Appeal from the Circuit Court of Cook County; the Hon. Philip
Carey, Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2) for which the trial court sentenced him to a six-year term. On appeal, defendant contends that: (1) the State's cross-examination of defendant was improper for it was designed to elicit his opinion of the credibility of State's witnesses and suggested that he had a duty to explain their motivation for fabricating testimony; and (2) the cumulative effect of the improper comments made by the State in rebuttal argument deprived defendant of a fair trial. For the reasons that follow we affirm the trial court.
At the outset, lengthy pretrial motion hearings were held during which defendant's motions to suppress physical evidence, statements, and lineup identification, among others, were denied.
At trial, Adrienne Guidry, the complainant, testified that on February 23, 1979, approximately 9 p.m., she was returning home from having a drink with friends after work, walking south in the middle of Essex Avenue near 79th Street in Chicago, when a man ran up from behind her, grabbed her arm, turned her toward him, and, while pointing a sawed-off shotgun at her, demanded her money. Guidry described the person as a black male, approximately 5 feet 9 inches, 155 pounds, wearing a long black coat, small black hat, tinted sunglasses and carrying a bookbag. He told Guidry that he did not want to hurt her, but that he needed the money to get his car out of the repair shop. Although it was evening, the street was brightly lit by street-lights and house lights whose glow was intensified by reflection off the snow, enabling Guidry to get a very good look at the man who robbed her. Furthermore, she had ample time in which to view her assailant because upon first approaching her, the man directed her away from the middle of the street to the west sidewalk; then, because that location was even better lit, he directed her across the street near some parked cars. Throughout these maneuvers, Guidry had a clear, unobstructed view of her assailant's face. At one point during the robbery, a red shell with a gold end fell out of defendant's shotgun.
After the robbery, Guidry returned home and immediately notified the police to whom she gave a detailed physical description of the man who had robbed her. Thereafter, on February 27, 1979, after having apprehended defendant, who closely resembled the description given by Guidry, police detectives picked up Guidry from her home and brought her to the police station to view a lineup at which Guidry identified defendant as the man who had robbed her. At trial, Guidry again identified defendant as her assailant and also identified the shotgun and shells that had been recovered from defendant's apartment as those used by defendant during the robbery.
During cross-examination, the defense attempted to discredit Guidry's identification of defendant by focusing on her inability to describe the hat defendant was wearing at the time of the robbery. Because Guidry described the hat at various times as a "tam, turban or skull cap," the defense characterized her identification as unreliable. In fact, Guidry was simply stating the various names commonly used to describe a small black cap such as the one defendant wore during the robbery.
Thereafter, Officer Raymond Madigan testified that on February 27, 1979, approximately 3 p.m., he arrested defendant in the area of 79th and Paxton in Chicago. At the time of his arrest, defendant was wearing a full-length black coat. At the station, Madigan read defendant his rights, informed him that he was under investigation for some armed robberies in the area, and that he would be placed in a lineup to be viewed by several of the robbery victims. Defendant was then taken to the lock-up. Approximately an hour later, Madigan received a call from the lockup keeper, informing him that defendant wanted to talk to him. As a result, Madigan brought defendant back to the tactical office for their second conversation during which Madigan confirmed that the lineups would take place. Defendant then asked him what he wanted to know. In response, Madigan went through several armed robbery case reports and asked defendant if he knew anything about them. Defendant admitted that he knew something about the robbery that took place on February 23, 1979, around 8000 South Essex, and asked Madigan if the victim in that robbery had been a woman, and if she would be at the lineup. When Madigan answered both of defendant's questions in the affirmative, defendant voluntarily confessed to the robbery, stating that he had been armed with a sawed-off shotgun and had needed money to get his car out of the repair shop. No written statement was taken.
In addition, Officer Donald Mitchell testified that he was one of the officers who arrested defendant on February 27, 1979. Mitchell further stated that he also apprehended Darryl Edmonds, a companion of defendant's, at the arrest scene. Edmonds informed Mitchell that he, another man (Renardo Ross), and defendant had just left defendant's apartment where defendant had been talking about armed robberies and showed them a sawed-off shotgun which defendant kept hidden behind the back panel of a non-working console television set in the living room of his apartment. While Madigan and several other officers took defendant and Edmonds to the police station, Mitchell and three other officers went to defendant's apartment to recover the shotgun. Mildred Adams, defendant's mother, voluntarily permitted the officers to enter the apartment and to recover the gun. *fn1 In addition to the gun, Mitchell recovered a holster and two red bullets with gold ends from inside the back panel of the television. Mitchell marked the shotgun for identification and inventoried all recovered items at the police station. On cross-examination, Mitchell stated that the shotgun was operable on the date it was taken into custody. The record reveals that there was some dispute over the operability of the gun as the result of a police crime lab determination that the gun was not operable when examined by a lab technician. However, no actual police crime lab report had been written. To apprise the jury of the conflicting evidence, the parties stipulated to the lab finding and read the following to the jury:
"* * * [W]ere Mr. Gainer to be called on behalf of the defendant as a witness, * * * he would testify that he is a technician of the Chicago Police Crime Laboratory and that he would state that he examined the weapon in this case, which had been marked People's Exhibit Number 3, a few days after the date of the arrest, February 27, 1979, and that as a technician for the crime lab, he was unable to fire that weapon."
Thereafter, the defendant's motion to bar the testimony of Assistant State's Attorney William Buenger was denied and Buenger testified that on February 27, 1979, approximately 9 p.m., after the lineup identification had been made, he was called to the Fourth District police station to meet with Adrienne Guidry and defendant, separately. Officers William Zaremba and Mark Morrow were present during Buenger's conversation with defendant. Buenger advised defendant of his rights, asked him about the robbery of Adrienne Guidry, and informed him that a sawed-off shotgun had been recovered from his apartment. At that point, defendant acknowledged that the shotgun was his, although he was not actually shown the gun that had been recovered. No written statement was taken. Subsequently, the State rested its case and defendant moved for a directed verdict which the court denied.
Kathy Williams appeared for the defense as an alibi witness and testified that on February 23, 1979, the night of the robbery, approximately 6 p.m., defendant telephoned her and asked her to pick him up that evening. Williams met defendant approximately 8:30 p.m. in the vicinity of 79th Street and Yates, walking down the street, and they drove to her parents' house in Markham where defendant stayed until the following evening. Williams stated that at that time she and defendant had been dating each other regularly for about a year. At the time of the trial, however, they were just friends and she had not seen defendant since February 24, 1979, when she brought defendant home from her parents' home. She had been subpoenaed to testify.
On cross-examination, Williams indicated that she first heard about defendant's arrest a few weeks after it had happened (March 1979) and was asked to testify a few months before trial (March 1980). Williams further stated that when she picked up defendant on the evening of February 23, 1979, he was wearing a three-quarter-length rust plaid coat and Totes rubber boots. She had never seen him in a long black coat or a small black hat, but had seen him in tinted sunglasses.
Next, defendant testified that on February 23, 1979, Kathy Williams picked him up on 79th Street and they drove to her parents' house in Markham where he stayed until the next afternoon. Defendant further stated that on February 27, 1979, he was arrested and taken to the Fourth District police station. At the station, he saw Officer Madigan and asked him why he was arrested and also informed him that he wanted to talk to his lawyer. Madigan told defendant that he was under investigation for armed robbery. After being sent to the lockup, defendant asked to talk to Madigan again to find out what the charges were and the amount of his bond. During this second conversation, Madigan asked him about the robbery at 80th and Essex and told him there would be a lineup. Again, defendant asked to speak to his attorney. Approximately 9 p.m. that evening, defendant met with Assistant State's Attorney William Buenger and two police officers at which time defendant again asked to speak to his attorney. During his conversation with Buenger, defendant denied knowing anything about the Adrienne Guidry armed robbery and denied owning a shotgun.
At trial, defendant indicated that the shotgun could have been placed in his apartment by either Darryl Edmonds or Renardo Ross who were in his apartment the afternoon of his arrest. Furthermore, defendant stated that for about four months prior to his arrest, his cousin, Robert Hicks, who had just been released from the penitentiary for a robbery conviction, had lived at defendant's apartment. Shortly before Hicks left, he and defendant had an argument over a woman, at which time ...