APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Jose Torres and Miguel Trinidad, the defendants, were charged by indictment with attempt murder and aggravated battery. At a bench trial they were convicted of reckless conduct and were sentenced to 364 days imprisonment.
The defendants raise the following issues on appeal: (1) whether they were convicted of reckless conduct beyond a reasonable doubt; (2) whether the trial court erred in denying a motion to suppress identification testimony; and (3) whether the sentences imposed upon them were excessive.
At trial, Marie Barmes testified that at 7:30 p.m. on October 10, 1976, when she was 12 years old, she was outside of her home at 5200 South Bishop with Ann Marie Zellinski, Brian Zellinski and Mary Skwarczyk. Bishop Street was a southbound one-way street. Marie was standing with Mary on 52d Street near the north side of the house. Ann Marie and Brian were playing on the grass on 52d Street near Bishop. As Marie was writing her name on the side of her house, she observed a yellow Nova automobile on 52d Street coming towards her. She noticed the car for a few seconds and last saw it as it approached the curb at the corner of 52d Street and Bishop. While she continued to write her name, she heard a firecracker-like noise, felt a tingling sensation in her legs and saw blood. Marie was taken to the hospital and a bullet was removed from her right leg.
Marie was unable to identify her assailants and could not state how many people were in the car. It was dark outside at the time of the incident.
Ann Marie Zellinski, who was also 12 years old at the time of the incident, testified that when Marie was shot, she was wrestling with her brother by the Barmes house on the grass outside the sidewalk near the street. Ann Marie was about two to four feet from Bishop Street and two feet from 52d Street. It was dark outside at this time. Ann Marie first noticed a yellow or lime colored Nova travelling eastbound on 52d Street when it was seven feet from her. She knew the car was a Nova because her friends, John Sternquist and Clayton Sims, drove Novas.
Ann Marie further testified that it took approximately two minutes for the car to travel the two blocks and to turn south in front of the Barmes house. For 10 seconds, as the car passed by her, she observed two male Puerto Ricans or Latinos who she identified as the defendants. The car stayed in front of the house for 30 seconds with the passenger side nearest to the curb. While the car was parked, Ann Marie heard a firecracker-like noise. She looked at Marie and then at the car. The passenger in the car had his arms out of the front window holding a black colored gun. Ann Marie identified the gun at trial and said she was two to four feet from the car when she saw the gun. She could not say where each of the defendants were sitting in the front seat of the car and could not say who fired the gun.
Ann Marie testified that, after the shooting, she heard laughter and conversation, in a language she did not understand, coming from the car. After Marie fell to the ground, the car pulled away rapidly from the curb, and travelled south on Bishop and east on 53d Street. About two minutes later, the police arrived.
Ann Marie stated that she could not give the police a description of the assailants' clothing or their facial characteristics. She told the police officers that one of the offenders had curly hair and that the other had an Afro-like hairdo which was pushed back. She denied saying that the offenders might be white males and did not remember telling the officers that the offenders were 19 or 20 years old. Ann Marie stated at trial that the offenders were in their thirties.
Ann Marie further testified that, on the night of the shooting, she was brought to the police station and was told to look into a room where the offenders were present. When she looked into the room she did not see the offenders but she saw two Caucasian men, who she thought were plainclothes police officers, sitting at a desk. She could not see the entire room. Ann Marie did not make any identifications of the defendants until the preliminary hearing. While at the station, she observed a light green Nova with bullet holes in the door and stated that that car was similar to the one the offenders had driven.
On cross-examination, Ann Marie said she first saw the Nova automobile when it was two blocks to the west. She admitted that at the preliminary hearing she testified that she first saw the car when it was in front of the Barmes house. She did not remember stating at the preliminary hearing that the car was parked when she first observed it. Ann Marie also admitted that at the preliminary hearing she said she could see the faces of the car occupants when the car was stopped in front of the house.
David Ryan, a tactical officer for the Chicago Police Department, testified that on October 10, 1976, at about 7:50 p.m., he responded to a radio call that a girl had been shot on the southwest corner of 52d Street and Bishop. Based on what he had been told by the people at the scene, he sent a radio message regarding a gold colored Nova containing two male Puerto Ricans that was southbound from 5200 South Bishop.
Officer Jerry Katauskas of the Chicago Police Department Special Operations Group testified that at about 7:50 p.m., on October 10, 1976, he and his partner were patrolling an area approximately nine blocks from 5200 South Bishop. They heard the radio call and subsequently observed a vehicle fitting the description travelling southbound on Ashland Avenue. After the vehicle pulled to the curb, at 5504 South Ashland Avenue, Officer Katauskas and his partner approached the occupants. Officer Katauskas identified defendant Trinidad as the driver of the car and defendant Torres as the passenger. A gun holster was observed on the center hump of the Nova's floor between the passenger's seat and the driver's seat. Officer Katauskas searched the Nova and discovered a loaded .32-caliber semiautomatic handgun under the dashboard on the extreme left side. The defendants were arrested. Officer Katauskas testified that he believed he and his partner took the defendants and the handgun to the tactical office for processing. He stated that he did not see Ann Marie Zellinski in the tactical office that night. Officer Katauskas also testified that other policemen, including some in plain clothes, were present in the office and that, from where he was sitting, the doorway to the room could not be seen in its entirety.
Officer Louis Velez of the Chicago Police Department testified that at about 8 p.m. on October 10, 1976, he arrived at 55th and Ashland and spoke to Officer Katauskas. He then approached the defendants and, in Spanish, informed them of the reason for their detention. Velez stated that he handcuffed the defendants and placed them in the rear of his vehicle and took them to the police station. While in the police car, defendant Trinidad told Velez that the Nova and handgun belonged to him and that the gun had been test fired earlier that evening in the back of his store.
Officer Joseph Garofalo of the Chicago Police Department testified that on October 10, 1976, he and his partner responded to a call at 5200 South Bishop. He remained at the scene for approximately ten minutes and then toured the area. Later that evening he took Ann Marie Zellinski and her mother to the police station to view the defendants. Ann Marie went to the door of the tactical office, looked into the room and did not recognize anyone. Garofalo testified that he stood next to her and could not see the entire office. Garofalo did not know the identity of the two Caucasian men sitting at the desk in the room.
On cross-examination, Garofalo testified that Ann Marie described the occupants of the Nova as being two male Puerto Ricans and that she did not give a description of the offenders' hair. He admitted that the report he prepared indicated that ...