APPEAL from the Circuit Court of Cook County; the Hon. GARLAND
M. WATT, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 15, 1981.
At the conclusion of a bench trial in the circuit court of Cook County, defendants, Robert Patterson and Keith Payne, were found guilty of armed robbery and possession of a stolen vehicle. Fayella McCarthy, a co-defendant not involved in this appeal, also was found guilty of possession of a stolen vehicle.
On appeal, defendants contend: (1) they were denied a fair hearing on their motion to suppress their lineup identification because the trial court improperly excluded testimony concerning statements made to the complaining witness before the complaining witness viewed the lineup; (2) the trial court erred in denying the motion to suppress the lineup identification. Defendant Patterson additionally contends that his sentence of a 10- to 15-year prison term for armed robbery is excessive.
David Hill, the complaining witness, testified that shortly after midnight on September 30, 1977, while he was driving home, he noticed a woman, whom he did not know, standing on the street corner. Hill identified this woman as co-defendant McCarthy. Hill stopped his car and after exchanging a few words, he agreed to give McCarthy $20 for engaging in sexual intercourse with him. They drove straight down the street for a short distance, and then turned into an alley and parked. After having sexual relations, Hill started the car. McCarthy was in the front seat. A man approached the passenger side of the car. Hill told McCarthy not to open the car door but she did so, stating "They got guns." She left the car. The man with a gun, whom Hill identified as defendant Payne, then entered the car and sat a few inches from Hill and said, "This is a stick-up." At this time, Hill asserted, there was a lighted street light approximately 10 feet away and a lighted dome light inside the car. The inside light in the car automatically turned on when McCarthy opened the car door and it remained lighted throughout the incident. (Later on cross-examination, Hill acknowledged that he could not remember what the defendants were wearing on the night of the incident.)
Defendant Payne then ordered Hill to open his car door, which Hill did. A second man, also armed with a gun, approached Hill's side of the car and told Hill to put his head on the steering wheel. At this point in time, the man, whom Hill identified as defendant Patterson, was standing two to three inches from Hill. After Hill complied with the order, defendant Patterson took $180 from Hill's pocket. Defendant Patterson then told Hill to get out of the car and stand up, and after he did so, Patterson took Hill's wallet and house keys. At this time, defendant Patterson was standing face to face with Hill. Patterson then told Hill to run down the alley. As Hill ran into a gangway, he heard several car doors closing and car wheels spinning. Hill ran back to the alley and saw three people drive away in his car. Hill asserted that approximately 15 minutes had passed from the time he drove into the alley with McCarthy to the time he left the alley. A "few minutes" passed between the time when the men approached him and when he ran through the alley.
The police arrived approximately 10 minutes later, and Hill told them what had happened and what had been taken. Hill asserted he had probably told police that only two men were involved. When the incident occurred, he was married.
Office Lyle May testified that on September 30, 1977, at 12:45 p.m., he investigated a suspicious persons call. When he arrived at the designated address, Mrs. Hill was on the porch. She spoke and then pointed towards a dark blue Chevrolet Chevette being driven down the street. May "flagged down" the car. At trial, May identified the three defendants as the occupants of the car. May also asserted that he recovered Hill's wallet and house keys from defendant McCarthy's purse.
Defendants McCarthy and Payne testified in their defense. McCarthy stated that she had been with Hill during the evening of September 29, 1977, and the early morning hours of September 30, 1977. After engaging in sexual intercourse and receiving a payment of $25, McCarthy obtained Hill's permission to use his car. When she returned to the hotel a few hours later, Hill had left. The next morning, she looked in the glove compartment of the car and found Hill's house keys and wallet. At 11:30 a.m., intending to return the car, McCarthy drove to Hill's home, accompanied by her roommate defendant Payne and defendant Patterson. There was no one home. As the group left, they were arrested.
McCarthy denied that she had told Officer May that she had found Hill's car in a vacant lot and was returning it for a reward. She further stated that while she was at the police station, she overheard Mrs. Hill tell Hill, "They are the two guys * * * if you don't send them to the penitentiary I am going to divorce you for every dime you have got."
Payne asserted that at the time of the alleged armed robbery, he was with friends at a bar. At 2 a.m., he returned to his friend's home and stayed there until 3:45 a.m. The following morning, he and Patterson accompanied McCarthy while she returned a car to a friend. After they drove to the friend's home, McCarthy alone went to the house and then returned to the car. She indicated that her friend was not home and that she wanted to call his place of employment. The police arrived and arrested them.
Officer Brian Rybka also testified as a defense witness. During the early hours, on September 30, 1977, he spoke with Hill about the incident. Hill described his assailants as two dark-complected male Negroes, 20 to 25 years of age, who were five feet eight inches tall and weighed 160 pounds. Rybka stated that since Hill was very upset, he was unable to describe the clothing or physical characteristics of his assailants. Hill also did not tell Rybka what the lighting conditions were during the incident. He also recalled that Hill had been drinking.
Several witnesses were called in rebuttal. The testimony of two witnesses concerned the periods of time Payne worked for Bell and Howell Company. Officer May testified that when he stopped a vehicle belonging to Hill and questioned the three defendants, McCarthy told him she found the car in a vacant lot near her home. She also found a wallet and coat in the car and thought if she returned the car she would receive a reward. Defendants Payne and Patterson agreed with her account. When ...