APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of armed robbery and received a sentence of 5 to 15 years. On appeal, he contends that (1) the trial court's refusal at a pretrial hearing to permit introduction of evidence concerning the alleged illegality of defendant's arrest was an abuse of discretion; (2) testimony as to the contents of an anonymous telephone call was inadmissible hearsay; (3) the prosecutor should not have been permitted to testify as a rebuttal witness while continuing to prosecute the case; (4) cross-examination of a prosecution witness was arbitrarily restricted on a crucial issue; and (5) the State made improper remarks in closing argument.
It appears that two persons committed an armed robbery of Sherrod Pierce's tavern on June 1, 1974, and that subsequently defendant and Jeffrey Truss were charged with the crime. At the commencement of defendant's trial, he moved in limine to suppress testimony concerning a lineup and the subsequent in-court identifications of witnesses at the lineup. A later amendment to the motion asserted that defendant's arrest was warrantless and without probable cause. After defendant testified to his warrantless arrest, defense counsel was precluded from asking any questions concerning the arrest on the basis that in both his motion and the amendment thereto he asked the court only "to suppress any testimony of the lineup identification and to bar and suppress any identification in court." In view thereof, the court refused any offer of proof by defense counsel concerning the arrest.
Sherrod Pierce then testified that he received a telephone call from a police officer to view a lineup; that he was told by the officer that "they had two suspects that would be in the lineup"; that he did not speak to any officers at the station before viewing the lineup of seven or eight persons but, afterwards, did tell the police he recognized two of them as the offenders; and that, from a photograph of the lineup, he later pointed out defendant and Jeffrey Truss as those persons. John Coleman testified that he was called by Pierce to view the lineup but had no discussion with Pierce or anyone else about the lineup before he viewed it. He identified defendant and Truss as the offenders. Police officer Gallagher, who conducted the lineup, testified that he did not tell anyone that there would be two suspects in it. The motion to suppress was then denied.
At the trial, Sherrod Pierce testified that shortly before closing time on the night in question, defendant and another man entered his tavern; that defendant walked over to the wall telephone and appeared to use it briefly; that he then put a gun to Pierce's head and announced a "stickup"; that defendant told his partner Jeffrey Truss to go behind the bar and get the money, whereupon Truss jumped over the bar and emptied $187 from the cash register and Pierce gave defendant the $33 in his pockets; that Pierce described the offenders to police, noting in particular that defendant wore a beard; that, as he was relating the incident to the police, he answered a telephone call from an unidentified woman; and that he handed the telephone to an officer whom he then saw write down some numbers. Pierce testified also that Ricky Hayes (the bartender), Thomas Hayes, and John Coleman were in the tavern that evening.
During cross-examination of Pierce, the trial court refused a defense request to bring Willie Sims into court to be viewed by Pierce, purportedly to determine whether or not Sims was in the tavern at the time of the offense. Pierce testified specifically, however, that Sims had not been in the tavern.
Richard Hayes testified that he was bartending at Pierce's tavern when two men entered and pretended to use the telephone; that they walked to the counter, and defendant put a gun to Pierce's head and announced a "stickup"; that defendant told Truss to take money from the cash register — which he did. He testified also that he knew Sims and, when asked whether he was in the tavern that night, Hayes said, `I am not sure but I don't think he was."
John Coleman testified that he was present at Pierce's lounge when two men walked in and picked up the telephone as if to make a call; that they walked outside briefly and, upon returning, defendant pulled out a revolver which he pointed at Pierce's face and announced a robbery; and that he told Truss to get the money from the cash register.
Police investigator George Basile testified that after arriving with his partner at the tavern to investigate the incident, a police officer at the scene gave him a piece of paper on which was written the number of an Illinois license plate which the other officer had received over the telephone; that he and his partner then proceeded to an address where he saw an automobile in the driveway bearing that license number; that he went to the house at that address and was invited in by Truss; that Truss told Basile he and defendant had used his father's car that night and had been in the neighborhood of Pierce's tavern; that Basile also talked to defendant, who admitted that he had been with Truss but said they had not been in that area, and that both were placed under arrest and taken to a police station.
Jeffrey Truss testified that he and defendant left the Truss home on the night in question and went to a liquor store and then to a tavern — following which they went to a second tavern where they stayed until closing and then returned home; and that he had never been in the tavern owned by Pierce.
Defendant testified substantially as did Truss; but, in addition, stated that while he told investigator Basile he had been in the area of the robbery at approximately the time it occurred, Basile did not ask whether he knew anything about a tavern holdup.
Willie Sims, called by the defense, testified that he was in Pierce's tavern at the time in question; that the offenders were there when he arrived; that he saw them leave and return in about five minutes; that one of them "put the gun on Sherrod"; that he could not remember having consumed alcohol before arriving at the bar but drank two bottles of beer while he was there; that neither defendant nor Truss was one of the offenders; that he was not asked by the police for information concerning either offender and described them for the first time at trial; and that he could not recall telling the prosecutor that he did not remember what had happened that night.
As the sole witness in rebuttal, assistant State's Attorney Irwin Solganick (one of the two prosecutors in the instant case) testified over objection that he had spoken to Sims in the courtroom during the trial and that Sims had told him and the co-prosecutor that "he [Sims] had no recollection of the events that actually happened in the robbery" and "that he couldn't identify anybody." He also stated that Sims was intoxicated when he spoke with him. The trial court then overruled an objection to Solganick giving any closing argument, but it directed him not to make any argument concerning any of the facts to which he had ...