APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN E. SYPE, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant was convicted of armed robbery after a jury trial and sentenced to six years' imprisonment. He appeals, contending that he was denied effective assistance of counsel.
Essentially, defendant relies on the failure of his retained counsel to impeach the sole occurrence witness by reference to her inconsistent testimony at a preliminary hearing concerning the identification of defendant.
The armed robbery occurred on June 20, 1978, at One-Stop Pharmacy in Rockford. In his opening statement to the jury, the prosecutor stated that he would prove that on June 20 that two men, one of whom was the defendant, entered the pharmacy and went to the rear register to find out if there were money orders kept there; that upon learning that there were none they left and two different persons came in and robbed only the front register.
The manager of the pharmacy, Willie Bryant, testified that the defendant was not one of the two men who inquired about the money orders at the rear register. This was shortly after 4 p.m. Phyllis Kirkwood at trial testified that she was working at the front register at approximately 4:25 p.m. when a man came in and asked for a pack of cigarettes; after she got the cigarettes she turned around and saw another man standing in front of her with a gun pointing at her asking for the drawer. When she said she didn't know how to take it out he threatened to kill her and reached over and took the drawer out himself. She also testified that about two minutes prior to that occurrence she observed two men enter and go to the back of the store. Those two men walked past the front register on the way out of the store, and she recalled saying "Hello" to them.
She was then asked if any of the four people she had mentioned were in the courtroom and she pointed to the defendant. The following colloquy then occurred:
"[The prosecutor]: May the record reflect, Your Honor, that the witness has pointed to the Defendant Thomas?
The court: The record may so show.
Q [by the prosecutor]: To which group did he belong? The — the two that came in first or the two that came in second?
A: The two that came in second.
A: I believe the man — he was the man who bought the Kools from me."
Two police officers testified to an oral statement made by the defendant. The testimony was that defendant and a David McLaurin planned the robbery of the pharmacy, went into the store to ask about money orders, and left; they then got a shot gun which they gave to Gregory Gage; whereupon Gage and a Johnny Bryant robbed the pharmacy while defendant and McLaurin sat in the car; and that after the robbery the four men met and divided the proceeds.
Defendant presented a number of alibi witnesses and also testified in his own behalf. He remembered having a conversation with the police officers but denied saying ...