Appeal from the Circuit Court of Cook County; the Hon. Howard
Miller, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant, James Goodman, was convicted of attempt armed robbery and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 33A-2.) The trial court entered judgment only on the armed violence conviction and sentenced defendant to serve eight years in the Illinois Department of Corrections. Defendant appeals contending that (1) the judgment of conviction for armed violence was improper because it constituted a double enhancement of the predicate felony of attempt armed robbery; (2) admission of evidence of a gun and of another crime deprived defendant of a fair trial; (3) a pretrial photographic identification procedure was unduly suggestive and therefore identification testimony given by witnesses Laura Potter and Debbie DeMaso should have been suppressed; (4) the trial court placed an improper limitation on defense counsel's cross-examination of witness Debbie DeMaso; (5) prosecutorial misconduct deprived defendant of a fair trial; (6) defendant was not proved guilty beyond a reasonable doubt.
For the reasons which follow we reverse defendant's conviction and remand the cause for a new trial.
On October 5, 1979, at approximately 9 p.m. two men entered the Brown's Chicken restaurant located on South Harlem Avenue in Bridgeview, Illinois. One of the men shouted, "Don't push any buttons or call the police." As Laura Potter (Potter), an employee of Brown's Chicken, turned to face the men, one of them placed a brown paper bag on the counter in front of Potter and ordered her to take the money from the cash registers and put it into the bag. Potter "crumpled the bag up" and threw it into the garbage. The offender subsequently identified by Potter as defendant thereupon produced a "dark revolver with white grips," aimed the gun at Potter's stomach and said "we are not kidding." Potter screamed, "My God, someone help me. He wants money." The unarmed offender began pounding on a cash register in an apparent attempt to open it. Since the restaurant was scheduled to close shortly, the cash register was locked; consequently the offender's attempt to open it was futile. The armed man then raised the pistol and fired one shot into the menu signs which hung high on the wall behind the counter. Potter ducked behind the counter and lay on the floor until the offenders left the restaurant.
Bridgeview Police Officer Russell Harvey responded to the call from Brown's. Although several employees allegedly observed the robbery attempt, only Potter spoke to Officer Harvey on the night of the incident. According to Harvey's report, Potter described the armed offender as a "male Mexican, eighteen to nineteen years of age, wearing a red bandanna around his head, dark shoulder-length hair parted down the middle, having a dark moustache, dark complected, five foot-seven inches high, one hundred sixty-five to one hundred seventy pounds, possibly wearing high-heeled shoes." The report indicated that Potter described the unarmed offender as a "male Negro, nineteen to twenty years of age, five foot nine inches high, one seventy to one seventy five, having a close-cropped natural type hairdo, wearing a blue jean jacket." The record shows that defendant is a white male with a fair complexion. He was approximately 20 years old at the time of the robbery attempt. He is five foot seven inches tall and weighs approximately 165 pounds. He has brown hair, a moustache, long sideburns and green eyes.
Approximately three hours after the incident at Brown's, a Hickory Hills police officer observed defendant and two other men sitting in an automobile parked at a gas station located at 95th and Roberts Road in Hickory Hills, Illinois. The gas station was approximately three miles from the Brown's Chicken restaurant. Defendant was in the driver's seat, one Michael Contreras, a Mexican-American, was in the front passenger seat and one Jeffery Roberson, a white male, was in the rear seat. The police officer ordered the three men out of the car. A brief argument ensued between defendant and Contreras, and the officer noticed that Contreras placed "something" under his seat. Upon searching the vehicle the officer found that the object Contreras had placed under the seat was a "blue steel Rome revolver with white grips." The gun contained seven "live bullets" and one spent shell. A search of Contreras' person revealed eight "live bullets" in his pocket. All three men were arrested and charged with the armed robbery of a 7-11 store located in Hickory Hills which had occurred earlier on the night of October 5. In addition, Contreras was charged with unlawful possession of a weapon. Contreras pleaded guilty to the charge of armed robbery. The record does not indicate the disposition of the weapons charge against him. Roberson was tried and convicted of the armed robbery. Defendant was tried and acquitted of this charge.
William Dapkus, a criminal investigator with the Bridgeview Police Department, had been assigned to investigate the attempt armed robbery of the Brown's Chicken restaurant. Upon hearing of the arrest of the three men in Hickory Hills, Dapkus arranged two physical lineups in which Contreras and Roberson were viewed by Potter. She was unable to identify either of them as having participated in the robbery attempt at Brown's.
On November 1, 1979, Officer Dapkus prepared an array of six photographs to be used in an identification procedure. Included in the array was a copy of the "mug shot" of defendant which had been taken by the Hickory Hills Police Department following defendant's arrest on October 6. The photograph depicting defendant was covered with a dull green film. The other five photographs in the array depicted five white males similar in height, build and age to defendant.
On November 1 Dapkus presented the array to Potter. She identified the photograph of defendant as depicting the armed offender in the attempted robbery of the Brown's Chicken restaurant. Later that same day Dapkus presented the array to Debbie DeMaso, another employee of Brown's Chicken who allegedly witnessed the attempted armed robbery of Brown's. DeMaso also identified the photograph of defendant as depicting the armed offender. Defendant was subsequently arrested and charged with the attempt armed robbery of the Brown's Chicken restaurant. Approximately two weeks after the witnesses' photo identification, at defendant's bond hearing, Potter, DeMaso and Dapkus sat in the spectator's section of the courtroom and observed the defendant as he was brought before the bench by the sheriff's deputies. On March 11, 1981, the day before trial in the instant case, Potter first identified a photograph of Contreras as depicting the unarmed offender who had participated in the attempted armed robbery of Brown's.
At trial in the instant case Potter again identified defendant as the armed individual who had attempted to rob Brown's. She testified that at the time of the attempt the restaurant was well lighted and that she stood directly in front of defendant during the incident. Potter estimated the attempt lasted approximately five minutes. On cross-examination Potter acknowledged that on the night of the incident she had described the armed individual to Officer Harvey as a "male Mexican" as his report indicated. At trial Potter added that the time of the attempt defendant was wearing white pants and that he had "collar or longer than collar length hair." Potter identified as the gun used in the armed robbery attempt the gun that had been removed from the car in which defendant had been sitting in the Hickory Hills gas station.
Vicki Spoon, another employee of Brown's Chicken, testified that she was in the front of the restaurant at the time of the robbery attempt. She also identified the defendant at trial as the armed offender who had participated in the robbery attempt. She stated that she was approximately four feet from the defendant during the incident and that she ran into the back room of the restaurant after defendant fired the gun. She also stated that the gun admitted into evidence resembled the gun used by defendant. Ms. Spoon conceded that she did not give Officer Harvey a description of the offenders on the night of the incident. Nor did she participate in any pretrial identification procedure in connection with the instant case.
Debbie DeMaso testified in rebuttal for the State. She was "working the front counter" at Brown's on the night in question. She identified the defendant as the armed offender, and she stated that the gun admitted into evidence looked like the gun used in the armed robbery attempt.
Officer Harvey testified that Potter seemed "quite shaken" as he interviewed her shortly after the incident. Although his report indicated that Potter had described defendant as a male Mexican, Harvey testified that Potter had merely said that defendant "looked Mexican."
Defendant denied that he had participated in the attempt armed robbery of the Brown's Chicken. He claimed that on October 5, 1979, he had attended a birthday party in Palos Hills, Illinois, from approximately 8 p.m. until shortly after midnight. Contreras and Roberson were also at this party. Defendant explained that he left the party with Contreras and Roberson at approximately 12:15 a.m. to "get some beer" and that they were arrested in the gas station shortly thereafter. The gas station was located approximately one mile from the site of the party.
Defendant's sister, Sharon Goodman, and her boyfriend, Michael Principe, substantially corroborated defendant's alibi.
Defendant first contends that the judgment entered on his conviction for armed violence was improper because the armed violence conviction constituted a double enhancement of the predicate felony of attempt armed robbery. Defendant argues that a single element — presence of a "deadly" weapon — served initially to enhance the charge of attempt robbery to the predicate felony of attempt armed robbery and that the State then used the same element to enhance again the charge of attempt armed robbery to the charge of armed violence in violation of People v. Haron (1981), 85 Ill.2d 261, 422 N.E.2d 627.
Initially we note that although attempt offenses are not classified as either misdemeanors or felonies (People ex rel. Carey v. Scotillo (1981), 84 Ill.2d 170, 417 N.E.2d 1356), where an attempt offense is punishable as a felony such an offense may be treated as a felony for purposes of the armed violence statute. People v. Gibson (1981), 99 Ill. App.3d 1068, 425 N.E.2d 1208; People v. Kavinsky (1981), 98 Ill. App.3d 579, 424 N.E.2d 340.
In Haron the defendant was charged with armed violence where the predicate offense was aggravated battery based on the use of a deadly weapon. In reviewing the language of the armed violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), the court concluded that the General Assembly did not intend that the presence of a weapon should serve both to enhance a misdemeanor to a felony and to support a charge of armed violence. The court stated:
"In our opinion the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon." (People v. Haron (1981), 85 Ill.2d 261, 278.)
Since, by virtue of the presence of a weapon, the offense of battery (a misdemeanor) had been enhanced to the offense of aggravated battery (a felony) and enhanced again to the offense of armed violence (a Class X felony), the court dismissed the armed violence charge. Our reading of Haron suggests that if the predicate offense is a felony by statutory definition when committed without possession or use of a dangerous weapon, such an offense may support the charge of armed violence.
• 1 In the instant case we believe the judgment entered on defendant's armed violence conviction, predicated on the offense of attempt armed robbery, was consistent with the reasoning of Haron. Here, unlike Haron, the offense of attempt robbery, even if committed without the use of a weapon, is punishable as a Class 3 felony. Since the armed violence statute provides that a person commits armed violence "when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law" (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), it follows that an offender who utilizes a handgun in the course of his attempt to commit robbery is subject to the provisions of the armed violence statute. Accordingly we conclude that defendant's conviction for armed violence based on the predicate felony of attempt armed robbery did not constitute an impermissible double enhancement in violation of Haron.
Defendant next contends that the trial court erred in admitting into evidence a handgun which had been seized by the police from Michael Contreras. Defendant argues that since the gun had been found in the car under the seat in which Contreras had been sitting, "the link between the gun and defendant was tenuous * * *."
• 2 It is well established that a weapon may be admitted in evidence where there is proof connecting it to the defendant and the crime, and it is not necessary to establish that the particular weapon in question was the one which was actually used. If it is shown that defendant, when arrested, possessed a weapon which could have been used in the commission of the crime charged, it may be admitted in evidence. (People v. Johnson (1966), 35 Ill.2d 516, 221 N.E.2d 497; People v. Williams (1981), 96 Ill. App.3d 8, 420 N.E.2d 710.) Here there was sufficient proof to connect the gun to both the defendant and the crime. The gun had been recovered from the same vehicle in which defendant was sitting in the gas station in Hickory Hills. Potter identified the gun admitted into evidence as the one defendant had used to commit the crime. Spoon and DeMaso identified the gun presented at trial as resembling the one used by defendant. Finally, when the gun was recovered, it contained one spent shell, and the record shows that one shot was fired during the robbery attempt at Brown's Chicken. In our opinion these facts establish a sufficient nexus between the gun, the defendant and the crime so as to render the gun probative and admissible. People v. Daniels (1976), 35 Ill. App.3d 791, 342 N.E.2d 809.
Defendant next contends that he is entitled to a new trial because the trial court allegedly erred in permitting the State to introduce evidence of another crime for which defendant had been charged and ...