APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. SCOTILLO, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Isaiah Spann (defendant) was found guilty of murder and eight counts of armed robbery. He was sentenced to concurrent terms of 20 to 40 years and 10 to 15 years respectively. He appeals.
The matter is presented to us by briefs submitted by defendant's counsel, the People and by a supplemental brief, pro se. Defendant's brief raises three issues and the pro se brief presents six more issues. It is manifestly impossible to present a detailed statement of the testimony of each witness seriatim and keep this opinion within reasonable length. A summary of the evidence follows.
The People called 12 witnesses in chief. The defense called 11 witnesses. The People also called two witnesses in rebuttal.
The evidence shows Alvin Richter and Harold Suffrin operated a wholesale grocery business on West Randolph Street, in Chicago. They had a number of employees, including Woodoff Littleton. On September 4, 1976, during the afternoon, the owners, Richter and Suffrin, were working in the store. Littleton was present at work. Two men entered the store. One of these persons was approximately 5 feet 6 inches, and the other was taller, about 6 feet. The shorter person was Milton Golden. Golden was a friend of Littleton and of Scotty Smith, who also had worked at the store.
Golden asked Richter for some eggs. At Richter's request Littleton took the two men to see the eggs. The two supposed customers drew guns and proceeded to search and rob Suffrin and other persons present. The robbers compelled them to lie on the floor. All of them were then herded into the cooler. The robbers also compelled Richter to open the safe and remove the money. Two other customers entered the store. They also were robbed and forced into the cooler.
James Wilson entered the store as a customer. He had driven there with Louise Carter, his friend of many years. The car was parked from 15 to 20 feet from the store. Carter stepped out of the car. She heard a shot and saw two men walk out of the market. She saw them at a distance of 10 feet. The taller man had a box under his arm. Carter identified him as the defendant.
Carter entered the market. Somebody said, "They shot him." She saw Wilson in bloody condition. He died in the hospital. There is testimony some of the persons in the cooler heard two shots. Also, the shots were 5 seconds apart, and the witnesses heard men running away.
Each of the contentions in defendant's brief and the pro se brief will be considered in order. Additional facts will be stated as required.
Defendant's brief concedes it is undisputed the shorter robber was Milton Golden. The issue raised is the identification of defendant as the taller person. The People called nine persons who were present. No identification was made by six of these witnesses.
Auguster Johnson entered the store and was pushed into the cooler. He heard someone say twice, "Shoot him." He heard two shots. He did not see either of the malefactors.
Charles McGhee entered the store. He was held up by the shorter robber and never saw the taller man. From the cooler, he heard shots and scuffling.
Alvin Richter, a store owner, testified he told Littleton to show the two men where the eggs were. He was compelled to assume a position on the floor. He was relieved of his money and pushed into the cooler. He went to a police lineup 12 days after the occurrence. He told the police he did not believe he could identify any person but he would "take a guess at it." He picked out men in the second and sixth positions of the lineup. He did not identify the defendant, who was in the fifth position. He testified he knew a man named Timothy Barnes, a brother of Scotty Smith, who in turn had briefly worked at the store and was a friend of Woodoff Littleton.
Harold Suffrin, another store owner, was ordered to the floor, and his money was taken. He was also pushed into the cooler where he heard two shots. He did not identify the defendant.
L.G. Mines entered the store as a customer. He removed his glasses so that his vision was "not very good." He gave money to one of the robbers. He testified this robber was slightly taller than himself. His own height was 6 feet. He surrendered his money and was pushed into the cooler. He heard scuffling and heard a shout, twice, "Shoot him." He attended a lineup during September 1976. He could not identify defendant as the taller robber.
John Thomas entered the store and was held up by a short robber some 5 feet 3 or 4 inches tall. This man quickly took off Thomas' glasses. Thomas was forced to the floor and pushed into the cooler. He testified he could not recognize either of the robbers.
Mark Roach, an investigator for the public defender, testified for defendant that he had a conversation with John Thomas on September 26, 1978. Thomas told him the No. 5 man in the lineup photograph was not tall enough or thin enough to be one of the robbers. Thomas also said the No. 6 man was closer in height and "skinnyness" to the man who actually robbed him.
The defense also called Howard Lisit, a law clerk employed by the public defender. He testified that on August 30, 1977, he heard Thomas say the No. 5 man in the lineup could not have been one of the robbers. He was not as tall or as heavy as the man who robbed him. Thomas said nothing in this conversation concerning his vision. Thomas also said the taller robber was 6 feet and did not use the word, "tall." However, the witness did not recall whether or not Thomas was wearing glasses at the conversation.
Three witnesses called by the People identified defendant as the taller of the robbers. In each instance defendant attempts to attack the veracity of these witnesses.
Louise Carter made a positive in-court identification of defendant. She was standing on the sidewalk when she saw the offenders walk out of the market and pass by her at a distance of 10 feet. This was during broad daylight. She testified she attended a lineup on September 16, 1976. She immediately recognized defendant as the taller person who had left the market. This witness did not inform the police of her recognition of the defendant. Two days after the shooting she had visited the victim at the hospital. He had asked her not to identify the defendant. She did not tell anyone about her recognition of defendant until she spoke to an assistant State's Attorney. She told him she had recognized defendant at the lineup. The assistant State's Attorney showed her a photograph of the defendant which she identified. She identified the photograph in court and testified it showed defendant as having what could be called a beard. In court she described defendant as being 6 feet tall, approximately 170 pounds, without a beard but in need of a shave. She also testified she was afraid to identify defendant. The defendant called an investigator of the Chicago Police Department. He interviewed Louise Carter at the scene of the crime. She testified she was waiting in an automobile when she heard shots. She was upset and nervous when he questioned her.
Woodoff Littleton, a clerk at the store, knew Milton Golden. Littleton's employer, Alvin Richter, directed Littleton to show Golden the eggs. Golden pointed a pistol at him. Shortly thereafter the second robber ordered that all persons be put in the cooler. Littleton identified this person as the defendant. He saw defendant was armed with a silver gun with a white handle. He heard the shouts, "Shoot, man" twice and heard shots. He also testified Scotty Smith, Milton Golden and three others came to call on him during the day after the robbery. Golden asked Littleton if he would identify anyone. Littleton said he wanted nothing to do with it. Littleton identified defendant from a lineup. In court he identified a picture of the lineup and identified defendant as being in the fifth position. A week later, Golden came to Littleton's home, but Littleton denied him entrance. A question of Timothy Barnes came up again here. Littleton described Barnes as about 6 feet tall, 160 pounds. He described defendant as 6 feet 1 inch and weighing 160 pounds. Littleton further testified Scotty Smith told him he could get $200 from the defendant and Golden if he did not testify and identify them.
William Heatherly, an investigator for the public defender, testified he spoke to Littleton on September 11, 1978. Littleton told him he had seen defendant in the neighborhood before September 4, 1976. Warren Thompson, also an investigator for the public defender, corroborated this testimony. He had ...