, "Okay, now you are signing the Jury Waiver, let's go." A written jury waiver form signed by defendant appears in the record, and a portion of the common law record entitled "Memorandum of Orders" (commonly referred to as the half-sheet) contains an entry stating that defendant was advised of and waived his right to a trial by jury and that he signed a jury waiver.
At trial, Dudek testified for the State that when he entered his combination restaurant and tavern at about 11 a.m. on the morning of the robberies, there were three men sitting at the bar drinking beer — one at the front of the tavern, one near the middle, and one near the back; that he went into the kitchen, from which he saw that the man at the back of the bar, whom he identified as defendant, had a bag next to him on a stool; that he (Dudek) was 8 to 10 feet away from defendant and looked at him for 15 to 20 minutes because "he didn't look right"; that he saw defendant take a gun out of the bag, as did the other two men, and defendant then announced, "This is a stick-up"; that defendant held his gun to Dudek's head and then tied Dudek's hands and feet behind him and made him lie facedown on the floor; that one of the men also tied up Dudek's wife; that when a customer named Donna Nichols walked into the bar, the man standing watch at the front door led her to the back, where her money was taken from her and she was tied up; that the men were there about 10 minutes; and that, after they left, he found that the money in the kitchen and in the cash register was gone, as were 8 to 10 bottles of whiskey, 4 to 5 cartons of cigarettes, and 500 lottery tickets. He testified also that on December 16, 1974, at the request of police investigator Epplen, he looked at several photographs — from one of which he identified defendant. Dudek said that the man sitting at the end of the bar near the door was short and light-skinned, wore a tam and blue jeans, weighed 130 pounds, and was approximately 24 or 25 years old; that he did not pay too much attention to the man in the middle; that he told a policeman who arrived on the scene (Officer Harry Gould) that the man at the back of the bar nearest to the kitchen wore black pants and a black undershirt, was tall and skinny, "had one of those hairdos," weighed approximately 140 pounds, and was 20 to 25 years old; and that while he was tied up he could not see anything because he was facing the floor. Dudek also testified that later someone from the lottery commission called him and gave him the name of defendant as the person who claimed to be a winner out of the group of tickets stolen from him and that he (Dudek) identified that ticket (which was number 1313-76) as one which was taken during the robbery.
Donna Nichols, as a State's witness, testified that she stopped in Dudek's tavern to pick up some lunch; that when she opened the door, a man put a gun to her head and she was led to the back of the bar where, after her money and watch were taken, she was tied up; and that one of the men whom she identified as defendant was standing over Dudek and pointing a gun at him. Nichols testified also that Investigator Epplen later showed her a group of eight or nine photographs which she examined twice to make certain before she identified defendant from one of the pictures; and that, subsequently, at a court hearing regarding the case, Investigator Epplen asked her to step out in the hallway to see if she could identify anyone who was involved in the robbery, and there she saw defendant standing in the hallway wearing a dark gray suit, with his hands behind his back. On cross-examination, she answered that during the robbery she "wasn't looking at [the men] that much"; that she told the police that the man who held a gun on Dudek was a male Negro, 5'11" tall, 22 or 23 years old, weighed 175 pounds, and wore a black tank top and dark pants; and that she was positive of her identification of defendant because she "just can't forget a man with a gun."
Dudek and Nichols completed their testimony on the first day of trial, and the next day defense counsel moved for a one-day continuance to examine some evidence which he said he had no prior knowledge of. The continuance was granted but, apparently having been informed that defense counsel wanted to question Dudek concerning this evidence, the trial court stated that Dudek could testify again if he appeared voluntarily but that a subpoena would not be enforced.
On the following day, the State rested its case, and defendant first called Officer Harry Gould, of the Chicago police department, who testified that on August 29 he responded to a call at Dudek's tavern, where he was told that three men had just robbed the establishment; that he was given descriptions of these men (although he could not remember who provided the descriptions); that one was described as a male Negro, 22 to 24 years of age, 5'11" tall, 175 pounds, black hair, brown eyes, dark complexion, and wearing a white bandanna and a gold earring; that a second man was described as a male Negro, 22 to 24 years old, 5'4" tall, 130 pounds, black hair, brown eyes, dark complexion, and wearing an undershirt and a goatee; and that a third man was described as a male Negro, 22 to 24 years old, 5'4" tall, 130 pounds, black hair, brown eyes, light complexion with blotches on his face, and wearing a red and white shirt.
When Gould's testimony was completed, defense counsel stated to the court, "I tried to get Mr. Dudek, but I wasn't able to do so." He followed this statement with an offer of proof as to certain preliminary hearing testimony concerning which he wanted to question Dudek.
Defendant then testified that at the time of the robbery, he was at a party in the apartment of an individual named Charlotte Robinson; that he bought the winning lottery ticket for a dollar, at the party, from a man named "Blue"; that he (defendant) has since been unable to locate anyone who was at the party and "Blue" has passed away; that Charlotte Robinson no longer lived in that apartment; that when he (defendant) discovered it was a winning ticket, he redeemed it by filling out a lottery form, using his correct name and address; and that when Nichols saw him in the corridor of the courthouse, he was in leg irons and chains with his hands cuffed in front of him. The State then introduced evidence that after a 1972 robbery conviction, he was given probation which was revoked in February of 1972 with a sentence of 2 to 7 years imposed.
Defendant first contends that plain error occurred when the trial court failed to ascertain in open court that he knowingly and voluntarily waived his right to a trial by jury.
Section 103-6 of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 103-6) provides that every person shall have a right of trial by jury unless understandably waived by defendant in open court.
There is no specific formula, however, for determining whether a defendant's waiver of his right to a jury trial is understandably made (People v. Palmer (1963), 27 Ill.2d 311, 189 N.E.2d 265; People v. Jackson (1975), 28 Ill. App.3d 208, 328 N.E.2d 98), and the decision in that regard rests upon the particular facts and circumstances of each case as disclosed by the record as a whole (People v. ...