Appeal from the Circuit Court of Kendall County; the Hon.
Wilson D. Burnell, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
The defendant, William J. Foley, was charged by information with armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). After a jury trial, he was convicted of robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1(a)) and was sentenced to a seven-year term of imprisonment. The defendant appeals, contending that the trial court committed reversible error by restricting (1) his cross-examination of a crucial State's witness and (2) his questioning of a defense witness.
This case presents the question of whether or not a State's witness, who was an accomplice to the robbery defendant was charged with, can be cross-examined as to whether he had received probation for the robbery. Here, the trial court held that the question of probation could not be explored in the absence of evidence that an agreement had been reached that the witness was going to receive probation for his testimony in this case.
At trial, Keith Kramer testified that he was working at the Pride gas station in Oswego, Illinois, on the evening of May 1, 1980. At about 9:15 p.m. Kramer was counting coins in the cash register when an individual entered the station and said, "Give me the money." Kramer, without looking, told the individual to wait until he was done counting. Then the individual restated his demand and added, "This is a stick-up." Kramer looked up and saw that the robber was armed. He observed the offender from a distance of two feet for approximately 15 to 20 seconds. Kramer indicated that the robber was approximately five feet 10 inches or five feet 11 inches tall, was wearing blue jeans, tennis shoes, a white tee shirt, and a nylon stocking which fully covered his face. Kramer also testified that the perpetrator had shoulder-length, dishwater-blond hair and no facial hair except a mustache. He indicated at trial that as the robber ran from the scene of the crime he limped, favoring his right leg. Kramer had earlier stated, at a preliminary hearing, that the offender appeared to be favoring his left leg.
Kramer was shown two groups of photographs of possible suspects. He was unable to identify anyone from the first group of six photographs. This group did not include a picture of the defendant. When the sheriff's office showed Kramer a second group of photos, he positively identified defendant as the offender.
Four other individuals were standing at the self-service islands of the gas station at the time of the robbery. They were shown the same photographic array as was Kramer, but they did not identify the defendant from the photos.
Kenneth Massingill testified for the State that he and defendant planned to rob the gas station in question. They had purchased a toy gun and a pair of nylon stockings for the purpose. Massingill then drove to the parking lot from which he could see the Pride gas station.
Massingill remained in the automobile while defendant Foley walked over to the gas station. He added that he did not watch defendant during the time of the robbery. Massingill added that he had previously been convicted of felonies in both Kendall and Du Page counties. He indicated that no promises had been made by the State's Attorney's office nor by the sheriff's office in exchange for his testimony.
On cross-examination Massingill revealed that he had been locked out of his room at the Aurora YMCA for nonpayment, and he had moved in to defendant Foley's apartment. He testified that he had been charged with armed robbery of the Pride gas station, but had pleaded guilty to robbery. Cross-examination of Massingill regarding the disposition of the robbery charge was not allowed. In sustaining the State's objections, the trial court stated that there would have to be a showing of an agreement or promise with the State's Attorney prior to exploring Massingill's probationary status. During closing argument, the trial court again precluded defense counsel from commenting on the fact that Massingill had been placed on probation for the May 1, 1980, robbery of the Pride gas station. Massingill also stated on cross-examination that he had been convicted of an unrelated attempted robbery in Du Page County and that, after having been arrested on that charge, he had informed the Du Page County authorities that the defendant in the present case also was involved in an attempted robbery in Du Page County. Defendant was later precluded from offering evidence that he had been acquitted of this charge.
Theodore Lane and James Hall testified for the defense. They indicated that they had been incarcerated in the Kendall County jail with Massingill and they had conversed with him. According to Lane, Massingill told him that he had committed the robbery and that "he was going to go for probation * * * because he had a perfect fall guy." Massingill told the witnesses that he had a perfect fall guy or someone to go down for him. Massingill denied this and stated he had only told them that he hoped to be placed on probation.
Ronda Davis and Barbara Rockwell testified that the defendant had a disability in that his right leg was approximately four inches shorter than his left leg. Both witnesses remarked that the defendant wore corrective boots to compensate for the shorter leg; that they had never observed the defendant wear a shoe on his right foot which was not built up; and that they had never seen him wear any footwear other than two pairs of corrective boots. In addition, Ms. Rockwell stated that to the best of her knowledge the defendant did not own a pair of tennis shoes. Ms. Davis and another witness, Raymond Rockwell, testified that the defendant was wearing glasses on May 1, 1980, because he was unable to see without them.
The defendant presented an alibi defense at trial. Both Raymond and Barbara Rockwell testified that defendant was with Raymond Rockwell at 8:50 on the evening in question when they picked Barbara Rockwell up from work. They dropped Barbara off at her home at 9:10, went to get some beer and returned to her home at 9:20. At about 9:30 Massingill came to her house. Later in the evening at about 11 defendant went home and Barbara Rockwell went to a restaurant known as the Golden Bear with some friends. Massingill paid for everyone.
During the trial defense counsel asked Ronda Davis if she knew Phillip Massingill, who was Kenneth Massingill's brother. When asked how tall Phillip Massingill was, the court sustained the State's objection. Outside the presence of the jury defense counsel urged that this evidence was relevant because the man who robbed the gas station was described as having long blond hair, and being approximately five feet 10 inches tall. Defense counsel urged that Davis would testify that Phillip Massingill was approximately the same height as defendant Foley, rather than the five feet two inches as Massingill had testified. Therefore, he urged, Phillip Massingill would easily fit the description of the individual who committed the robbery. The court refused to allow defense counsel to explore this absent some showing that Phillip was involved in the case.
After closing arguments, the trial court ruled that the toy pistol was not a dangerous weapon. The trial court reduced the charge from armed robbery to robbery. After deliberation the jury returned a guilty verdict. Defendant Foley was ...