APPEAL from the Circuit Court of Cook County; the Hon. ROMIE
J. PALMER, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 30, 1980.
Defendant, Willie Grier, was charged in an information with robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 18-1.) Following a bench trial, defendant was found guilty and was sentenced to serve an extended term of eight years in the Illinois Department of Corrections. From that judgment and sentence defendant appeals presenting the following issues for review: (1) whether the trial court erred in ruling that portions of the public defender's notes referring to a witness' oral statement were discoverable material for possible impeachment of the assistant public defender who testified as to that conversation; (2) whether the trial court's admission of the victim's out-of-court identification of defendant was reversible error; and (3) whether the trial court properly sentenced defendant to an extended term for robbery.
For reasons hereinafter set forth we affirm the judgment of the circuit court of Cook County.
Lilly Dennis, a 51-year-old nurse's assistant, testified that on December 12, 1978, at approximately 2 a.m., she was driving home from playing cards at a friend's home. At 110th and Michigan she stopped to buy some shrimp from White's Shrimp House. As she was about to exit her automobile, two young men opened the unlocked door to her car. The one on the driver's side ordered her to get out and threatened to blow her head off if she did not do so. The man on the passenger side whom she identified in court as defendant pushed her towards the driver's side door. When Dennis tried to keep her purse with her as she got out of her car, the other assailant grabbed her purse and threw it back in the car. Both men jumped in and drove west on 110th Street toward State Street. Dennis flagged down a police car immediately after the robbery occurred and told the officer that two young men had just taken her car and her purse. She described her car, a 1977 white on blue Cadillac, to the officer (John Lotito) and told him the direction in which they had fled. The officer drove the victim to the area of 103rd and Halsted where she saw the two men who had robbed her standing against the side of her car guarded by another police officer. Over objection by defense counsel, Dennis testified that she had identified the car and purse as hers, examined the purse and discovered that $15 was missing. She testified further that at the scene she saw the two young men who had taken her car and purse. In court she identified defendant as one of the two men who had robbed her. Defendant was the man who had approached her car from the passenger side.
On cross-examination Dennis testified that she had been driving home from a party at a friend's house at 61st and St. Lawrence when she decided to stop for some shrimp. She denied having had anything to drink at the party. Dennis said she believed it was very close to 2 a.m. when she stopped near the restaurant. She did not recall testifying at the preliminary hearing that she had said approximately 2:45 a.m. Dennis testified that the area where she parked was adequately lighted. She could not specify the height or weight of either man who robbed her and noticed no facial hair or other unusual characteristics. Dennis testified further that both men who had robbed her were at the preliminary hearing when she identified one of them, Carlos Woodward, as the man who approached the driver's side of her car. Dennis did not remember which man was present in court at the preliminary hearing when she had been asked to identify the man who came up to her from the driver's side. The prosecution and defense later stipulated that the transcript of the preliminary hearing testimony did not indicate whom she had so identified. Dennis testified that she did not remember being asked how long the offender remained at the scene or answering "within a half hour." She saw her car again about 2:30 a.m.
Sergeant Charles Berglund of the Chicago Police Department testified that on December 12, 1978, at 2:45 a.m., he was on duty in the vicinity of 103rd and Halsted. At that time he saw a late model Cadillac, white over blue, with two male occupants traveling westbound on 103rd approaching Halsted. In response to a flash message, the officer stopped the car and asked the driver whose car it was. It was stipulated that the sergeant would identify defendant as the passenger. The driver, Carlos Woodward, told Berglund the car belonged to his aunt, that both he and his passenger, defendant, had just left work and were going to a friend's house at 75th and Rhodes for a few drinks. The officer checked the registration of the vehicle and discovered that it was registered to a Lilly Dennis who, to the officer's knowledge, had been robbed. Berglund then ordered both men to get out of the car and place their hands on top of the car. He saw a purse in the back seat of the car. Within minutes two other officers brought the victim to the scene. Berglund asked Dennis if the car he had stopped was hers. She said yes and identified the men in custody, defendant and Carlos Woodward, as the two who had robbed her. This testimony was admitted over objection.
On cross-examination Berglund testified that the police report he signed contained no statement by Carlos Woodward to any officer. In Berglund's opinion, Dennis appeared to have been drinking that evening but was not intoxicated. She was able to relate the details of the robbery and where it had occurred.
Officer John Lotito testified that on December 12, 1978, he was assigned to a beat patrol in the 5th District with his partner, Tom Costello. At approximately 2:30 or 2:45 a.m., he was waved down by Dennis who said she had just been robbed of her car and purse by two men. She described the car to the officer who put out a flash message for it. While touring the area with the victim, they received a radio message and went to 102nd and Halsted. There they saw a 1977 Cadillac stopped by another police car and two male Negroes standing up against the car. The victim identified her car. When Officer Lotito testified that the victim identified the two men as the ones who had robbed her, defense counsel objected. The court sustained the objection and the answer was stricken.
On cross-examination Officer Lotito testified that the victim had described the offenders as two male Negroes. He did not recall whether she had given any more detailed description than that.
Officer Michael Leonard testified that he was one of the officers who responded to the flash message and went to the location where Sergeant Berglund had arrested defendant and Carlos Woodward. Leonard said he searched the victim's car and found a woman's black purse with a driver's license and other identification belonging to one Lilly Dennis. The victim identified the purse and its contents. The officer testified that Dennis had an odor of alcohol on her breath, but that in his opinion she spoke coherently and did not appear to be under the influence of alcohol. On cross-examination Leonard testified that in characterizing the victim's sobriety he had checked the box marked "had been drinking" on his report. The officer denied that the delay in preparing the reports was attributable to the victim's consumption of alcohol. He testified further that he did not recall speaking to Assistant Public Defender Richard Scholz or anyone else at the preliminary hearing about the witness' sobriety. Finally Leonard testified that he did not recall taking any statements from Carlos Woodward. After stipulating that defendant was 20 years old, the State rested.
Testifying for defendant, Assistant Public Defender Richard Scholz said that he had represented defendant at the preliminary hearing before Judge Moran on December 13, 1978, and that the victim then identified defendant and not Carlos Woodward as the man who had approached her car from the driver's side. According to Scholz, Woodward was not in court when this identification was made. He testified further that at the preliminary hearing Officer Leonard told him that the victim had been drinking and was drunk when he saw her the day of the robbery. On cross-examination, Scholz emphasized that Leonard had said, "She had been drinking, she was drunk." After Scholz testified that he had taken notes of his conversation with Leonard, the prosecutor asked the trial court to order Scholz's notes on that conversation to be turned over to the prosecutor for possible impeachment. Defense counsel objected on the ground that they were privileged information as "work product." The court ordered defense counsel to present the prosecutor with two excised portions of Scholz's notes which referred to his conversation with Leonard at the time of the preliminary hearing. The supplemental record filed by defendant contains a copy of one of the excised portions and the paper from which it was torn, People's Exhibit No. 2, in the trial court. Scholz testified that in his notes of his conversation with Leonard he wrote, "Cop [Leonard] said she had been drinking." (People's Exhibit No. 2.) On page 1 of his notes, Scholz wrote "Victim had been drinking" under the heading "Summary of police statements." He said that nowhere in the exhibit did he use the word "drunk" in relating Leonard's conversation.
Defendant's last witness, Carlos Woodward, testified that on December 13, 1978, he entered a plea of guilty to the charge of robbing Mrs. Dennis on December 12 and was placed on two years felony probation. Woodward said that he first met Dennis near the shrimp restaurant in the vicinity of 110th and Michigan. He was alone and she was sitting in her car. According to Woodward, Dennis asked him if the restaurant was still open. He offered to check if it was. After he found that it was closed, he told her there was a White Castle open at 111th and State. Woodward said the two of them drove to the White Castle. When they arrived, Dennis got out to eat but Woodward decided to take her purse and steal her car. Woodward testified that defendant was not with him when he robbed Dennis. He put the purse on the back floor of the car and drove south on State Street, then back to Michigan Avenue. When he got to Michigan he saw defendant standing at a bus stop. Woodward offered to give defendant a ride. Defendant asked him if the car was stolen and Woodward said no, it belonged to his aunt. Defendant got into the car, and the two headed towards defendant's home. About five minutes after he picked up defendant, Woodward was stopped by the police. Woodward testified that he told the police that defendant was not with him when he robbed Dennis. He also so testified at the preliminary hearing.
On cross-examination Woodward admitted that he did not go to court of his own free will but that he was brought there by a sheriff. Woodward testified that Dennis offered him a drink of Canadian Club from her pocketbook on the way to the White Castle. He had a short drink and when she exited the car to go into the restaurant, he grabbed her purse and drove off in her car. Woodward said that he picked up defendant on Michigan Avenue just a block or two north of 115th Street. He did not recall testifying at the preliminary hearing that he had picked defendant up at 105th and Michigan. On further cross-examination Woodward testified that he did not tell any police officer at the scene that defendant was not with him when he robbed the victim. He did not immediately tell them anything when he arrived at the station and could not recall exactly what he did say when he decided to speak to the police at the station. Woodward testified that at no time did he tell defendant he had just robbed a woman and that the police might be looking for him.
After hearing arguments of counsel, the trial court found defendant guilty as charged and ordered a presentence investigation. The report indicated that on May 3, 1977, defendant pleaded guilty to a charge of burglary and was placed on three years felony probation. On November 10, 1977, he was sentenced to serve one to four years in the Illinois State Penitentiary following his plea of guilty to another burglary. On November 23, 1977, defendant pleaded guilty to a charge of robbery and received a one- to four-year sentence to run concurrently with his sentence on the second burglary conviction. Defendant was paroled on September 8, 1978. Based on this record, the trial court sentenced defendant to serve an extended term of eight years in the Department of Corrections.
Defendant's first assignment of error is that the trial court improperly ordered portions of the public defender's notes referring to a witness' oral statement to be turned over to the prosecution for purposes of possible impeachment of the ...