APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
L. GILLIS, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 27, 1981.
Defendants Jessie Lopez and Ruben Mendiola were charged by information with the offenses of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), attempt armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 8-4), and unlawful use of weapons (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(7)). Following a bench trial, defendant Lopez was found guilty of armed robbery and unlawful use of weapons and was sentenced to periods of six and two years imprisonment respectively, with the sentences to run concurrently. Defendant Mendiola was found guilty of armed robbery and was sentenced to a period of six years imprisonment. On appeal, they contend that: (1) the trial court erred in denying their motion to suppress statements made by them; (2) the trial court erred in denying their motion to suppress identification testimony resulting from an unnecessary suggestive lineup procedure; and (3) the State failed to prove them guilty beyond a reasonable doubt.
On March 1, 1977, at around 1 a.m., Ghanshyam Patel and Vivian Becker closed for the evening the Convenient Food Store, where they worked. After locking the front door, they went through the side gangway to the rear parking lot. Patel was carrying a bag of groceries and the store's business records. As they reached Becker's car, three men approached them. Two of the men were identified by Patel as defendants Lopez and Mendiola. Lopez was carrying a sawed-off shotgun and was wearing a beige coat. Mendiola was wearing a black leather coat and held a small automatic weapon. The third individual stood approximately 10 to 12 feet from Patel and was not identified by either victim. Defendants, however, were standing two feet from Patel. The area was illuminated by the lights from the front of the store, an overhead light from the building next door, street lights and lights on a nearby "El" station.
Defendant Lopez told them this was a stickup, and Ms. Becker began screaming. When Mendiola said, "This is a hold-up," she continued screaming and began running down the alley and out onto the street where she was picked up by the occupants of a passing automobile and taken to the police station.
Defendants ordered Patel to raise his hands and turn around facing away from them. They took his wallet, which contained $20, his store records and the bag of groceries, and then they fled down the alley. Patel estimated that "everything happened within two minutes." When he felt the defendants were gone, Patel went to the front of the store and flagged down a police car. He was then taken to the police station.
At the time of this occurrence, Chicago Police Officer Patrick Battaglia and his partner, Officer Paul Carroll, were on routine patrol in the squad car near the Convenient Food Store. They heard a woman screaming for help and began to tour the area. Almost immediately, Officer Battaglia observed a black and white Chrysler, with the motor running and the lights off, parked facing north in the alley behind the Convenient Food Store. Inside the car, a man, Evaristo Jiminez, and a woman, Lulu Torres, were in the front seat. Although the police officers did not stop to speak with the occupants of the car, Battaglia did write down the license plate number of the car. At that moment, Battaglia saw an individual running down the alley behind the Convenient Food Store. The police officers apprehended this man, who was later identified as Gene Cisneros. While arresting Cisneros, Battaglia saw a yellow Ford Maverick, with the lights off, parked at the north end of the alley. Battaglia spoke with Anita Ortiz and Adam Lopez, who were inside the Maverick, and then arrested them. Those two along with Gene Cisneros were transported to the police station.
At the police station, Battaglia again spoke with Anita Ortiz and Adam Lopez and then proceeded to an address on the south side of Chicago. At this location he saw the same black and white Chrysler which he had previously seen at the south end of the alley behind the Convenient Food Store. Battaglia and other officers entered the home at this address and arrested the defendants, along with Evaristo Jiminez, Michael Torres, and Lulu Torres. The defendants were informed of their rights at this time. Later, Battaglia, accompanied by Michael Torres and Evaristo Jiminez, went to another house where he obtained a pistol and a sawed-off shotgun.
After the robbery, Patel told the police that both men with the guns were approximately five feet, three inches tall, weighed 130 to 140 pounds, and were 17 to 18 years old. Later at the police station, Patel told Battaglia that the man armed with the shotgun wore a beige coat and the man brandishing the automatic pistol wore a black leather coat. Officer Carroll testified that both Patel and Ms. Becker told him at the police station that three men accosted them, but only two had guns. Officer Carroll's police report, however, indicated that two men were involved in the robbery.
Approximately three hours after the robbery, Ms. Becker and Patel were asked to view a lineup. Sometime prior to the lineup, Battaglia told Patel that he had three people from the area in custody for questioning. The lineup, conducted by Investigator Fornelli, consisted of six individuals: the two defendants, and Michael Torres, Adam Lopez, Evaristo Jiminez and Gene Cisneros. Ms. Becker was unable to identify any participant in the lineup because, in her words, she was "so sick" and "too scared." Patel was standing behind Ms. Becker when she viewed the lineup, but did not hear her identify anyone in the lineup. Patel was then asked to view the lineup, and he identified the defendants who were located at both ends of the lineup. Patel and Ms. Becker were then taken to another room in the police station. At trial, Patel identified defendants as the men who robbed him and the guns recovered by Officer Battaglia as the weapons used by the defendants.
After the lineup, Investigator Fornelli informed the defendants of their rights and that they were charged with armed robbery. Defendants told Investigator Fornelli that they wanted to apologize to Patel. As they passed the room containing Patel and Ms. Becker, they stopped and, according to Battaglia, they said, "[S]orry, we'd like to give you your $20 back." According to Patel, defendants said, "[S]orry, that they will return my stuff if I don't take any further action." Patel added that four to six police officers were present when defendants made this statement. Ms. Becker, however, who was with Patel at all times after the lineup, does not remember any apology made by the defendants.
Both defendants testified on their own behalf and offered a matching alibi. According to defendants, they were at the home of Nick Abernathy and his wife at the time of the robbery. Also present at the Abernathy home that evening were Anita Ortiz, Adam Lopez, Evaristo Jiminez and his wife Lucy. At approximately 11:30 p.m., Jiminez asked to borrow defendant Mendiola's car, a black and white Chrysler, to bring his wife home. Mendiola allowed Jiminez to use his car. Defendants remained at the Abernathys' home until 2 a.m., and still Jiminez had not returned with the car. They then took a cab to Jiminez' home where they saw Mendiola's car parked outside. The police arrived shortly thereafter and arrested defendants.
After they were placed in a lineup at the police station, a plainclothes officer told the defendants that they had been identified by Patel. According to Mendiola, the plainclothes officer told them "to at least go tell him [Patel] that we were sorry for what we did, and I told him I'm sorry because of what happened to him, not because I did it." Both defendants testified that they told Patel they were sorry for what happened to him, but neither defendant told ...