Appeal from the Circuit Court of Kane County; the Hon. Paul W.
Schnake, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
The defendant, Troy Janes, appeals from his conviction of armed robbery and aggravated battery, raising three assignments of error: (1) his constitutional right to confront witnesses was violated when the non-testifying co-defendant's inculpatory hearsay statement was admitted into evidence, (2) the trial court erred in admitting evidence of defendant's arrest for an unrelated theft offense, and (3) he was denied a fair trial when the prosecutor was permitted to testify as a rebuttal witness and to use his testimony in his closing argument.
The defendant was charged by indictment with the offenses of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18-2) and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, pars. 12-3, 12-4). Co-defendant Tom Potochney was charged with armed robbery and aggravated battery in a separate indictment.
At trial, the victim, Michael Brown, testified that on the evening of January 29, 1983, he was working as a bartender at a local pub. After work early on January 30, he remained at the pub and drank a few beers. On his way home, his car broke down on Jericho Road. He walked to a corner telephone to call his fiancee, who was inside the apartment. On his way to the telephone, a car came near Brown; two men exited the car and began fighting with Brown after an exchange of language. Brown was hit in the back of the head with something, and someone said something to Brown about his wallet. His injuries resulted in hospital treatment and four or five days' bedrest at home. He identified the defendant and his own wallet at trial. He testified he had the wallet in his possession on the night of the incident but, because he was so disoriented, he was not aware his wallet was missing until that afternoon, when the police brought it to his apartment to be identified. Brown further testified he never saw defendant holding anything in his hands. In the course of talking with the authorities, Brown learned that his wallet was missing.
Brown also testified he selected defendant out of a five-man lineup on February 1, 1983. In regard to whether he was told to identify anyone, he responded, "They didn't say I had to." He was impeached with his testimony at the pretrial motion hearing where he was asked whether he recalled anyone stating to him that he was to pick out one of the five people, to which he responded "yes." Further, he testified that, prior to the lineup, he was told "both of them" would be present in the lineup.
Aurora police officer Joseph Stratman testified that on January 30, 1983, at approximately 4 a.m. he responded to a call at Hollyridge Apartments. He found Michael Brown near the rear exit of the apartment building leaning over with blood dripping from his head. Stratman attempted to converse with Brown, but was unable to find out what had occurred because Brown was mumbling.
James Sheldon, a Montgomery fire department paramedic, testified that he had administered medical assistance to Michael Brown at 5 a.m. that morning. In his written report, he indicated that Brown was conscious, oriented and cooperative, and that Brown stated his injuries were the result of an accident, while he testified that Brown was very close to being incoherent, disoriented, and unconscious.
Aurora police officer Douglas Needham testified that on January 30, 1983, he received information that three suspects had a stolen snowblower in their possession and he went to investigate. Officer Needham testified that he booked the defendant and then found a wallet on him which was later identified as Brown's. Defendant had said the wallet belonged to himself. Officer Needham testified that at the time he booked defendant, he was not aware defendant had been involved in an armed robbery.
Detective Robert Cannon of the Kane County sheriff's department testified that on February 1, 1983, he and Detective Atchison executed a search warrant on co-defendant Thomas Potochney's vehicle and found a tire iron lug wrench on the floor near the front passenger seat.
John Marszalek, a Kane County sheriff's deputy, testified to oral statements allegedly made by defendant on January 31 which placed defendant and co-defendant at the scene of the crime and inculpated co-defendant as the person who beat the victim with a tire iron and took the victim's wallet. Deputy Marszalek observed co-defendant at the Kane County Correctional Complex and noticed that his right hand was swollen.
On redirect examination, the prosecutor asked Deputy Marszalek if co-defendant had told him what defendant did with the tire iron that came from the car. Defense counsel objected on the basis that such a statement was hearsay. The court sustained the objection and suggested that the co-defendant should be called as a witness if his testimony was so critical to the State's case. The court then granted the State's request to ask Deputy Marszalek when he learned that co-defendant had exited the car with the tire iron.
When the trial resumed, the prosecutor asked Marszalek the above question, to which he responded that co-defendant stated he had left the car with the tire iron. Marszalek stated the defendant never told him that he left the car with the tire iron, but that he learned from co-defendant that the defendant left the car with the tire iron. The State then rested its case.
Judith Brawka, an assistant public defender who had originally represented defendant, testified for the defense regarding the February 1 lineup. She testified she was present in the viewing room with Assistant State's Attorney J. Brick VanDerSnick, Brown, and Detective Atchison. In observing Brown during the lineup, she noticed no physical reaction by him to suggest recognition of any of the five participants. Brown did not identify anyone in the lineup at that time, and he declined to circle any of the numbers on the piece of paper given to him by VanDerSnick. Brawka asked VanDerSnick if she could be present when Brown talked about the lineup or made his identification, and he agreed. Upon leaving the viewing room, Brown, VanDerSnick and one of the deputies went into another room. As Brawka arrived at this room a few minutes later, VanDerSnick informed her that Brown had identified Troy Janes. VanDerSnick agreed Brawka was not present when Brown made the identification.
Deputy Rick McKiness of the Kane County sheriff's department questioned Michael Brown on the day of the offense, and he stated that a vehicle pulled up to him, two or three subjects exited the vehicle, and they beat him and stole his wallet. Brown was unable to provide Deputy McKiness with any description of the offenders or the vehicle involved. During questioning, Brown was having trouble speaking due to the swelling around his face, and McKiness left Brown's apartment because Brown was in pain and was not able to provide further information.
Sergeant David Wagner of the Kane County sheriff's department testified that he responded to the investigation on January 30. He testified that Brown was not cooperative with the investigating authorities and that an Aurora police officer had relayed to him Brown's statement that he "was in a fight over a girlfriend or something" and that Brown had said his wallet was not taken. Wagner never talked to Brown, and he did not have any personal knowledge of what Brown had said.
On the second day of trial, Assistant State's Attorney VanDerSnick asked to testify as a rebuttal witness because he felt an inference had been raised as to his integrity. Over defense counsel's objection, the trial court granted the State's request.
When the trial resumed, VanDerSnick was sworn and testified to the lineup he conducted. He testified, in response to questioning by another assistant State's Attorney, that he explained to Brown that two suspects had been charged in the case, that they might or might not be in the lineup, and that after viewing the lineup they would go outside and talk about it. In fact, Brown had been told that after the lineup he was to talk to VanDerSnick and the interviewing officer. VanDerSnick admitted they did not go outside and talk about the lineup. Immediately after the lineup he, Brown and Detective Atchison left the viewing room and went into another room down the hallway and around the corner. While Brawka was on her way, but before she arrived, Brown identified defendant, who was in the No. 1 position in the lineup.
Following closing arguments by VanDerSnick, which referred at length to his personal integrity and especially the propriety of his conduct at the time of the lineup, the jury found defendant guilty of one count of armed robbery, ...