APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 1, 1982.
Defendants Raymond Burke and David Olbrot were found guilty of attempted murder (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 9-1), aggravated battery (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(b)(1)) and attempted armed robbery (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 18-2), after a jury trial in the circuit court of Cook County. Burke was sentenced to 30 to 90 years for attempted murder, 3 to 10 years for aggravated battery and 6 to 20 years for attempted armed robbery; Olbrot, to terms of 50 to 100 years, 3 to 10 years and 6 to 20 years, respectively.
Defendants contend they were deprived of a fair trial because (1) the court improperly denied a motion to suppress identifications derived from a suggestive procedure; (2) the testimony of an out-of-State police officer violated discovery rules; (3) constitutional rights to cross-examination of witnesses were improperly restricted by the court; (4) the court erred in sentencing defendants for both attempted murder and aggravated battery and the sentences were excessive; (5) the prosecutor made improper comments during closing arguments; and (6) they were not proven guilty beyond a reasonable doubt. Other issues raised individually by the defendants include (1) bias exhibited by the trial court requires reversal; (2) there was no hearing on a motion for severance; (3) refusal to submit a diagram to the jury was error; (4) alleged admissions by Olbrot were improperly allowed by the trial court; (5) a continuance should have been granted in order to depose a former assistant State's Attorney previously assigned to the case; and (6) the jury was not properly instructed.
The record shows: During the early morning hours of October 30, 1976, a robbery of the Musket & Henricksen Drug Store, Skokie, Illinois, was attempted. Edward Thun, an off-duty Chicago police officer, was working part-time as a pharmacist at the time. Thun testified that he was approached by a masked man with a gun who ordered him to get away from the cash register. While moving away, Thun grabbed for the gun and struggled with the armed intruder. The mask, of the Halloween variety, fell off during the struggle. Thun was then shot by a second man, who was positioned at the end of the counter. He did not get a chance to see the face of the first gunman.
Lloyd Hannum, an investigator for the Illinois Secretary of State Police, was in the pharmacy to pick up a prescription. He knew Thun casually as one of the workers in the pharmacy. While waiting for the prescription, Hannum noticed two men dressed up for Halloween come into the pharmacy. One man wore a face mask, the other had a plastic bag over his face. He then saw Thun wrestling with the man who wore the mask. Hannum heard gunshots and ran around the prescription counter, behind which he had been standing. He saw Thun on the floor. He observed the masked man running away without his mask. He also saw the second man in a crouched position, holding a gun. As the two assailants fled the pharmacy, Hannum gave chase and fired his own gun at them. He thought one of his shots wounded one of them. The bag covering the second assailant came off while he was running away and Hannum was able to see his face. Hannum identified him at trial as defendant Olbrot.
The following day, Hannum testified, he went to Area 6 police headquarters of the Chicago Police Department, where he examined the "mug" books. He identified a picture of Olbrot from one book and a picture of Burke from another.
Hannum made two reports. The first was basically a statement in the field report of the investigating Skokie police officer, Adam Maher. This report described the defendants as 5'8" to 5'9" and noted that the mask was ripped off one assailant during the struggle. The second report made by Hannum was to his superiors. It also contained a diagram of the incident, indicating the positions from which he fired his gun. This diagram positioned everything in the pharmacy, including the various counters, cash register and the location of bullet holes caused by the gunfire. It also contained the positions of the people involved in the incident. On cross-examination, Hannum admitted he did not indicate the positions where he saw the assailants in the store. The diagram also did not contain the positions where Hannum identified the assailants after their masks fell off.
Adam Maher testified that he arrived on the scene to find an injured Thun on the floor. He broadcast the description given to him by Hannum that the defendants were 5'8" or 5'9" or smaller. His police report, however, described the assailants only as 5'8" or 5'9". Maher recovered four lead fragments and a rubber mask from the scene.
At the Skokie Police Department Maher observed a green 1974 Pontiac Firebird. The vehicle identification number observed on the dashboard through the windshield was checked with the Secretary of State's Office. The true photostatic copy of the title was read into the record. The car belonged to Olbrot.
Robert Heelan, another Skokie police officer, heard a call over his radio about the shooting at the pharmacy. He proceeded to make a roadblock east of the store at an intersection when he noticed an approaching car. As he walked towards the slowing car, he identified it as a dark green Firebird. He was within four feet of the car when it sped away. He saw one man in the car. The road was lighted by corner street lights, lights from several businesses and the headlights of his car. In court, he identified the man he saw as defendant Burke.
Although Heelan identified Burke before trial from police photographs shown him by Chicago Police Officer Fornelli, he was unable to identify Olbrot. None of the photographs from which identifications were made were produced at trial.
Arthur Von Ahn, a Los Angeles police officer, testified that he had met Olbrot in November 1976 while working as an undercover officer. He had approached Olbrot to sell a stolen television set in a police-run "fencing" operation. They went to a tavern. While there, Von Ahn testified, Olbrot told him of a drugstore robbery in Illinois and said he had shot a policeman while receiving a bullet wound in the back. In January 1977 Von Ahn arrested Olbrot after learning his identity.
Both defendants maintain that the trial court's denial of the motion to suppress suggestive photographic identification was error. At the hearing on the motion to suppress, Burke's divorced wife, Lois, testified that on the evening of October 30, 1976, she let several police officers into her apartment without a search warrant. These officers had their guns drawn. She said they questioned her in the kitchen. No search of the apartment was conducted. She stated, however, that on a later visit her apartment had been ransacked by the police. She noticed that an address and telephone book were missing and that several pictures had been taken. At no time had she been shown a search warrant.
Skokie Police Officer Donald Hennessy testified that he visited Mrs. Burke's apartment on several occasions and that Mrs. Burke gave him three pictures of her former husband. He did not give her a receipt nor did he mention the pictures in his police report. He also stated he was present when Heelan made a photographic identification of Burke from the mug books. He also showed Heelan a picture of Burke ...