Appeal from the Circuit Court of Cook County, the Hon.
Sylvester C. Close, Judge, presiding.
JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1984.
Following a bench trial in the circuit court of Cook County defendant, Robert Taylor, was convicted of the murder and armed robbery of Freddie Lampton. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(d)) the People requested a death sentence hearing. Defendant waived his right to a jury at the sentencing hearing, and the court sentenced defendant to death for the murder conviction and to an extended term of 60 years' imprisonment for the armed-robbery conviction. Defendant has appealed both convictions and sentences. Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603.
Ronald Howell testified that on March 7, 1979, at approximately 9 p.m., he and Romy Wright were in an elevator at the Cabrini Green apartment complex. He stated that, when the elevator was at the fifth floor and descending, he heard two shots. Howell and Wright left the elevator at the lobby level, where Howell saw two acquaintances, Cynthia Cobb and Steve Davis, standing in the lobby near a stairway. Howell testified that Cobb was screaming and when he approached her he saw the body of Freddie Lampton lying near the stairs. Howell asked Davis to call the police and advised the hysterical Cobb to leave the area. He testified that after Davis and Cobb left he saw defendant "come down from somewhere," and bend over Lampton's body. It looked to Howell as though defendant removed Lampton's watch, but he could not testify to that fact with certainty. It also appeared to him that defendant took something from Lampton's pocket. According to Howell's testimony defendant then stood up and pointed a "big silver" gun at him telling him not to move. At that point Howell ran out of the building. He reported the incident to the police the following day. Although he stated that he saw defendant's face only briefly, on March 13, 1979, Howell pointed defendant out in a lineup, and his in-court identification was unequivocal.
Cobb, called as a witness by defendant, testified that on March 7, 1979, at approximately 9 p.m., she was in the lobby of a Cabrini Green apartment building when she heard two men arguing and then two gunshots. After hearing the shots Cobb ran out of the building but returned a few minutes later. She stated that as she was returning she saw an unidentified man, with his hands in his pockets, walking quickly out of the building. Upon her reentering the building she observed Lampton's body lying near the stairs and Davis and Howell standing in the lobby. Neither Romy Wright nor Steve Davis testified.
When the police arrived on the scene shortly after 9 p.m., Lampton was dead. The police discovered a spent bullet near the body and another was later recovered in his clothing. Subsequent tests indicated that Lampton's death was caused by the bullet wounds and that he was intoxicated at the time of his death. Except for a piece of paper, no personal belongings were found on the body.
Virginia Lampton, the deceased's widow, testified that her husband owned a wallet and watch, and that she last saw those items on March 6, 1979. She further testified that her husband was usually paid on Wednesdays. Charles Smilgys, the comptroller for the deceased's employer, testified that a payroll check in the amount of $286.88 was issued to Freddie Lampton on Wednesday, March 7, 1979, and that funds were paid out on the check that day. Virginia Lampton identified the endorsement on the check as her husband's signature.
Chicago police officer Joseph Sparks testified that at 8 p.m. on March 9, 1979, he responded to a radio report of gunshots. After parking his squad car near the scene of the reported shots, Officer Sparks testified that he observed a yellow van pull up behind him, that the van backed into a car behind it, and that two men then fled from the van. Following a short chase, the men were apprehended, and Officer Sparks identified one of them as defendant. The officer placed defendant under arrest and seized from him a gun and $158.
James Gainer, a firearms expert for the Chicago police department, testified that the bullets recovered by the police when Lampton was found dead could only have been fired from the gun that was taken from defendant at the time of his arrest.
Over defendant's objection, Mary Shropshire, an assistant State's Attorney, testified that on March 10, 1979, after advising him of his Miranda rights, she questioned defendant. Defendant told her that he had acquired the gun a week earlier in exchange for narcotics. Defendant also stated that he had exclusive possession of the gun that week, and that he had not been to Cabrini Green since 1973.
The People also introduced evidence of an attempted armed robbery committed by defendant on March 5, 1979, and an armed robbery he committed on March 9, 1979. Regarding the first incident, Shirley Christmas testified that defendant approached her car and pointed a "long silver" gun at her. Defendant ordered Christmas to open her car door and demanded money from her. After searching Christmas, defendant unsuccessfully attempted to start her car and threatened to take her with him. As to the second offense, Theophilus Hunt testified that the defendant approached his van, posed as a policeman and pointed a "nickel plated" gun at his head. Defendant ordered Hunt out of the van, searched him, and took the keys to the van and $9.
Defendant's first argument on appeal is that his armed-robbery conviction should be reversed because the State failed to prove beyond a reasonable doubt a forcible taking of property. A conviction of robbery requires proof that the accused took property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1979, ch. 38, par. 18-1.) Although defendant concedes that armed robbery may be proved by circumstantial evidence (People v. Susanec (1947), 398 Ill. 507, 513), he notes that the People's eyewitness, Ronald Howell, admitted on cross-examination that he did not actually see defendant take anything from Lampton's body. Defendant also maintains that there was insufficient proof that Lampton had personal property in his possession immediately before the incident. It is suggested that the reason defendant bent over Lampton's body could have been to determine whether Lampton was alive or to retrieve something defendant had lost earlier. Regarding the absence of Lampton's personal belongings, defendant asserts that, since Lampton was intoxicated, he could have spent all of his money earlier that day and given away or lost his watch and wallet.
Citing People v. Susanec (1947), 398 Ill. 507, the People argue that a conviction for armed robbery will be sustained on circumstantial evidence where the evidence is of a strong and convincing character so as to satisfy the trier of fact as to the defendant's guilt beyond a reasonable doubt.
We are of the opinion that there was not sufficient evidence to sustain the conviction for armed ...