APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. ZAFIRATOS, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendant, Henry Chapman, Jr., was charged by information with committing armed robbery at an ice cream shop in Forest Park, Illinois. Following trial by jury he was found guilty and sentenced to a term of 10 years. On appeal, the defendant contends that: (1) he was not identified as the offender beyond a reasonable doubt; (2) the State did not prove beyond a reasonable doubt that a gun was used in the commission of the offense; (3) the failure of the trial court to instruct the jury sua sponte on robbery constituted reversible error; (4) he was denied effective assistance of counsel because his attorney failed to tender a jury instruction on the offense of robbery; and (5) he was deprived of his right to a fair trial by the prosecutor's improper remarks during closing argument.
Cathy E. Lauer testified that she was working at the Baskin-Robbins Ice Cream Shop in Forest Park, Illinois on the afternoon of May 22, 1978. At approximately 1:50 p.m., the defendant entered the shop. The shop was well illuminated by fluorescent and natural light.
Lauer approached the defendant. She heard him mumbling. At first she did not understand what he was saying. After he repeated himself several times she realized that he was asking her to open the cash register. Lauer said "no" and told the defendant to go elsewhere. The defendant was fumbling with something under his shirt. He had his hand on an object which was bulging under the shirt.
The defendant glanced at what was under his shirt and then looked out the door. At first Lauer thought he was acting in an ordinary manner. Later she noticed that he began to get nervous. The defendant moved closer to the cash register. He said "open it." Lauer said she would have to "push something" to open it. The defendant told her to do so. Lauer saw a dark brown metal object inside the defendant's shirt. She thought the object was a gun.
The defendant was a foot and a half from Lauer. He told her that he was going to "count to three." The defendant moved closer to Lauer and his shirt opened. She saw the cylinder of a gun. The rest of the gun was covered by the defendant's hand. Lauer looked at the defendant, looked at the gun, then opened the cash register.
The defendant reached over the register with his left hand. With his right hand he "made a motion like he stuck the gun farther in" under his shirt. He then grabbed for the money in the register with his right hand. Lauer grabbed the defendant's arms and hollered for the manager. The defendant ran out the front door of the store with the money.
On cross-examination Lauer admitted that at the preliminary hearing she stated "he opens his shirt up and there at the cash register I see, I can't really see that good, but I saw something that was metal. I'm not positive of what it was, but I thought it was a gun. I believe it's a gun."
The manager of the shop, Mel Heroldt, testified that he and Cathy Lauer ran out the back door of the shop. He saw the defendant heading for a car parked behind the store. He yelled for the defendant to freeze. The defendant was sitting in his car. Heroldt went up to the side of the defendant's car.
The defendant told Heroldt that he had a wife and child. Heroldt responded that so did everyone else. The defendant handed the money to Heroldt and asked whether he could leave his car. Heroldt said that he could. The defendant got out of his car, picked up the hat he had dropped, entered his car and drove away.
Both Lauer and Heroldt described the defendant as being 6' 1" tall and weighing approximately 185 pounds. Both witnesses were able to identify the defendant's photograph from a group of photographs shown to them by the police on the day following the robbery. Lauer stated that she observed the defendant in the store for "three or four, maybe five" minutes during which time the defendant was 10 inches to 2 feet away from her. She also observed the defendant for 30 seconds outside the store. Heroldt stated that he observed the defendant between 45 and 75 seconds. Lauer and Heroldt identified the defendant at trial as the offender.
Heroldt told the police that the offender had been driving an old blue Buick and he gave them the license plate number. The police used this information to determine that the car was owned by the defendant.
The defendant testified that at the time of occurrence he was approximately 6' 1" tall and weighed about 157 pounds. At the time of the occurrence he wore heavy, bushy sideburns which extended nearly to his chin. He stated that his Buick was green, not blue. His car was stolen on May 21, 1978. He next saw his car on May 24, 1978, near the Eisenhower Expressway. He denied committing the armed robbery and said he had never seen Lauer or Heroldt before.
The jury was instructed on armed robbery. Defense counsel did not object to the armed robbery instruction nor ...