Appeal from the Circuit Court of Cook County; the Hon. Robert
L. Sklodowski, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was acquitted of murder but found guilty of armed violence based on the felony of murder and was sentenced to 15 years imprisonment. On appeal, he contends that (1) his conviction for armed violence cannot stand where he was acquitted of the predicate felony of murder; (2) the prosecutor's improper and prejudicial arguments and trial behavior violated his right to a fair trial; (3) he was not proved guilty beyond a reasonable doubt; (4) the denial of his pretrial motion to suppress the identification testimony of several witnesses was error; and (5) his cross-examination of one of the State's witnesses was improperly restricted.
Defendant moved to suppress the identification testimony of Edwin Padua, Noel Castro, James Malugin and Jose Morales, and at the hearing on the motion Noel Castro testified that all four of them were seated together in the back of a police squad car on November 12, 1979, when they were shown an array of 20 photographs depicting multiple shots of six or seven different people; that the four potential witnesses passed the pictures among themselves and discussed them; that he heard two individuals discussing one of the men portrayed but did not know who they were talking about; that he identified one of the pictures as that of the man he saw shoot Alfredo Torres on November 8; and that later that same day he was taken to the police station to view a lineup and again identified the man he saw on November 8. Castro admitted that the police did not tell him who to pick out at the photodisplay or at the lineup.
Investigator Wieclawek testified that he picked up Padua, Castro, Malugin and Morales on the morning of November 12, 1979, for the purpose of showing them photographs; that each individual was shown the group of photographs separately and independently identified defendant as one of the men involved in the November 8 shooting; that neither he nor his partner told any of the individuals who to pick out; and that later these same persons separately viewed a lineup and again identified defendant. He later admitted that Castro viewed the photographs in the presence of the other three individuals, but that the others did not say anything while Castro viewed the pictures and identified defendant; and that he (Wieclawek) knew that defendant was in custody at the time the photograph display took place. The court found that "any possible suggestiveness or impropriety in the photographic identification procedures could not have resulted in irreparable misidentification" and denied defendant's motion.
At trial, Hilea Torres testified that on the evening of November 8, 1979, her son Alfredo Torres left their home to move his car which was parked on the street; that after he left, she heard shots and ran outside where she saw Alfredo lying wounded in the street; and that he subsequently died in a hospital.
Jose Morales testified that he was visiting friends at the Kents street gang hangout two houses from the Torres home on the night of the shooting; that he saw Torres emerge from his house and walk around the front of his car; that although it was dark, the street was illuminated and he was able to see two men run up to Torres and begin shooting; that when the shooting started, he (Morales) crouched behind a car but was able to see what happened through the car's windshield; that the first man, whom he could not identify, shot Torres several times and then fled; that the second man began shooting after the first one left, then turned toward him (Morales), so that he was able to see the man's face; that he was shown pictures the day after the shooting and identified the man he had seen; that he was taken to a lineup two days later and again made an identification; and that defendant was the man he saw at the scene and subsequently identified. Morales further testified that he was four houses away from where the shooting occurred; that the entire incident took less than a minute, during which time he was only able to see defendant's profile for 3 to 4 seconds; and that he could not describe defendant's individual features.
James Malugin testified that on November 8, 1979, he was on the street near the Kents gang clubhouse; that the street was illuminated by new, orange street lights; that he saw Alfredo Torres get out of his car and begin to walk around it; that at that moment, two men emerged from a gangway across the street and ran toward Torres, shooting at him; that he (Malugin) crouched down when the shooting started but was still able to observe what happened; that defendant was one of the men who shot Torres; that he had seen defendant on several occasions before the shooting and knew him to be a member of the Disciples street gang, rivals of the Kents, to which he (Malugin) belonged; and that he had also identified defendant from a photo display and in a lineup. Malugin further testified that he was four or five houses away when the shooting occurred; and that the two men did not shoot at the same time, but one after the other.
Officer Gonzalez testified for the defense that upon arriving at the scene, he picked up a Mr. Ramero and drove him to a nearby tavern where he (Gonzalez) took Sammy Lopez and Adam Lazano into custody in connection with the Torres shooting. Gonzalez admitted that he did not know whether charges were ever approved against Lopez and Lazano.
Assistant State's Attorney James Linn testified in rebuttal that no murder charges were ever brought against Lopez and Lazano because there was insufficient evidence to connect them with the homicide.
We first consider defendant's contention that his conviction for armed violence cannot stand where he was acquitted of the predicate felony of murder. Defendant argues that since he was acquitted of one of the elements of armed violence, the predicate felony, the State has not met its burden of proving all elements of the offense beyond a reasonable doubt. Therefore, he reasons, his armed violence conviction must be reversed.
The State, in its brief and argument here, treats this issue as a question of inconsistent verdicts and argues that Illinois law requires neither logical nor legal consistency in jury verdicts. In particular, the State relies on our decision in People v. Johnson (1980), 87 Ill. App.3d 306, 409 N.E.2d 48, where defendant contended that his aggravated battery conviction could not stand because it was legally inconsistent with his acquittal for armed violence. We found that the verdicts were not legally inconsistent, and we went on to note that, even assuming legal inconsistency, Illinois did not require consistency, either legal or logical, in jury verdicts.
We believe, however, that Johnson is distinguishable because in the case before us defendant was acquitted of murder which, being the predicate felony, was an essential element required to be proved by the State in order to sustain a conviction. (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2; People v. Green (1980), 83 Ill. App.3d 982, 404 N.E.2d 930.) Neither party has cited, nor has our own research discovered, any Illinois case in which a jury has returned a verdict of guilty of armed violence while at the same time acquitting the defendant of the underlying felony. However, this issue has arisen in another jurisdiction.
In Redondo v. State (Fla. 1980), 403 So.2d 954, a defendant was charged with aggravated battery and the unlawful possession of a firearm while engaged in the commission of a felony. A jury found that defendant guilty of the firearm offense, but effectively acquitted him of the aggravated battery charge by returning a verdict of guilty on the lesser included offense of simple battery, a misdemeanor. The trial court's arrest of judgment of conviction on the possession of a firearm had been reversed by the appellate court on the ground that juries ...