Appeal from the Circuit Court of Cook County; the Hon. James
J. Heyda, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
JUSTICE LORENZ delivered the opinion of the court:
Following a jury trial, both defendants Jaime Martinez (Martinez) and Kenneth Hernandez (Hernandez) were found guilty of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2). Martinez was sentenced to nine years in the Illinois Department of Corrections; Hernandez was sentenced to eight years. They filed separate appeals, which were consolidated.
On appeal, they contend that (1) the trial court erred in denying their motion to suppress the identification testimony of the victim, Ronald Grzesiak; (2) they were not proved guilty beyond a reasonable doubt of armed robbery, as the evidence was insufficient to sustain a conviction; and (3) the trial court erred in failing to grant their post-trial motions based on their alleged newly discovered evidence.
We affirm their convictions for the reasons set forth below.
The facts adduced at the pretrial hearing on defendants' motions to (1) quash their arrest and suppress the evidence found therefrom, and (2) suppress the victim's identification testimony, follow.
The following pertinent evidence was adduced at the hearing on the motion to quash their arrests and suppress evidence found therefrom. Chicago police tactical officer Michael Daliege received a radio call of a robbery in progress from the police radio dispatcher on December 29, 1979, at approximately 11:45 p.m. He and his partner, Officer Jerry Makowski, proceeded in an unmarked police vehicle to the 2100 block of West 21st Street, Chicago, where they found the victim, Ronald Grzesiak, in a squad car being interviewed by beat officer Nick Matozzi. Matozzi described the alleged assailants as three male Latins wearing dark clothing (two wearing black jackets and one wearing a blue jacket). They were running south on Leavitt Street. Matozzi received this description from the victim.
Officers Daliege and Makowski immediately drove south on Leavitt and within 5 to 10 minutes of the robbery spotted a vehicle in the alley behind 2139 South Leavitt. Daliege testified that they observed a car carrying three Latino men coming towards them in the alley at a very slow rate of speed; the car did not have its headlights on, but was only 30 feet away from the alley exit to the street. A lamp post located five feet away from their vehicle provided sufficient lighting for this portion of the alley.
When they drove their car into the alley, using its headlights for further illumination, they observed guns being thrown out of both the driver's and front seat passenger's windows into the alley. Daliege later identified defendant Hernandez as the driver of the vehicle, Chano Villalobos *fn1 as the front seat passenger and defendant Martinez as the back seat passenger. Daliege then approached the vehicle with his gun drawn and requested the three men to step out of the car with their hands visible. The three complied, and he conducted a cursory pat-down on them. Daliege testified that he was aware at the time that a handgun had been involved in the robbery. Two of the men were wearing black jackets and the third wore a blue jacket.
He placed defendants Hernandez and Villalobos under arrest for unlawful use of a weapon, and then radioed Officer Matozzi to bring the victim to the mouth of the alley, as the descriptions of these suspects matched those of the offenders who had been involved in the armed robbery minutes before.
Less than two minutes later, the victim and Officer Matozzi arrived at the alley. The victim identified the three men as the perpetrators of the armed robbery. In addition to the unlawful use of a weapon charge against Hernandez and Villalobos, Daliege filed charges against all three for armed robbery. A post-arrest search of Martinez produced $65 in U.S. currency.
On re-cross-examination Daliege admitted that he had erred in his prior grand jury testimony where he stated that he had received the robbery suspects' descriptions over his police radio. In addition, when asked why he and his partner had not waited for a more complete description of the robbery suspects from Officer Matozzi, Officer Daliege explained that they were aware that the robbery had taken place minutes before their arrival, and that they proceeded in the direction that the suspects were running in, with hopes of finding these men.
Ronald Grzesiak (the victim) testified that he worked for Connie's Pizza on the evening of December 29, 1979. At approximately 11:45 p.m., he and his son were attempting to deliver a pizza to 2136 West 21st Street. His son left the van to deliver a pizza to that address, *fn2 and he remained alone in the van. The area surrounding the van was brightly lit by vapor-type streetlights and the van's inside overhead dome light was on.
He had been alone in the van for only a few minutes when an armed Latino man, 5'8" to 5'9" in height, 170 to 180 pounds in weight, wearing a black jacket, with black hair and mustache, approached the driver's side of the van and pointed a handgun directly at his face. He had about one minute to view this man. He next saw a second Latino male on the passenger side of the vehicle. This man, also armed with a handgun, but wearing a blue jacket, inserted the upper portion of his body inside the van's cab through an open window, and he too pointed a gun at the victim. He described the second man as 5'8" to 5'9" in height, 170 to 180 pounds in weight, with black hair and a black mustache. He had the opportunity to view this man for approximately 30 seconds. Finally, Grzesiak described the third Latino man, who was visible to him through his side-view mirror for approximately 15-20 seconds, but who had remained at the rear of the van: 5'4" to 5'5" in height, stocky build, black hair, and black jacket. Further, Grzesiak testified that (1) he had never seen any of these men before, and (2) he was calm during the entire incident, although he admitted that he was in fear of his life.
After taking all of his receipts at gunpoint, the three men fled on foot to the corner of 21st Street and Leavitt Street, a distance of 100 to 125 feet. He did not follow them. Instead, he described the three men to the police, who had arrived at the scene of the robbery in their marked squad car.
A description of the suspects was put out over the radio. After Grzesiak and the officers left the scene to drive through the surrounding area hoping to spot the fleeing suspects, they received a radio message that police had stopped a car containing three males in the alley behind Leavitt Street located between 21st Street and 21st Place, and which requested that Grzesiak be sent to identify these men. They arrived at the alley, and Grzesiak observed the police patting down three men who were up against a green Vega with their backs to him. When they turned around to face him, he was able to positively identify them as the men who had robbed him. Later at the police station, he was asked again to identify each suspect and the individual parts they played in the robbery. A plainclothes officer brought Grzesiak up to the window of the lockup. The three suspects were the only ones in the lockup. Each of the suspects was directed to come forward for identification, whereupon Grzesiak identified them and described their roles in the robbery. This entire procedure occurred less than 45 minutes after the robbery.
The trial court heard arguments by both sides on defendants' motions, and (1) denied their motion to quash the arrest and suppress the evidence found therefrom; (2) denied their motion to suppress the victim's identification testimony as to the in-alley identification, and (3) granted defendants' motion to suppress the police station identification as to the prosecutor's case-in-chief.
At trial, Grzesiak made an in-court identification of defendant Hernandez as the armed man who had approached the van on its passenger side. He also identified a chrome-colored handgun as that gun which was used by Hernandez in the robbery, and a blue-colored handgun as that which was used by Villalobos during the robbery. He testified that he had occasion to view Hernandez for approximately one minute while Hernandez unsuccessfully attempted to pull the key out of the ignition of the van and the microphone off the radio located in the van.
After giving approximately $65 to the armed man on the driver's side of the van (whose name Grzesiak later came to learn as Chano Villalobos), he saw defendant Martinez through his side-view mirror for approximately 20 seconds. Positioned at the rear of the van, Martinez was "looking around in all directions." Grzesiak made a positive in-court identification of Martinez.
He watched the three men flee south on Leavitt Street and then summoned help by calling the dispatcher at Connie's Pizza. A marked squad car arrived at the scene less than five minutes later. He further testified that while he was giving a description of the suspects to the uniformed car, a plainclothes police unit pulled up alongside them, to which he gave the same description three Latinos approximately 5'5" to 5'8" tall, all weighing between 170 and 180 pounds, and wearing dark clothing. After the plainclothes unit left, he got into the squad car with the uniformed officers to scout the area. In response to a call over the police radio, they proceeded to a half-block south on Leavitt between 21st Street and 21st Place, where he observed the unmarked car parked at the mouth of the alley, saw three people in another car also in the alley whom he recognized, and saw two objects flying out of the car. From a distance of only eight to 10 feet away, Grzesiak identified these three men as they exited their car as the men who had robbed him. He saw the police frisk and handcuff the men before he returned to the squad car. The alley had good lighting.
On cross-examination Grzesiak testified that he did not recall that he had previously testified at the pretrial suppression hearing that he had viewed the man on the passenger side of the van for 30 seconds; that he said it had been 10 to 15 minutes from the robbery to his in-alley identification, instead of the six- to seven-minute estimation that he now gave; and that he had previously ...