APPEAL from the Circuit Court of Cook County; the Hon.
THEODORE M. SWAIN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant was charged with armed robbery, armed violence, aggravated battery and attempt murder. After a jury trial, he was found guilty of armed robbery, armed violence and aggravated battery. He was sentenced to 20 years' imprisonment for armed robbery, 7 years for armed violence and 5 years for aggravated battery. The terms were to run concurrently. Defendant now appeals.
On appeal, defendant argues that (1) the admission into evidence of a mug shot constituted reversible error; (2) an element of the charge of armed robbery was improperly proved by the State; (3) the trial court erred in denying defendant's motion for a continuance; and (4) improper comments by the prosecutors during trial and closing argument deprived defendant of a fair trial.
At 5 p.m. on October 9, 1978, George Jennette went to the Showcase Lounge for a drink. Jennette had been in the lounge for approximately 20 minutes when he was joined by Eugene Felder, whom he had known for 10 years. Felder noticed that an acquaintance of his, Lester Schaeffer (defendant), was present in the bar. Felder introduced defendant to Jennette. The three men talked and drank together for about an hour.
After leaving the lounge, the three sat in Jennette's car, a black Buick Electra, for about one-half hour. Felder sat in the driver's seat, Jennette in the passenger's seat and defendant in the back. The men decided to drink more, so Felder left the car to purchase a half-pint of bourbon at a nearby package store.
Different accounts were given of the sequence of events that followed. Defendant testified that Jennette had fallen asleep while the three were in the car together. When Jennette awoke, he asked defendant where Felder had gone. Defendant replied that Felder had gone to buy liquor. Jennette told defendant to forget about Felder and to drive him home. Defendant followed Jennette's instructions. Jennette slept en route and was awakened by defendant when they arrived at Jennette's home on 103d Place in Chicago. After Jennette assured defendant that he would be able to make it into his house alone, defendant left.
Jennette testified that he had been dozing, but that he woke up when defendant asked Felder if he wanted another drink. After Felder got out of the car, defendant moved into the driver's seat, started the engine and pulled away. When Jennette asked whether they were going to wait for Felder, defendant hit him in the head with a hammer. Jennette remembered little of what for an extended period of time. He did not recall being taken to the hospital or being questioned by anyone that night.
Additionally, Jennette testified that he had $150 in his wallet both when he was in the lounge and when the three were sitting in his car. He discovered that his wallet was missing while he was in the hospital. On October 12, three days after he had been attacked, Jennette identified defendant as his assailant.
Barbara Johnson testified that on the night of October 9 at around 9:20 p.m. she was walking to her car on 103d Place near where Jennette lived when she noticed a black Buick Electra parked across the street. A 1978 light green Chevrolet Impala pulled alongside the Buick and the driver of the Impala honked. She saw a black male get out of the Buick and into the Impala. As the interior lights of the Impala went on, she saw that the driver was an older-looking, heavy set black woman with blondish-gray hair pulled back into a bun.
Investigator Robert McGuire testified that Felder informed him that he had been with Jennette and defendant the previous night. McGuire proceeded to defendant's home looking for defendant and the 1978 Impala which had been seen by Miss Johnson the previous night. Parked in front of defendant's home was a 1978 light green Chevrolet Caprice. McGuire checked the registration and found that the vehicle was registered to defendant's wife. McGuire then went to defendant's home. A woman answered the door and informed McGuire that defendant was not home. That woman fit the description of the female driver of the Impala seen by Barbara Johnson.
Defendant was arrested while driving near his home on October 12. The arresting officer asked him for the clothing he had worn on October 9. Defendant sent his wife to retrieve the clothing and when she returned, defendant was being put in the squad car. Mrs. Schaeffer began screaming and trying to pull defendant out of the squad. She asked what the charges were against her husband. The officer replied that defendant was being charged with the aggravated battery and armed robbery of George Jennette. Mrs. Schaeffer then exclaimed "that son of a bitch was drunk and only had eight dollars on him!"
Jennette also testified that prior to trial he had spoken with defendant on the telephone. Defendant reportedly asked Jennette to drop the charges, stating that he did not know what made him act the way he did and that he had never done anything like that before. Jennette told defendant that he would consider defendant's request. When defendant called Jennette back the following week Jennette refused to speak with defendant.
Defendant pleaded not guilty and demanded a jury trial. The jury returned verdicts of guilty on charges of armed robbery, aggravated battery and armed violence. The court sentenced defendant to concurrent terms of 20 years for armed robbery, ...