Appeal from the Circuit Court of Cook County; the Hon. Stephen
A. Schiller, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendant, James Dickerson, was charged with three counts of armed robbery. The motion to nolle prosequi two counts was granted. Dickerson was then tried for one count of the armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) of Derrick Hayes, the assistant manager of a Church's Chicken restaurant. He was convicted by a jury and sentenced by the trial court to 12 years in the Illinois Penitentiary.
On appeal, defendant raises the following issues: (1) whether alibi evidence was properly excluded; (2) whether introduction of evidence of other crimes was proper; and (3) whether certain closing arguments by the prosecutor were improper.
At a pretrial hearing on April 30, 1981, defense counsel presented a motion in limine to exclude evidence of (1) a pending charge for bail-jumping; (2) other robberies of Church's for which defendant was not formally charged; and (3) allegations concerning implications of involvement in a murder. After arguments by both sides, the motion was denied.
On June 19, 1981, five days before the scheduled date of trial, defense counsel filed notice of an alibi defense. The State objected on the ground that the untimely notice was prejudicial to its case. On June 23, the court heard and denied defendant's motion to produce three witnesses for an alibi defense. The ruling barred defendant's alibi defense and the case proceeded to trial on June 25, 1981.
The facts, as summarized here, show that Church's Chicken restaurant, at 6301 South Woodlawn, in Chicago, was robbed twice, at noon and 9 p.m., on February 3, 1980. There was also evidence that the same restaurant had been robbed on January 7, 1980. Defendant was tried only for the robbery that occurred at noon on February 3, 1980.
On February 3, 1980, at approximately noon, Derrick Hayes, an employee of Church's restaurant, at the Woodlawn address, was robbed. The offender brandished a sawed-off shotgun and demanded money from Hayes. After Hayes gave the offender money from a safe, the offender then ran out the door. At approximately 9 p.m. on that same date, the same man returned to Church's, again brandishing a shotgun. He demanded and was given money from the cash register.
After each robbery, a description of the offender was given to the police by witnesses. After the noon robbery, the offender was described as a male, 5 feet 9 inches in height, weighing 140 to 150 pounds, dark complexioned with a facial rash, and clean shaven. He wore a beige trench coat and blue jeans. It is unclear whether the offender wore a cap. Following the 9 p.m. robbery, the offender was described as wearing a blue pea coat, blue pants and a blue cap.
On February 22, 1980, Chicago police officers Wheat and Johnson arrested defendant at 63rd Street and Woodlawn. Shortly after his arrest, defendant was identified by Derrick Hayes and other employees of Church's as the perpetrator of the robberies on January 7 and February 3, 1980. There was conflicting testimony as to exactly how the identification of defendant was carried out immediately after his arrest. Defendant was also identified in court as the offender.
According to Officer Wheat, defendant admitted committing two robberies on the same day (February 3, 1980) because it was so easy.
The jury found defendant guilty of armed robbery. Following a hearing in mitigation and aggravation, defendant was sentenced to 12 years' imprisonment.
Defendant contends the trial court's exclusion of his alibi defense was error. He argues, convincingly, that the trial court could have imposed a lesser sanction for his failure to make his alibi defense known earlier. Defendant argues that exclusion of his alibi defense was especially prejudicial since the State's case was based on identification testimony. Furthermore, there were numerous inconsistencies in the State's identification evidence, and thus presentation of the alibi defense was crucial to his case.
• 1 The State argues that defendant has waived this issue because of his failure to raise it in a written motion for a new trial. However, the waiver rule is a limitation on the parties, not on the court, and a reviewing court may ignore the rule to reach a just result. (Augsburg v. Frank's Car Wash, Inc. (1982), ...