Appeal from the Circuit Court of Cook County; the Hon. James
Heyda, Judge, presiding.
PRESIDING JUSTICE MEJDA*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 JUSTICE WILSON, WHO AUTHORED THE ORIGINAL OPINION, IS NOW DECEASED.
Following a jury trial, defendant was convicted of armed robbery and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 18-2, 33A-2, respectively), and sentenced to 20 years in the Illinois Department of Corrections. Defendant appeals, contending that: (1) the suggestive show-up prior to defendant's arrest so tainted the subsequent photographic and in-court identifications of defendant by complainant as to render them inadmissible; (2) the State's inflammatory and factually erroneous statements made to the jury during closing argument prejudiced defendant's right to a fair trial; (3) the State failed to prove defendant guilty beyond a reasonable doubt; (4) defendant was erroneously convicted of two offenses carved from a single act; (5) the trial court erred in enhancing defendant's sentence for perjury it perceived during the course of the trial; and (6) the trial court erred in imposing a general sentence where there had been a conviction on two counts. For the reasons that follow, we affirm the conviction for armed robbery, vacate the conviction for armed violence and remand the cause for new sentencing.
Prior to trial, defendant moved to suppress complainant's identification testimony on the ground that complainant was allowed to improperly view defendant in a one-on-one show-up which, in turn, tainted the subsequent photographic identification. In particular, defendant argued that in the early morning hours of June 6, 1980, shortly after the grill at which complainant worked had been robbed, complainant was taken to the scene of an automobile accident by the police for the sole purpose of identifying defendant, driver of one of the automobiles involved in the accident, as the robber. Upon arriving at the accident scene, complainant was informed that the passengers had been taken to St. Anthony's Hospital in Chicago. The police officer then drove complainant to the hospital, where she was taken to the police room. While sitting in the police room, complainant had her back to the doorway. However, she happened to turn toward the doorway just as defendant was wheeled by on a stretcher by hospital personnel. Complainant denied that she was directed by anyone to look toward the door at that particular moment. When she saw defendant, complainant unhesitatingly and voluntarily told the police officer that he was the man who had robbed the grill. The following day, complainant was shown a photographic lineup at the Forest View police station from which she identified photos of both defendant and his companion, Freddie Anderson.
In an attempt to demonstrate an independent basis for the photographic identification, complainant testified on behalf of the State that on June 6, 1980, approximately 1:30 a.m., she was working by herself at Ed's Grill in Forest View when defendant and a companion entered the grill, each carrying a sawed-off weapon. Defendant sat down at the counter and told complainant that this was a "stick up." The grill was well-lit with fluorescent lights, enabling complainant to have a clear view of defendant. After defendant and his companion left the grill with the money from the cash register, complainant immediately called the police. When they arrived, she described defendant as a black male, approximately six feet tall, 175 pounds, between 25 and 30 years old, with a mustache, medium afro, no scars, wearing blue jeans and no shirt. In addition, complainant told the police that she had seen defendant at the grill several times prior to the robbery. However, she did not know his name.
At the conclusion of testimony, the trial court granted that portion of defendant's motion requesting suppression of the hospital identification, but denied that portion requesting suppression of the subsequent photographic identification. In so ruling the court found that the hospital identification was unnecessary and suggestive, but that complainant's prior acquaintance with defendant established an uninfluenced, independent basis for the photographic identification and any subsequent in-court identification.
Thereafter, defendant moved that the evidence of the reckless homicide be suppressed, arguing that the reckless homicide and the armed robbery were not connected in any way and that information of the death of a 16-year-old in the other car would severely prejudice defendant. The trial court ruled that evidence of the reckless homicide was admissible to show flight, but that no evidence could be presented regarding the death of or injuries to anyone involved in the accident.
At trial, complainant testified that she was employed at Ed's Grill, 4700 South Laramie, Forest View, as a short-order cook and waitress. On June 6, 1980, she worked the 10 p.m. to 6 a.m. shift by herself. Approximately 1:30 a.m. that day she was sitting at the counter on the customer side, looking at a quilting magazine entitled "Craft," when defendant and a companion entered the grill. There were no other customers in the grill at the time. Complainant recognized defendant, but not his companion. She did notice, however, that his companion was wearing a blue jean jacket with the word "Zak [sic]" written across the back on a faded decal, blue jean pants and was carrying a "shiny light brown gun" that looked like a sawed-off rifle or shotgun, but was smaller than the "dirty long sawed-off shotgun" carried by defendant. After defendant demanded the money from the register, complainant handed him all the cash and dumped the change from the change drawer into the "Craft" magazine which was laying open on the counter. Defendant picked up the magazine and left with his companion. Approximately $178 had been taken.
Shortly after she notified the Forest View police of the robbery, Officer Glenn David arrived at the grill and drove complainant to the scene of an accident in Chicago. From there, they went to St. Anthony's Hospital. In the hospital parking lot, complainant was directed to look in the trunk of a Chicago police squad car where she saw the two guns used in the robbery, the blue jean jacket worn by defendant's companion, and some change in a brown paper bag.
The following day, approximately 2 p.m., complainant met Officer David at the Forest View police station where she viewed a photographic lineup of eight photos of male Negroes. From these photos, complainant identified defendant and his companion. At this point in her testimony, complainant made an in-court identification of defendant as the man who robbed the grill. Further, she identified the guns used by defendant and his companion during the robbery, the jacket worn by the companion at the time of the robbery, the magazine in which she had put the change from the change drawer, a photo of the photographic lineup from which she identified defendant and his companion, and the photos themselves that she had identified at the lineup.
On cross-examination, complainant stated that she had told the Forest View police that she recognized defendant as a previous customer at the grill, but she did not specifically tell the police that she had waited on defendant 20 times. She first saw defendant in the grill approximately five years ago and remembered him because he had been extremely arrogant and hostile on several occasions over the five-year period. In fact, she had called the police twice because of defendant's unruly behavior. However, each time defendant left the grill before the police arrived. Complainant had not heard or seen a car leaving the area of the grill after the robbery.
Next, Frank Miulli, Chicago firefighter paramedic, testified that on June 6, 1980, approximately 3:30 a.m., he was dispatched to the scene of an automobile accident in the area of 18th and Pulaski. When he arrived at the scene, he saw a brown vehicle and a white vehicle. Defendant was conscious and seated in the driver's seat of the brown vehicle, wearing blue jeans and no shirt. The passenger, wearing a blue jean jacket and blue jeans, was sprawled across the front seat, unconscious.
After Miulli removed defendant from the vehicle, defendant told him that he wanted to get some money that he had left on the passenger side. Miulli then walked over to the passenger side where his partner shone a flashlight inside the car to locate the money. At that point, the partner spotted two sawed-off weapons which he gave to the Chicago police officer at the scene. On the witness stand, Miulli identified the guns removed from defendant's automobile and the blue jean jacket worn by defendant's companion.
Officer Daniel Chorowicki of the Chicago police department then testified that on June 6, 1980, approximately 3:30 a.m., he was at the scene of an automobile accident in the vicinity of 16th and Pulaski when he observed a paramedic recover two sawed-off weapons from a brown vehicle and hand them to a Chicago police officer who put them in the trunk of his squad car. At that time, Chorowicki remembered a message he had heard on his radio a few hours earlier regarding a Forest View robbery committed by two male Negroes carrying sawed-off weapons. After calling dispatch for a more detailed description of the offenders, Chorowicki told the other Chicago police officers at the scene that he believed the two men in the brown vehicle were wanted in connection with an armed robbery in Forest View. At this point in his testimony, Chorowicki identified the weapons removed from the brown vehicle by the paramedic, the jacket worn by defendant's companion, and made an in-court identification of defendant as the driver of the brown vehicle.
Next, Officer Gary Zuelke of the Chicago police department testified that on June 6, 1980, approximately 3:30 a.m., he observed a brown Chevrolet proceeding the wrong way down a one-way street. When he attempted to curb the vehicle for the traffic violation, the Chevrolet sped off at a high rate of speed. Zuelke then activated his emergency siren and lights and proceeded to chase the speeding car. From the moment that he first observed the brown vehicle until he saw it collide with another car, Zuelke never lost sight of it. At the scene of the accident, Zuelke observed two people in the brown vehicle, one of whom he identified at trial as defendant.
Zuelke further testified that he observed a paramedic lean into the brown vehicle and find two sawed-off weapons, which he handed to Zuelke. After unloading the weapons, Zuelke placed them in the trunk of his squad car. At this point in his testimony, Zuelke identified the weapons found in the brown vehicle. Zuelke further stated that when he observed the occupants of the brown vehicle, he noted that the driver was wearing blue jeans and no shirt and the passenger was wearing blue jeans, no shirt and a blue jean jacket with the word "Zap" written across the back. After searching the brown vehicle, Zuelke recovered approximately $100 from the floor, put the money in a brown paper bag and placed the bag in the trunk of his squad car. Upon arriving at St. Anthony's Hospital, Zuelke was given a blue jean jacket with the word "Zap" written across the back, which he also put into his trunk. While at the hospital, Zuelke met complainant, who accompanied him to his squad car to look at the items in his trunk, i.e., sawed-off weapons, jacket and money. Zuelke then identified the weapons and the jacket he had shown to complainant and the magazine he had observed on the floor of the brown vehicle.
On cross-examination, Zuelke stated that he had found only $18.76, primarily in change, scattered on the floor of the car. Further, the brown vehicle was not registered to defendant. Rather, it had been taken in an armed robbery.
After the State rested its case, defendant's motion for a directed verdict was denied.
Next, Mark Surles, defendant, testified that on the evening of June 5, 1980, he was drinking with some friends at the park at 55th and Shields in Chicago. Approximately 2:30 a.m. the following morning, while on his way to a tavern at 54th and Shields, defendant noticed an empty car, with its motor running, parked near the tavern. He entered the car and drove off to pick up his friend, Freddie Anderson. Later, on the way to his own house to pick up some more money, defendant noticed a police squad car and immediately sped away. He never saw any weapons or money in the car. At ...