Appeal from the Circuit Court of Cook County; the Hon. Leonard
R. Grazian, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted and sentenced to eight years for armed robbery and five years for aggravated battery. *fn1 He contends on appeal that (1) he was denied effective assistance of counsel; (2) the identification testimony of the complaining witness should have been suppressed; (3) his oral and written statements were involuntarily made and should have been suppressed; (4) he was not proved guilty beyond a reasonable doubt; and (5) the trial court abused its discretion in imposing a sentence of eight years for armed robbery.
At trial, Arlene Hrubecky testified that she was walking near Brompton and Halsted at approximately 1:30 p.m. on July 31, 1981, when a man standing near the sidewalk spoke to her. She could not distinguish what he said, and as she began to turn toward him a second man approached her from the front, took out a gun, and pointed it at her head. She heard the gun click, then the man grabbed her purse and struck her twice about the head and face with the gun. The two men ran toward a car parked on Brompton, and as they approached it the motor was started and both doors were opened. They entered the car, and as it sped away she noted that it was yellow and bore license plate number IY 7744. Immediately after the incident, she telephoned the police and gave a description of the car. She further testified that she viewed a lineup later that afternoon and identified co-defendant Andrew Kahill as the man with the gun. Defendant was in the lineup, but she could not positively identify him as the second man involved because she had seen his face for only a few seconds, although she told officers that he looked like the man who spoke to her. Subsequently, Detective Graffeo took her to a room where defendant was sitting alone, and when she entered defendant approached her and apologized for what happened, stating that he was sorry he said "This is a stickup." She admitted that she was not positive defendant was the man who spoke to her at the scene until he made this statement.
Officer Granias testified that he was on patrol at 1:30 p.m. on July 31, 1981, when an unidentified person reported hearing a woman screaming in the vicinity of the 700 block of Brompton. As he proceeded to that location, he saw a cream or yellow car with four black male occupants, and noted the license number, IY 7744. At the scene, he spoke to an unidentified woman who described the car involved in the occurrence, including the license plate number. He put out a radio call on the incident and learned that the radio dispatcher had already received the license number from the victim's phone call, and that it was registered to Bobby Spicer. Twenty to thirty minutes later, he saw the car in question proceeding southbound on Lake Shore Drive, began pursuit, and forced it to the curb. As defendant, Kahill, and Spicer emerged from the vehicle, Kahill said "Don't shoot, the gun is in the trunk." Subsequently, a gun was recovered from the trunk. After being read his rights, Kahill further stated, "I walked up to her. I had the gun."
Detective Graffeo testified that after initially denying their involvement in the incident, Kahill and defendant agreed to give statements. After being read his rights, Kahill stated orally that he, defendant, Spicer, and Gregory Connerly were driving around when they saw a woman walking down the street. He (Kahill) got out of the car, approached her with a gun, took her purse, and returned to the car. Later, they stopped again, placed the gun in the trunk, and changed drivers. They went through the purse, removed some of its contents, then discarded the purse and the remaining contents as they drove. Graffeo further testified that defendant agreed to give a written statement. He had been advised of his rights and was not physically abused or threatened in any way. After the statement was typed, defendant read it, made a correction which he initialed, and signed each page.
Defendant's two-page written statement was admitted into evidence. He acknowledged therein that he understood his rights and waived them, then stated in pertinent part:
"CONLEY: I got out of the car and seen this lady walking down the street, as I was walking past her, I said `This is a Stick-Up.' She just smiled and kept walking. And I kept walking. Then I seen the lady struggling with another person over her bag. I heard her scream, she screamed again, I heard the car pullin' off and I ran towards the car and I got in the car.
GRAFFEO: Why did you say, — `stick-up'?
CONLEY: `Cause I guess that's what I was fixin' to do, but I didn't do it.
GRAFFEO: Did you know the person with whom the lady was struggling over her bag?
GRAFFEO: Has anyone made any threats, promises or used force on you to give this statement?
Gregory Connerly testified for the defense that he met his friends Kahill, Spicer, and defendant at 49th and State on July 31, 1981, at approximately 11:30 a.m. They drove to Chicago Fest, but it was crowded there, so they went to the beach at Belmont for awhile, then started driving back to Chicago Fest. When they stopped for a red light, a police car pulled in front of them and the officers got out with guns drawn and ordered them out of their car. They were told they were stopped in connection with a robbery of a clothing store, and it was not until they reached the police station that officers informed them of the robbery in question. Connerly did not recall hearing anyone say "Don't shoot, the gun is in the trunk," nor did he remember telling officers that Kahill and defendant got out of the car and robbed a woman; that Spicer was driving at that time, and he (Connerly) was sitting in the back seat; and that someone went through the victim's purse, then discarded the contents as they drove. At the police ...