APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. SULSKI, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 29, 1980.
After a jury trial, defendant Woodrow Richard was found guilty of armed robbery and sentenced to not less than four and not more than 10 years imprisonment. Defendant appeals, contending that (1) the trial judge committed reversible error when he denied defendant's motion to suppress the identification evidence because the lineup from which he was identified was unnecessarily suggestive; (2) the trial court erred in allowing the State to amend its witness list and sanctions should have been imposed upon the State for failure to comply with Supreme Court Rule 412 (Ill. Rev. Stat. 1979, ch. 110A, par. 412); (3) he was not proved guilty beyond a reasonable doubt; and (4) he was prejudiced by the State's comments during closing argument (a) referring to defendant's failure to testify in his own behalf, and (b) insinuating that defense counsel had been underhanded, deceitful and tricky in conducting the defense.
Prior to trial, the court below held a hearing on the defense motion to suppress the identification of defendant by the complainant, Lawrence Baker. Sergeant Keating of the Chicago Police Department testified that defendant was brought to the police station at Harrison and Kedzie Streets in Chicago, Illinois, on November 10, 1976. During his investigation of a separate crime, Keating obtained information connecting defendant to the robbery of Baker. Sergeant Keating called Baker in the early morning hours on November 11, 1976, and asked him to come to the police station to view a lineup. Baker arrived at the police station at about 5 a.m. When Baker came to the second floor of the police station, he was received by Sergeant Keating and while on the second floor Baker spent his time in Sergeant Keating's office. At about 5:10 a.m., Sergeant Keating conducted a lineup which included defendant and five other black men. Sergeant Keating accompanied Baker down the stairway to the lockup on the first floor where the lineup was held. Sergeant Keating estimated the weight of the individuals participating in the lineup: subject one — 145-150 pounds; subject two — 165 pounds; subject three — 145 pounds; subject four — 175 pounds; subject five — 150-160 pounds; and subject six — 150 pounds. Defendant was subject four. Keating testified that Baker did not see defendant prior to the lineup. The sergeant did not remember seeing defendant's mother, Ernestine Patton, on the second floor at the time Baker arrived at the station.
Baker testified that he received a telephone call at about 3:30 a.m. on November 11, 1976, from Sergeant Keating, asking him to come to the police station. Baker arrived at the station at about 5:10 a.m. He went to the station's second floor, where he met Sergeant Keating and went into Keating's office. Baker saw only police officers on the second floor. Baker stated that he did not see defendant or any of the other participants in the lineup prior to viewing the lineup. Except for standing for about one minute at the second floor desk, Baker spent the entire time at the station prior to the lineup in Keating's office with the door closed. Baker was taken to view the lineup at approximately 5:30 a.m. While walking to the lineup, his attention was not drawn to any black males.
Ernestine Patton, defendant's mother, testified that she went to the police station at about 7 p.m. on November 10, 1976. She later left the station and returned at 12:15 a.m. She saw defendant on the second floor in a closed room. She stated that Baker came to the station's second floor about 3:30 or 4 a.m. Patton said defendant was brought out of the room where he was being held and led past Baker. Defendant was about 10 feet from Baker. Defendant was taken into a room and, when he emerged, he was again led in front of Baker. Baker was talking to a policeman when defendant was led past him. Patton said she did not know for a fact whether Baker saw defendant. She said that nothing was done during the lineup to bring Baker's attention to the fact that her son was in the lineup.
Defendant testified at the hearing on the motion to suppress the identification that he was arrested on November 10, 1976, and taken to the police station at Harrison and Kedzie Streets, in Chicago, Illinois. Defendant stated that prior to the lineup he saw Baker at about 3:30 a.m. standing at the second floor desk while he was being taken to be photographed. Defendant stated that he was about 30 to 40 feet from the desk. Defendant said Baker was speaking with a police officer and that both Baker and the police officer looked up at him. After the pictures were taken, defendant testified he was led back the same way as he had come previously and that he again encountered Baker. Defendant stated that no one pointed him out when he walked past Baker. Defendant stopped for two or three minutes and stood there staring at Baker. Defendant said he had never seen Baker before that time.
Officer Leonard Sykes, of the Chicago Police Department, testified that Baker arrived at the police station at approximately 5 a.m. Defendant was kept in an interview room on the second floor, with the door closed. At about 2 a.m., Sykes took defendant to be photographed. Baker was not at the police station at that time. At about 5 a.m., Sykes took defendant to the lineup. Prior to the lineup, no one showed defendant to Baker. Sykes prepared the lineup, selecting five other individuals within defendant's age bracket, complexion and physical fitting.
Following arguments by both sides, the trial court denied defendant's motion to suppress the identification.
On September 6, 1977, the State asked the court for leave to amend their answer to discovery to add the name of a Mrs. Hill. The assistant State's attorney said he was not aware of her existence until he spoke with Sergeant Keating prior to the motion to suppress the identification. The court allowed the name of Mrs. Hill to be added over defense counsel's objection.
At trial, Baker testified that on July 30, 1976, he was a cement truck driver employed by Edmier, Incorporated. On that date, he was delivering concrete at 2243 Kildare, in Chicago, Illinois. He arrived at that address at approximately 2:30 p.m., and he proceeded to unload a load of concrete in the alley. He unloaded the concrete for about an hour. Baker collected $205 in cash for the concrete and placed the money in his shirt.
Baker proceeded to drive down the alley so he could make a turn and return to Edmier when he noticed an individual wearing a red bandana around the top of his head standing near the end of the alley. As Baker approached the end of the alley, he reached a point where, because of the size of his truck and the position of a telephone pole, it was necessary to stop and back up to make the turn. As he started to back up, the person he had seen earlier came up to his truck. Baker identified defendant in open court as the man he saw in the alley. Defendant came up to the side of the truck with a cigarette in his hand and asked Baker if he had a light. Baker replied that he did not smoke, but the truck had a lighter. While talking to defendant, Baker was looking directly down at his face. When the lighter was ready, Baker handed it to defendant. Defendant lit the cigarette and returned the lighter. Baker then put the truck in reverse so he could put the truck in position to leave the alley. He checked the rear view mirror and saw defendant pointing a gun at him. Defendant told Baker to get out of the truck.
Baker came down and faced defendant. Defendant told Baker to turn around towards the truck. When Baker turned, defendant put the gun to the back of his head. Defendant then began to go through Baker's pockets. Baker's car keys and change were taken. Defendant then reached into Baker's shirt pocket and removed the $205. Defendant told Baker not to move and ran down the alley. Baker climbed back into the truck and watched defendant run into a vacant lot.
Baker contacted the police and told them he had been robbed. He described defendant as a male Negro, about five feet 10 to six feet, approximately 20 to 25 years of age, kind of stocky, 170 to 180 pounds, medium complexion, brown hair and brown eyes. Baker also told the police that his ...