Appeal from the Circuit Court of Cook County; the Hon.
Sylvester C. Close, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information with attempted murder, armed robbery, burglary, home invasion, aggravated battery and armed violence. The armed violence count was not submitted to the jury. Defendant was found guilty of home invasion, aggravated battery and armed robbery. He was not found guilty of attempted murder and burglary. Defendant was sentenced 28 years for armed robbery, 28 years for home invasion and 7 years for aggravated battery to run concurrently. Defendant appeals. We reverse the conviction for home invasion; we reverse and remand the convictions for armed robbery and for aggravated battery.
Although defendant raises nine issues on appeal, our disposition of this case requires that we address only four of them: (1) whether defendant was proved guilty beyond a reasonable doubt due to the allegedly incredible testimony of the complainant, the only eyewitness; (2) whether defendant was proved guilty beyond a reasonable doubt of home invasion where the complainant testified he had given him permission to enter his room; (3) whether the arresting officer's testimony as to defendant's assault of another individual deprived defendant of a fair trial; and (4) whether the prosecutor's remarks during closing argument were improper, depriving defendant of a fair trial.
An abbreviated statement of facts follows. Additional facts necessary to the resolution of the issues addressed will be given as required.
The following evidence was adduced at trial. At approximately 4 a.m. on November 3, 1979, the victim was reading a newspaper in his room at the YMCA hotel on 37th and Wabash. A man knocked on his door, identified himself as Scott, and asked to be let into the room. The victim knew Scott who was the desk clerk at the "Y" where he lived. He unchained the door and let in two men. Once inside the room, one of the men asked to see the victim's gun. The victim refused. One of the assailants struck him across his head, fingers and wrists with a nightstick and the gun fell to the floor. The victim fell and struck his head on a dresser drawer. The two assailants took the gun, a flashlight and $32 and fled. The victim went downstairs to call the police but two policemen were already entering the building. The victim identified Scott, the desk clerk and the defendant here, as one of the men who attacked him. Defendant denied being in the victim's room. Defendant pulled out a baseball bat and stated that was the only club he had in his possession. The police arrested defendant and one of them went behind the desk and found a nightstick propped up against the counter. The victim testified that this nightstick was just like the one used to beat him. Traces of human blood were found on the nightstick.
The arresting officer also testified that he understood the victim to say that $2 had been taken by the assailants. The victim, however, denied telling any police officer that $2 had been taken. After the attack the victim was found to be suffering from lacerations of the skull, swollen hands, and fractures in the forearm bones.
Defendant's wife was called to testify on defendant's behalf. She stated that on November 3, 1979, her husband was working two jobs, one as a desk clerk at the YMCA and another at a gas station. He worked at the "Y" from midnight to 8 a.m. On the morning of November 3, 1979, she called her husband at approximately 2:45 a.m. and talked with him for over an hour. At approximately 4:20 or 4:25 a.m. another call came over the switchboard at the "Y" and her husband put her on hold for approximately five minutes. After concluding the telephone conversation Mrs. Scott dressed and went to the "Y." Following Mrs. Scott's testimony the defense rested.
The jury found defendant guilty of home invasion, aggravated battery and armed robbery and not guilty of attempted murder and burglary. Defendant appeals.
Defendant asserts that he was not proved guilty beyond a reasonable doubt because the complainant was not in full possession of his faculties and because his testimony was based on assumptions, contained inconsistencies, and was contrary to human experience.
• 1 A court of review will not set aside a jury's verdict unless the evidence presented at trial is so improbable as to raise a reasonable doubt of guilt. (People v. Zuniga (1973), 53 Ill.2d 550, 293 N.E.2d 595.) However, the burden is always upon the State to prove defendant guilty beyond a reasonable doubt and a judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of defendant's guilt. (People v. Dawson (1961), 22 Ill.2d 260, 174 N.E.2d 817.) Where the State's evidence is improbable, unconvincing and contrary to human experience, a reviewing court will not hesitate to reverse it. Dawson.
• 2, 3 Defendant cites no authority supporting his argument that his conviction should be reversed because the complainant was senile or not in possession of his faculties. No challenge to the complainant's competency to testify was made at trial and no separate hearing was held on that issue. It is well established that if a witness has the capacity to observe, recollect and communicate, he is competent (People v. Nash (1966), 36 Ill.2d 275, 222 N.E.2d 473, cert. denied (1967), 389 U.S. 906, 19 L.Ed.2d 223, 88 S.Ct. 222), and a feebleminded person possessing these capabilities may be competent to testify. (People v. O'Neal (1977), 50 Ill. App.3d 900, 365 N.E.2d 1333.) The record indicates that although the complainant's testimony was at times unresponsive and confusing in response to questions asked of him, he had the capacity to observe, recollect and communicate. Thus, he was competent to testify and any inconsistencies in his testimony merely affected his credibility and the weight to be accorded his testimony. People v. Lindsay (1978), 67 Ill. App.3d 638, 384 N.E.2d 793.
• 4 Defendant also relies heavily on Dawson in support of his argument that complainant's version of the events was improbable and contrary to human experience. Dawson is distinguishable in part because the defendant there was a police officer whose good character was attested to at trial and who testified in his own defense that he had broken up a crap game in which one of the complaining witnesses had been involved and that he had never taken any of that witness' money. Defendant there had also had "words" previous to the alleged incident with the other complaining witness. None of the other persons present at the time of the alleged incident testified at trial. The supreme court found it unbelievable that this police officer would rob people who knew him, threaten to call police when he himself was a policeman, then return most of the money and then simply go back to the hotel bar from where he came. Dawson cites other examples of such improbable testimony: testimony of the complaining witness that the five men who took his wallet at gunpoint voluntarily accompanied the witness to his home upon the witness' promise to get them more money (People v. Coulson (1958), 13 Ill.2d 290, 149 N.E.2d 96), testimony of the complaining witness that the defendant after robbing her and finding she had no money gave her his name and telephone number (People v. Buchholz (1936), 363 Ill. 270, 2 N.E.2d 80), and testimony of the complainant that after a multiple rape attack she and the defendants went to several taverns together (People v. O'Connor (1952), 412 Ill. 304, 106 N.E.2d 176). However, the improbability of the complainant's testimony in these cases implicitly casts doubt upon whether a crime was committed at all as opposed to who committed it. It is not in dispute that the complainant in the instant case was beaten by someone and robbed. The material fact in question here is who did it. The pivotal factor in evaluating identification testimony is whether the witness had an opportunity to view the offender under adequate conditions. (People v. Reed (1980), 84 Ill. App.3d 1030, 405 N.E.2d 1065.) In the instant case complainant had an unobstructed view of defendant's unmasked face. Further, complainant had known defendant for six months prior to the incident. A positive identification by a single witness with ample opportunity to observe is sufficient to support a conviction. People v. Clarke (1971), 50 Ill.2d 104, 277 N.E.2d 866.
Defendant next contends he was not proved guilty beyond a reasonable doubt of home invasion because complainant testified that he gave defendant permission to enter his room at the YMCA. The offense of home invasion (Ill. Rev. ...