APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
L. GILLIS, Judge, presiding.
PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A jury found defendants Darnell Payne and Larry Bailey guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2), armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2) and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1). Payne was sentenced to concurrent terms of 24 years, respectively, for the offenses of armed robbery and armed violence and 7 years for burglary. Bailey was sentenced to concurrent terms of 18 years, respectively, for the offenses of armed robbery and armed violence and 7 years for burglary.
The issues raised on appeal include whether: (1) defendants' arrests were illegal; (2) the lineup and in-court identifications of defendants were tainted by defendants' illegal arrests; (3) a handgun previously ruled inadmissible on defendants' motion to suppress should have been received in evidence; (4) defendants were proven guilty of the charges beyond a reasonable doubt; (5) defendants' convictions for armed violence should be reversed; and (6) burglary is a lesser included offense of armed violence. For the reasons which follow, we affirm in part and reverse in part.
At the pretrial hearing on defendants' motion to suppress, Chicago Police Officer J. Benigno testified that at about 9:30 a.m. on November 8, 1978, he was assigned to investigate the armed robbery that had just occurred at the victim's apartment on North Lamon Avenue in Chicago. There he interviewed, among others, the victim, the building janitor, Claud Pearce, and his son, with respect to the robbery in general and the physical characteristics of the offenders in particular. Officer Benigno spoke briefly with the victim's husband, who had to return to work, but stated that he would return later.
The victim's husband later returned with a companion who told Benigno that he knew who had "shoved [the victim's] door in and brandished the weapons [and] where they were likely to be." The informant gave Benigno his name but requested that he remain anonymous because he knew the offenders and feared for his life. He told Benigno that defendants committed the burglary; that they were in the company of a black female named Brenda who had knocked on the victim's door; and that the offenders would likely be found at an address either on West Quincy or Monroe Streets. The informant gave a physical description of defendants which matched the ones Benigno had received earlier from the witnesses and victim. The informant never stated where he received the information concerning the identity of the burglars. Benigno "got the distinct impression that he knew them [sic] almost as if he heard it from them." He did not check the informant's address, whether he had a record for violations, whether the informant had spoken with the victim's husband about the incident, and never saw the man before or since the day of the burglary.
After his conversation with the informant, Officer Benigno and his partner proceeded to the West Monroe Street address where they found one Brenda Johnson. She told them that defendants Bailey and Payne had asked her to buy some drugs at the victim's apartment. All she had to do was knock on the door and announce her name, which she did. Defendants then pushed her aside and wielded weapons at which time she became frightened and fled. She was not charged with an offense. Benigno was not present when defendants were arrested.
Also during defendants' motion to suppress, Chicago Police Officer B. Munkvold testified that he met with Officer Benigno at approximately 4 p.m. on November 8, 1978. Benigno had information as to the identity of the offenders in the armed robbery and their addresses. Pursuant to this conversation, Officer Munkvold and three other officers, without a warrant, went to the West Quincy Street address where they knocked on defendants' door with their guns drawn. Defendants were placed under arrest and advised of their rights. The officers frisked defendants but found nothing. A search of the house, however, revealed a .32-caliber nickel plated revolver and a .25-caliber blue steel automatic in the vegetable bin inside the refrigerator. No sawed-off shotgun or money was located or recovered there. Defendants were standing in the living room approximately 10 or 12 feet away from the refrigerator in the kitchen where the weapons were found. An open doorway separated the living room from the kitchen.
At the end of the suppression hearing, the trial court found "ample evidence for probable cause to arrest." The court stated that "there was a citizen-witness who gave a knowledgeable version of the crime," corroborated by the victim. "He gave descriptions, gave the name Brenda." The trial court held, however, that the subsequent search of the refrigerator in the kitchen exceeded the area within defendants' immediate control and therefore was illegal and granted defendants' motion to suppress the two weapons.
At trial, the State presented essentially the following evidence. The victim testified that shortly after 9 a.m. on November 8, 1978, she heard a knock on the door. A woman identified herself as "Brenda." The victim unlocked her chain, opened the door a little, and saw an unknown woman and man outside the door. She immediately slammed and locked her door, but two men smashed the door and burst through the panel. The short offender, Bailey, pinned her hands against her back and held a pistol to her temple. The tall offender, Payne, ordered Bailey to "shoot her, man, shoot her," and then asked if she wanted her children to go to her funeral. Bailey forced her into a chair and put "something" over her eyes, either his hand or a blindfold. She was blindfolded for 3 or 4 minutes of the 20 minutes that the offenders were present in her house. Because the black handgun was pointing at her, she could not see much of Payne walking around to different parts of the living room. The offenders stole $75 in cash which was lying on the dresser and $2,000 in insurance proceeds. She got a good look at both offenders. Later the same day, at a police lineup of six men, she identified defendants.
On cross-examination, the victim testified that she first discovered that the $2,000 in insurance proceeds was stolen when her husband arrived home between 11 a.m. and 12 noon and he so advised her. She denied informing police that the tall offender had placed a shotgun to her head. She could clearly see the black revolver held at her head by Bailey, but this contradicted her earlier testimony at the preliminary hearing where she stated she "wasn't looking that well." She was extremely upset over the incident but not at the time of the lineup.
Claud Pearce testified that he was a janitor who lived one floor directly below the victim's apartment. At about 9 a.m. on November 8, 1978, he heard a loud racket like somebody breaking in. Upon investigation he observed that the door to the victim's apartment was "busted" open. Standing just across the hall from that apartment, he saw a tall offender exit and shout to his accomplice, "Hurry up, man let's go." He next observed a short offender emerge, lock the burglary gates closed and "take off" down the hallway. Later that same day he viewed a lineup at the police station at which time he identified defendants as the culprits.
On cross-examination, he testified that 5 to 7 minutes elapsed from the time he heard the noise until the first man emerged from the apartment; it was difficult to gauge the time as he did not have a watch. One offender was 5'6" or "something" and the other was 6'4" or "something." He saw no weapons. Defendants changed their clothes and hair styles between the time he viewed the lineup and the time the lineup was photographed. On redirect examination, Pearce testified that he identified defendants at the lineup by their faces rather than their clothing.
Officer Munkvold's testimony at trial supported his earlier testimony at defendants' suppression motion. The trial court held that the cross-examination of Officer Munkvold by defense counsel implied that no weapons were found in defendants' apartment at the time of their arrest and "opened the door" to the suppressed handguns, which were then admitted into evidence. Munkvold was then permitted to testify on redirect examination that the search of defendants' apartment revealed a blue steel revolver loaded with a clip of .25-caliber bullets. On re-cross-examination, Officer Munkvold testified that neither $2,000 nor a sawed-off shotgun was recovered pursuant to the search.
The victim was recalled and testified that the .25-caliber blue steel revolver was the same weapon that was held at her head by defendant Bailey, based upon its size and color. She "got a good look" at the weapon at the time of the incident. On cross-examination her testimony at the preliminary hearing the day after the incident was read to her where she stated, "I don't know whether it was a .32 or a .45. I wasn't looking that well." She stated that she could have made the first statement, but not the second one.
Other evidence adduced by the State was either cumulative or otherwise of little aid to the decision and need not be set forth.
Defendant Bailey took the stand and denied having robbed the victim. On the morning in question he slept in an apartment on Quincy Street until 11 or 11:30 a.m. Sometime after 12, he purchased some wine and for the first time that day he saw defendant Payne, either in a pool hall or outside. Payne was not carrying a weapon. Bailey described himself as 5'10" tall and weighing 158-160 pounds. He was not aware of a gun located in the refrigerator before the police seized it that afternoon.
The parties stipulated that if Chicago Police Officer R. Ugorek were to testify, he would state that he spoke with the victim at her apartment shortly after the incident, and that she told him a tall man put a shotgun to her head.
The jury found both defendants guilty of armed robbery, armed violence and burglary. Defendants' post-trial motions were denied and defendants were thereafter sentenced as first noted in the opinion.
• 1 Defendants argue that their arrests were made without probable cause and therefore were illegal because they were based on hearsay information. Hearsay from an anonymous informer can be sufficient by itself to support a finding of probable cause (People v. Williams (1963), 27 Ill.2d 542, 190 N.E.2d 303), provided there exists a "substantial basis" to support the credibility of the hearsay declarant (People v. Lindner (1975), 24 Ill. App.3d 995, 997-98, 322 N.E.2d 229). The "substantial basis" standard is bottomed upon a two-pronged test. In the first prong, the State must show the underlying circumstances establishing the reliability or credibility of the anonymous informer and, in the second, the underlying circumstances which establish the reliability of the informer's conclusions that the defendants were engaged in criminal activity (Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509, 1514; People v. Garcia (1981), 94 ...