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:
After a jury trial, defendant Myron Fleming was found guilty of armed robbery and sentenced to 4 to 6 years' imprisonment. Defendant appeals, contending that (1) the trial court erred when it refused to conduct an evidentiary hearing to determine whether defendant was denied his right to an impartial jury because four prospective jurors, who were black, were excused from jury service through the State's exercise of peremptory challenges; (2) the trial court erred in allowing the State to present evidence of defendant's previous conviction for robbery; (3) the lineup was unduly suggestive, rendering the victim's and two witnesses' in-court identifications unreliable; and (4) the State violated defendant's right to post-arrest silence during both cross-examination of defendant and closing argument.
On December 24, 1973, at 4:20 p.m., Josephine Caira, the complaining witness, parked her automobile in the parking lot located behind Marshall Field & Company (Field's) at Harlem Avenue and Lake Street, in Oak Park, Illinois. She returned to her car at approximately 5 p.m. She unlocked the car door and was halfway into her car when she heard a voice say to her: "I have a gun, give me your money or I will shoot you." Caira testified that the lighting was very clear and very good because big hung lights were over the cars. The lights were similar to street lights or expressway lights, but were much brighter. She also testified that the dome light in her car went on when she opened the car door. Caira stated that when defendant first spoke to her his face was about one foot from her face and that throughout the incident she was looking directly at defendant. Caira gave defendant her money. Defendant sat in the driver's seat and closed and locked the car door. Caira then made her packages fall off the front seat onto the floor. At this time, she clicked the automatic open switch on the passenger's door and ran out of the car screaming. She observed defendant leave her car and walk to an old beaten-up white car. The car's rear license plate was hanging on with wire. When she was still at the scene of the crime, a police officer approached Caira and told her "we have him, we arrested him."
Approximately one-half hour later, Caira went to the Oak Park Police Station to view a lineup. Caira testified that out of a lineup in which three men participated, she identified defendant as the man who had robbed her. She stated that defendant and one of the other participants wore hats. Caira also made an in-court identification of defendant as the man who robbed her.
Thomas Schiave and Joseph Cantafio were walking down the alley towards the parking lot behind Field's with Donald Rubino at about 5 p.m. on the date of the incident. They observed Caira screaming that she had been robbed. After Caira indicated that defendant, who was walking toward his car, was the robber, the three men started to chase after him. Defendant entered his car and started to drive away. Later, both Schiave and Cantafio described the car that the robber drove away in as being an old white car with a rear license plate reading VY 39. The rear license plate was hanging off. When defendant started to drive away, the three men continued to pursue him. Schiave and Cantafio testified that the lighting in the parking lot and along the alley was very good. Schiave testified that as defendant walked to his car, defendant turned sideways and looked toward Schiave. Cantafio testified that when he was approximately five to 10 feet from defendant's car, he looked inside the car and could see the whole side of defendant's face.
Schiave and Cantafio both testified that about 20 minutes later they went to the Oak Park Police Station, where both observed the same white car that had been in the alley near Field's parking lot and in which defendant had driven away. Both also viewed a lineup consisting of three men, and both identified defendant as being the man whom they had observed driving the white car. Cantafio had testified at the preliminary hearing on February 11, 1974, that neither of the men other than defendant who participated in the lineup wore hats. He then corrected himself and testified that all the men in the lineup wore hats. Both Schiave and Cantafio also made positive in-court identifications of defendant.
Responding to a radio call at about 5 p.m. on December 24, 1973, two Oak Park police officers arrested defendant within approximately two miles of Field's. Defendant was driving an older model white automobile. The car's license plate began with the numbers VY 39.
Defendant made a motion in limine to preclude the State from bringing out on cross-examination any prior criminal convictions. Defendant had been convicted of robbery on July 17, 1967, and sentenced to a term of from 1 to 3 years imprisonment. Defendant had been discharged from imprisonment on June 20, 1968. He was charged with the present offense of armed robbery on December 24, 1973. Trial commenced on February 7, 1978. On February 10, 1978, the trial court permitted the State to introduce evidence of defendant's prior conviction for robbery.
Defense counsel also made a motion to suppress the in-court identifications of defendant made by Caira, Schiave and Cantafio, arguing that the lineup was improperly conducted.
Defendant testified that on December 24, 1973, he had gone for gasoline; he was unable to get any and, as he was returning home, he was stopped and arrested by the police. During direct examination, defense counsel asked defendant, "Up to the time that you got to the station had either of the officers asked you if you committed a robbery?" Defendant responded, "No. They did not. They told me I committed a robbery." Defendant testified that he was taken into a room at the police station and that at that time he asked "what [he] was being held on." An officer responded that "you know you stuck up the lady." Defendant responded "what lady and where?" Defendant stated that he was never asked if he committed the offense. Defendant responded in the negative when defense counsel asked him if he had committed the crime. Defendant testified that he was the only participant in the lineup wearing a hat. During cross-examination, defendant was questioned about whether prior to trial defendant had told anyone what he was doing the night the robbery occurred.
During closing argument, defense counsel stated that "* * * [defendant] told you and the officer told you that they never asked him if he did it * * * the detective never asked him if he did it [nor was he asked] where is the money." In rebuttal, the assistant State's attorney commented that defendant was trying to create an inference that defendant did not have an opportunity to tell anyone his story prior to trial. Defendant objected and the court overruled the objection, ruling that the comment was a fair inference from the record.
The assistant State's attorney also stated during closing argument that "* * * first of all the evidence proves that [defendant] is a professional robber. He acts like a professional robber." Defendant objected. The State responded that "I am discussing the physical evidence that took place on December 24, 1973." The court overruled the defendant's objection. The State further argued that defendant used a gun and a car which could not be traced to him.
Defendant's motion to suppress the in-court identifications made by Caira, Schiave and Cantafio was denied. The court held that even if the lineup was unduly suggestive, the identifying witnesses' testimony as to their initial confrontation with defendant had an independent origin.
The jury found defendant guilty of armed robbery. Defendant's motion for a new trial was denied and defendant was sentenced to a term of from 4 to 6 years.
Defendant, a black, first contends that the trial court erred when it refused to conduct an evidentiary hearing for the purpose of determining whether defendant was denied his right to an impartial jury because four prospective jurors, who were black, were dismissed from jury service through the State's exercise of peremptory challenges.
In Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, defendant argued that he was denied equal protection of the law by discrimination in the selection of jurors from the veniremen, demonstrated by the fact that the prosecutor exercised his peremptory challenges to remove all blacks from the jury panel. The United States Supreme Court held that where there is no showing of a systematic pattern, over time, of the exclusion of a particular racial group from sitting on juries, a prosecutor's motives may not be inquired into when he excludes members of that group ...