Appeal from the Circuit Court of Cook County; the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 21, 1985.
After a jury trial in the circuit court of Cook County, Larry Branson was found guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2) and sentenced to 15 years in prison.
On appeal, defendant contends: (1) the trial court erred in not suppressing a pretrial lineup identification allegedly made in violation of defendant's sixth amendment right to counsel; (2) the trial court denied defendant's right to be present at trial and assist in his own defense by failing to take reasonable measures to insure that defendant could hear the proceedings; and (3) the trial court abused its discretion when it refused to appoint experts to examine defendant and when it failed to order a hearing to determine defendant's fitness to stand trial.
At about 10:30 p.m. on September 21, 1982, complainant Vickie Shinner was robbed at knifepoint by a man who took her purse containing money, a packet of photographs of her friends, her checkbook with a check cashing card and her wallet.
On September 23, 1982, two days after the Shinner robbery, at approximately 10:45 p.m., defendant and a white woman and another black man were arrested at 1164 North Clark Street in Chicago. Defendant was charged with theft from person for stealing seven dollars from a Chicago police officer. (Ill. Rev. Stat. 1983, ch. 38, par. 16-1.) A custodial search of the three persons revealed that defendant was carrying the photographs of Vickie Shinner's friends which had been in her purse on the night that she was robbed. Complainant's checkbook and check cashing card were found on the woman arrested with defendant.
The next day, while in custody and represented by counsel on the theft charge, defendant was transported to the Area Six police station so he could appear in a lineup conducted as a result of the robbery investigation. At approximately 4:20 p.m., defendant was placed in a lineup with four other black men who were between the ages of 25 and 40, of medium build, ranging in height from 5 feet 10 inches to 6 feet 1 inch and all with some degree of facial hair. At the time of the lineup, defendant had not yet been charged with the Shinner robbery, but after Vickie Shinner picked defendant out of the lineup, he was then charged with armed robbery in the instant case.
Defendant filed a pretrial motion to suppress the identification. There was some question at the pretrial hearing on the motion regarding whether defendant had requested that his attorney be present at the lineup and whether his attorney had been notified of the lineup. At the suppression hearing, defendant testified that he asked police officers to contact his attorney prior to his being placed in the lineup. He also testified that he was viewed twice in the lineup and that a police officer told him that the complaining witness had not picked anyone out of the first lineup.
Detective Frank Kajari, one of the officers who conducted the lineup, testified that prior to the lineup, between 3:15 and 3:45 p.m., defendant's attorney, Len Maslowsky, had called the Area Six office. Kajari testified that he could not recall if defendant requested his attorney, but he told Mr. Maslowsky on the telephone that a lineup would be held at 4 p.m. and that he could attend if he wished. Although the lineup was delayed for 20 minutes, Mr. Maslowsky never appeared at the lineup. Detective Kajari also testified that Vickie Shinner immediately identified defendant at the lineup.
Attorney Maslowsky took the stand and stated that he was never notified of the lineup. He testified that at 2 p.m. on the day of the lineup he received a telephone call from a police officer who told him that defendant had asked the officer to contact his attorney. When he asked to speak with defendant, he was told that defendant was in transit to the Area Six police station. According to Mr. Maslowsky, the officer said that he would have defendant call his attorney. Two or three hours later, the officer allegedly called to inform Maslowsky that defendant had been identified in a lineup. After hearing this testimony and argument by counsel, the trial court denied the motion to suppress, stating that defendant had no right to counsel at the lineup because he had not yet been charged with the crime for which he was placed in the lineup.
Defendant also filed pretrial motions for the appointment of medical experts to examine defendant and for a hearing on defendant's physical fitness to stand trial. In response to these motions, Sergeant Gerald F. Blazek, the sheriff's watch commander at Cook County Hospital, testified for the prosecution that defendant was in the custody of the sheriff's office while he was in the hospital for renal dialysis treatments. Sergeant Blazek testified that defendant had been repeatedly hospitalized and had previously refused dialysis. The sergeant also stated that on one occasion he had asked defendant why he was back in the hospital and the defendant replied that "it was either a third or fourth time armed robbery charge and he is too old to do any time in the penitentiary, he couldn't do twelve years or more." The trial court then denied defendant's motion for the appointment of expert witnesses to be paid for by the court. Defendant subsequently withdrew his motion for a fitness hearing because he was unable to pay for expert witnesses.
At the next trial date on May 2, 1983, the proceedings were delayed because defendant had been hospitalized for emergency treatment. The assistant State's Attorney raised the possibility that defendant had intentionally injured himself. In response, defense counsel again requested that experts be appointed to review defendant's mental and physical condition. When defendant arrived in court, however, there was no indication that he had voluntarily injured himself. The Cook County Hospital medical records librarian testified that defendant had been admitted to the hospital because he had complained of shortness of breath and had undergone dialysis because fluids had collected around his heart. After this testimony the trial court stated that it would not appoint experts because defendant was already being treated by doctors. When defense counsel indicated that defendant was being treated by residents and interns who could not be expert witnesses, the court stated that they could be brought in for whatever reason.
In connection with the pretrial motions regarding defendant's fitness, the court also heard evidence indicating that the 29-year-old defendant suffered from a hearing disability and that he had been diagnosed as having hypertension, epilepsy and a kidney ailment which required dialysis treatments. In addition, the court had before it medical reports which showed that defendant had previously refused medical treatment and had once attempted suicide. The supplemental record included reports by two staff psychiatrists from the Psychiatric Institute who had examined defendant some four months before trial and found him to be mentally fit for trial. At various times during the pretrial hearings, defendant stated that he could not hear too well, but he did not renew his complaints during the trial.
At trial, complainant Vickie Shinner testified that on the night of the robbery she left a girlfriend's apartment and was walking toward her car which was parked on the 500 block of Grant Place in Chicago. She was walking west on Grant Place when she noticed a man approaching her. Shinner testified that the man grabbed her by the shoulders and demanded her purse. When she screamed, the man pulled a knife and held it to her throat, threatening to cut her throat if she said another word. With his left hand around Shinner and his right hand holding the knife to her throat, the man walked her up and down one-half of a block before he pushed her up against a fence and then forced her into a ...