Appeal from the Circuit Court of Cook County; the Hon. James
M. Schrier, Judge, presiding.
PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 18, 1982.
Defendant, Peter J. Lipa, along with four other men, was charged with armed robbery of an Illinois tollway truck. Defendant pleaded not guilty and, pursuant to a motion, his case was severed from the others. Following a bench trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2) and sentenced to the Illinois State Penitentiary for not less than 7 years nor more than 14 years. He appeals from that conviction.
Defendant raises the following issues on review: (1) whether the trial judge erred in failing to recuse himself under Illinois Supreme Court Rule 67(c); (2) whether there was sufficient evidence to prove defendant guilty of armed robbery; and (3) whether defendant's sentence of 7 to 14 years was excessive.
The four other men involved in the crime were Richard Jeskewitz, Richard Fitzgerald, Ozeal Lee and Jonathan Lipa, defendant's brother (since deceased). Fitzgerald, Jeskewitz and Lee pleaded guilty to the lesser charge of robbery. Fitzgerald and Jeskewitz testified on behalf of the State; Lee did not testify at defendant's trial.
The following testimony was adduced at trial. At about 1 p.m. on April 22, 1977, an Illinois Tollway Authority truck was traveling west on the Tri-State tollway near the Lee Street exit. The driver of the truck, Darko Kucan, testified that he saw a light-colored car with flashing headlights in his rear view mirror. He thought the car to be an unmarked police car so he pulled over and stopped. The car stopped about 25 feet behind his truck. Kucan got out of the truck, leaving the keys in the ignition and the engine running, and walked back to the car. There were two men in the car; the driver was black and the passenger was white. The driver motioned Kucan to go the passenger's side. He went to the passenger's side of the car and got into the back seat. Kucan asked, "What's the matter?" He then reached into his back pocket for his wallet and when he looked up there was a shotgun pointed at him. Kucan was then pushed down on the floor, covered with a blanket and told to stay down. The men drove off with him. A ski mask was pulled over Kucan's head and his hands were tied behind his back before he was removed from the car. He was subsequently put into the back of the tollway truck where he was discovered by the Chicago police the following morning. Kucan was questioned by the Chicago police and the Illinois State police at two or more locations for several hours after he was discovered. He gave several statements to the police.
Kucan testified that when initially questioned by Chicago police, he did not tell them that the men in the car had had a shotgun. He claims to have been afraid to tell the police about the gun initially but that it was the only detail omitted from his initial statements to police.
Richard Fitzgerald testified for the prosecution that several months prior to the robbery he and defendant discussed how easy it would be to rob the tollway truck. Fitzgerald and defendant observed the tollway truck picking up receipts on several occasions. Subsequently, defendant located a car that resembled an unmarked State police car. Another accomplice, Richard Jeskewitz, stole the car and modified it. Flashing lights, a spotlight and a public address system were installed. Jeskewitz also rented a truck and a warehouse to be used in the robbery.
On the day of the robbery, Ozeal Lee drove the phony police car with defendant as a passenger. Fitzgerald, Jeskewitz and Jonathan Lipa rode in the rented truck. After defendant and Lee pulled over the tollway truck and Kucan got out, Jeskewitz was able to drive the tollway truck to the rented warehouse.
The rented truck was used to transport the cash from the tollway truck to defendant's family's farm in Wisconsin. Prior to defendant's trial, metal cannisters of the type used by the tollway authority to transport money were found in a pond near the Wisconsin farm. The exact amount of money stolen was not ascertained. It appears that Ozeal Lee and Richard Jeskewitz each received $5,000. It is unclear how much the other participants received.
Prior to trial, there was discussion among the trial judge, defendant's attorney and the prosecutor regarding recusal of the trial judge. The trial judge had been an assistant State's Attorney in charge of the felony trial division at the time of defendant's indictment. In his prior capacity as an assistant State's Attorney, the judge had approved a subpoena for telephone records in connection with the grand jury investigation surrounding the robbery for which defendant is charged. The judge did not actively participate in the case in any other way when he was an assistant State's Attorney. The judge stated that he did not remember approving the subpoena. The judge and the prosecutor, as well as defendant and his attorney, agreed that there was no conflict. Following that discussion, the judge decided that he would not recuse himself.
Defendant's first contention is that the trial judge erred by failing to recuse himself. Defendant argues that under the circumstances in this case recusal is mandatory under Illinois Supreme Court Rule 67(c) (73 Ill.2d R. 67(c)), which provides as follows:
"A judge shall not participate in any case in which he has previously acted as counsel. He cannot rid himself of this responsibility by consent ...