Appeal from the Circuit Court of Cook County; the Hon. Thomas
R. Fitzgerald, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
In a jury trial, defendant, Vittorio Campbell, was found guilty of armed robbery and aggravated battery and was sentenced to serve two concurrent eight-year terms of imprisonment in the Illinois Department of Corrections. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt; that he was prejudiced by evidence suggesting that an accomplice had implicated him and by the prosecutor's repeated reference to this matter in closing argument; and that the trial court improperly restricted his direct examination. For the reasons hereinafter stated, we reverse defendant's convictions and remand the cause for a new trial.
Miller Tan testified to the following:
At 12:30 a.m. on June 3, 1980, Tan was driving his Ford pickup truck north on Halsted Street in Chicago. Approximately 100 feet north of the intersection of Halsted and 72nd Street, two young women "flagged" Tan. After he parked his truck, a man identified by Tan as Dwayne Robertson approached him and asked him if he "wanted a date, a young lady." Robertson and Tan agreed to a price of $20 but Tan refused to pay him until he saw the woman. Robertson walked across the street to a vehicle which was parked on the west side of Halsted and spoke briefly with a young black woman who was standing outside the car. The woman crossed the street, entered Tan's truck and "quoted" a price of $20 to spend the day with her. Tan accepted and suggested that they go to a motel. The woman said that she first had to go to her home. She exited the truck, walked across the street, appeared to have a conversation with Robertson and then returned to Tan's vehicle.
The woman told Tan to stop at a Clark gas station located at 68th and Halsted and asked him for $5 so that she could buy a "nickle [sic] bag of marijuana." Tan gave her the money, stating that he would owe her only $15 after their "business was transacted." The woman took the $5, walked to a blue Buick parked at the station and returned to Tan's truck. Tan and the woman then proceeded to 61st and Wallace where he parked his truck and left the motor running. The woman exited his truck and returned alone a few minutes later.
After she reentered his vehicle, Tan looked into his mirror and noticed Robertson "creeping" along the driver side of his truck. Robertson, who had a cast on his right arm, reached into the truck and placed his right hand across Tan's face, knocking Tan's prescription glasses from his face. Another man, whom Tan identified as defendant, pulled the woman out of the truck, entered the vehicle on the passenger side and thrust a sawed-off shotgun into his right side.
Defendant hit Tan on the side of his head with a shotgun, stating that he always wanted to kill "a pig." Tan protested that he was not a policeman but defendant kept repeating that he wanted to kill "a pig," and pushed the shotgun into Tan's rib cage. Robertson, who was standing outside of the truck on the driver side, struck Tan several times on the left side of his forehead with his cast.
Defendant and Robertson took Tan's bracelet, his watch and between $40 and $50 in currency. They then forced Tan to the floorboard of the truck and defendant hit Tan with the shotgun on the left side of his head behind the ear. Robertson entered the truck, stepped over Tan and drove the truck approximately 75 feet. Defendant and Robertson then exited the truck, threw the keys onto the floorboard and fled from the scene. There was a third black man standing behind Robertson but Tan saw him only momentarily. After the robbery, Tan drove to the police station located at 51st and Wentworth where he reported the incident. He later spoke with several other police officers at 61st and Racine.
Tan estimated that six to eight minutes had elapsed from when he first saw Robertson in the mirror until he was forced to the floorboard. He thought that there was a street lamp approximately five feet in front of the truck and there was some additional illumination from a nearby railroad crossing. Since defendant failed to close the passenger side door when he entered the truck, the inside dome light remained on for the entire time defendant was inside the vehicle. Tan was compelled to look in defendant's direction because Robertson had placed his casted arm on Tan's face. Although Tan had lost his glasses, he experienced no difficulty seeing defendant who was only two feet away from him.
On cross-examination, Tan testified that he was beaten so badly that he was bleeding from several different places on his head. Yet, he did not seek medical attention for several days. Although, at trial, Tan testified that he had not been knocked unconscious, he admitted that at the preliminary hearing he had testified that he became unconscious when defendant struck him on the side of his head with the shotgun. Tan explained that he had been "dazed."
On June 4, 1980, the day following the robbery, at approximately 4:30 p.m., Tan identified Robertson in a lineup. Ten days later, on June 14, 1980, sometime between 3:30 a.m. and 4:30 a.m., Tan selected defendant's photograph from an array of seven photographs of black men which the police showed to him at his home. The defendant was the only person depicted who had a beard. He then accompanied the officers to 61st and Racine where he also identified defendant in a lineup.
In his testimony, defendant denied any involvement in the armed robbery and aggravated battery of Miller Tan. Defendant stated that at the time of the offenses, he was playing pool, drinking and watching television in a lounge at 71st and Halsted.
• 1 Defendant contends that he was not proved guilty beyond a reasonable doubt. In the first part of his argument, defendant submits that Tan's out-of-court identification of defendant's photograph was unnecessary, because defendant was already in custody, and impermissibly suggestive, because he was the only person depicted who had a beard. Defendant has waived consideration of this matter, however, ...