APPEAL from the Circuit Court of Cook County; the Hon. PAUL A.
O'MALLEY, Judge, presiding.
PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant, Willie Holmes, was found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2). Defendant received a sentence of 10 years imprisonment.
On appeal, defendant presents the following issues for review: (1) whether he was proved guilty of armed robbery beyond a reasonable doubt; (2) whether the trial court properly denied him leave to recall a witness; (3) whether there was probable cause for his arrest; and (4) whether his identification by an eyewitness should have been excluded because of an unnecessarily suggestive showup.
Prior to trial, defendant filed a motion to quash arrest and suppress identification. At the hearing on this motion, defendant Holmes testified that on March 29, 1979, at approximately 9:15 p.m., he was in a tavern, known as McGee's, at 70th Street and Halsted, in Chicago. The police came into the tavern and asked him and Otis McGuire to come outside with them. Once outside, the police handcuffed him and drove him to 67th and Halsted. A lady came out of the tavern at that address, pointed at him, and went back into the tavern. Holmes and McGuire were both handcuffed and standing together when the lady identified him. Thereafter, he was taken to the police station. The witness stated that the police never read him his Miranda rights.
Redic Richardson, Sr., testified that he is the owner of the Tchula Tavern, located at 6745 South Halsted. On January 7, 1979, his tavern was robbed. Redic, Sr., was not present at the time of the robbery, but his son had been a witness. On March 29, 1979, at about 9:15 p.m., Redic, Sr., followed a young man into a tavern at 7000 South Halsted. Redic's son had pointed out the young man as the one who committed the January 7 robbery. The police arrived and defendant was later arrested.
At the hearing, Redic Richardson, Jr., testified that he is 10 years old. On March 29, 1979, he was outside in front of his father's tavern when he saw a man whom he recognized as the same man who had robbed the tavern on January 7. He immediately went inside and informed his father. After the January robbery, Redic, Jr., had given a description of the robber and his accomplice. He stated that the robber was wearing a gray shirt, dark pants, a trench coat, and a skull cap. His accomplice, the taller of the two men, had on a jacket; there were holes in his pants but he wore another pair of dark pants underneath; he wore sunglasses, and his hat was tilted. Elizabeth Spells, the barmaid at the Tchula Tavern, had told him that the robber had a scar on the side of his face. On March 29, Redic, Jr., recognized this man, saw the scar on his face, and identified him as the defendant.
After the hearing, the trial judge denied the motion to quash the arrest and decided to delay the ruling on the motion to suppress identification until trial. It was stipulated that the testimony of Redic, Sr., and Redic, Jr., at trial would be the same as their testimony at the hearing.
At trial, Elizabeth Jean Spells testified that on January 7, 1979, between the hours of 9 and 10 p.m., she was working as a barmaid at the Tchula Tavern. Two men entered the tavern whom she had never seen before. When they walked in, she was playing a game of cards with one of the patrons while Redic, Jr., watched. She walked to the front of the tavern to take their order. The smaller of the two men went to the back end of the bar where the customers were sitting, while the heavier man, whom she identified as defendant, went to the carry-out counter in the front of the bar. Defendant ordered a quart of "Richard's," a brand of wine, and she turned to reach for the bottle on the shelf. When she turned again, she saw that he had a gun in his hand. He told her not to scream or drop the bottle, and to give him the money from the cash register. Spells was able to see his face and the upper part of his body. She took $103 from the cash register and handed it to defendant who then walked out of the tavern. As Spells walked back to the far end of the bar, the man who had entered with defendant came up to her and said, "Don't move. If you do, you [are] dead." He had something that appeared to be a gun. She stated that the man who robbed the tavern wore dark clothing, a shirt, a trench coat, and a skull cap. He had a long scar on one side of his face. Although she thought the scar was on the right side of his face, she later realized that, in facing the offender, the scar was to her right and on the left side of his face. She could not recall his weight but stated that he was heavy and approximately 5 feet 6 inches or 5 feet 8 inches in height. Spells further testified that on March 29, 1979, she saw defendant — the same man who had robbed the tavern — and he was wearing the same clothing that he had worn the night of the robbery.
On cross-examination, for the limited purpose of identification, Spells stated that she did not get a good look at the second man, but the man who robbed the tavern had a long scar on the side of his face which was noticeable. The skull cap covered his head. On the evening of March 29, 1979, Redic, Sr., asked her to go to the police car to make an identification.
Direct examination resumed and Spells made an in-court identification of defendant. On March 29 when the police took her outside to make an identification, there were two persons in the car; she identified defendant only.
On recross, Spells specifically indicated that the scar on defendant's face began at his left temple and ended at about his mouth. On January 7, defendant did not have a full beard. After Spells' testimony, the State rested its case in chief.
Defendant's motion for a directed finding was denied. The court ruled on defendant's motion to suppress identification and the motion was denied.
Defendant's first witness, James McKnight, testified that he was a frequent patron at the Tchula Tavern and was present on the evening of January 7, 1979. Another customer and Spells were engaged in a game of cards and he sat nearby to watch the game. He saw the two individuals enter the tavern. He saw Spells leave the card game and speak to one of the individuals who remained at the front counter. The witness could not describe the physical appearance of that individual nor could he recall the approximate height or weight of the person. McKnight stated that the lighting in the bar that evening was dim, describing it as pink iridescent, and adding that before January 7, the lighting was another color. He never saw Spells go to the cash register. The two individuals were in the tavern for 2 or 3 minutes; they left quietly and quickly. Thereafter, Spells said the tavern ...