Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Williamson
County, the Hon. Snyder Howell, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendants, Stanley Ash and Phillip Helton, were convicted after a jury trial in the circuit court of Williamson County of armed robbery, home invasion and unlawful restraint. Ash was sentenced to serve concurrent terms of 30 years for armed robbery and home invasion, and three years for unlawful restraint. Helton was sentenced to serve concurrent terms of 20 years for armed robbery and home invasion, and two years for unlawful restraint. The appellate court, in a Rule 23 order (87 Ill.2d R. 23), reversed Ash's conviction on the ground that the State failed to prove guilt beyond a reasonable doubt. The court reversed Helton's conviction and remanded for a new trial, holding that there was not effective assistance of counsel. (112 Ill. App.3d 1175.) We granted the State leave to appeal under Rule 315 (87 Ill.2d R. 315).
Ash and Helton were indicted along with Bennett Brown and Robert Phelps for the above-stated offenses. Brown was tried with the defendants, but was acquitted of all charges. Phelps entered a negotiated plea of guilty to two counts of armed robbery and was given concurrent sentences of six years on each count. He offered to testify in behalf of the prosecution, and the State dismissed the remaining charges against him. Each defendant was represented by his own attorney throughout the proceedings.
On January 3, 1980, Brenda Mosley was watching television in the house she shared with John Marczewski. Marczewski was not home, but a friend, Paulette Crosson, was with her. Shortly after 8 p.m., two men knocked on the back door and asked for Marczewski, saying they wanted to buy drugs. Mosley knew neither of the men and asked them to leave. The men refused and forced their way into the living room. One man pulled a tire iron from beneath his coat and the other brandished a knife. They tied the women with tape and forced them to the floor. The two men struck, kicked and threatened the women. The man with the tire iron then untied Mosley and asked her to show him where valuables were located. Marczewski came home about 8:30 p.m. and opened the front door. The robbers yelled at him, demanding money. Marczewski ran and hid in the front yard of a house across the street. The men fled, taking with them some jewelry, about $800 in cash, two bags of marijuana, some sticks of explosives, and a handgun.
Crosson and Mosley freed themselves and ran to the house of a neighbor, Candace Emery. Emery testified that she went to her porch and saw a small yellow car slow down and then stop in front of her house. Emery observed the license number and called it out to her husband, who phoned the police. Marczewski, from his hiding place, observed a yellow Monza auto cruise down the street. Two men entered and the car drove away. He did not observe the license plate, and could not identify either of the men.
Another neighbor, Wayne Richardson, testified that around 8 p.m., he observed a red Corvette auto park across the street from his house. Two men, whom he could not identify, left the car and walked toward Marczewski's house. Approximately 15 minutes later, Richardson saw a small, light-colored car drive up in front of his house and leave off two men who entered a red Corvette and drive away.
When police questioned the two victims at the scene, they said that the man with the tire iron had light-colored hair and wore a long tan coat, jeans, brown boots and a ski hat. The man with the knife had dark hair and wore a long tan coat, ski hat, blue jogging pants with red and white stripes, and tennis shoes.
Later that evening, detectives stopped a small yellow car with the same license number reported at the crime scene. The occupants, the defendant Helton and Robert Phelps, were arrested. After the car was impounded, a search disclosed a tire iron found on the passenger-side floorboard, two long tan overcoats and a black gym bag bearing Helton's name, which contained two bags of marijuana and two sticks of explosives. Items of jewelry, later identified by Mosley as stolen from her, were discovered in Helton's pocket after a station house inventory of his personal effects. A statement was taken from Phelps. It named defendants Ash and Helton as the men who invaded Mosley's house. Ash was arrested on January 8, 1980. He was wearing blue jogging pants with red and white strips and was driving a red Corvette.
On January 4, 1980, the day following the arrest of Helton and Phelps, Mosley and Crosson viewed "mug books" of photographs to try to identify their assailants. Mosley could not pick out anyone, but Crosson selected two photographs of persons who, she said, looked like the intruders. These, however, were not photographs of Helton or Ash but, as was learned later, one of the photographs was that of Phelps. Although all of the defendants were in custody after January 8, 1980, no lineup of them was ever held. In early May of 1980, the prosecutor reinterviewed Crosson and Mosley. They stated that they might be able to identify the intruders if they saw them in person. At this point, none of the defendants had been positively identified by Crosson or Mosley as the robbers.
Later, on May 15, 1980, a hearing was had on a motion the defendants Ash and Helton had made to suppress any identification which might be made of them prior to or at trial. In chambers prior to the hearing, the defendants argued that since no identification of them had been made as yet, any attempt by the victims four months after the defendants' arrests to make an identification would constitute an improperly suggestive show up. To eliminate suggestiveness at the hearing, the defendants at the judge's order were seated, not at the counsel table, but in the spectator section of the courtroom.
Crosson and Mosley were sworn and asked if they saw anyone in the courtroom they could identify as the robbers. Mosley could not make any identification and later at trial did not identify either defendant. Crosson while seated on the witness stand was unable to identify anyone. She then stepped to the railing in front of the spectator section and identified Helton as the assailant who brandished the tire iron. When asked if she could identify the other assailant, Crosson pointed first to a man in the courtroom who she said "might be" the intruder with the knife, but the man proved to be an attorney seated in that section. She then pointed to a second man who might be the intruder, but he was also an attorney. The prosecutor then pointedly asked Crosson if the man she picked was wearing glasses. He was not. Crosson then picked Ash who was seated next to the second man and who was wearing glasses. Crosson identified Ash and Helton at trial.
As stated, Phelps agreed to testify against his co-defendants. He was seeking the dismissal of some of the charges, a lenient sentence, and to avoid being sent to the prison where individuals that he had testified against in a 1976 prosecution were confined. His cross-examination disclosed that these individuals had "put out a contract" on Phelps' life, and, he testified, he "would do just about anything" to avoid being incarcerated with them. When Phelps was called to testify, he refused to answer any questions, pleading the fifth amendment. He did agree to testify after the State filed a motion to set aside his negotiated plea of guilty.
Phelps testified that on January 3, 1980, at about 1 p.m., he and Helton met Ash and Brown at a bar in West Frankfort. They proceeded to one Rick Stewart's house. He took them to several jewelry stores where they attempted to sell a ring. Thereafter they left Stewart, and the four decided to go to Carterville to buy drugs. There Phelps and Brown dropped off Helton and Ash at a house, and Phelps, driving Helton's yellow Monza, came back about 20 minutes later and picked up Ash and Helton. Only later, he said, he learned from Helton that they had committed the robbery. The proceeds of the crime were divided among the four. Helton claimed two bags of marijuana, two sticks of ...