Appeal from the Circuit Court of Cook County; the Hon. James
M. Schreier, Judge, presiding.
PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants Joseph Walker and Phillip Love were found guilty of two counts of armed robbery and one count of aggravated battery. (Ill. Rev. Stat. 1983, ch. 38, pars. 18-2, 12-4.) Both defendants were sentenced to serve 17 years in prison for the armed robberies and five years for the aggravated battery, the sentences to run concurrently. The appeals of Walker and Love have been consolidated by this court.
On appeal, Walker argues: (1) his prosecution for one count of armed robbery by information was improper; (2) he was denied his right to due process where the State failed to inform him that two co-defendants had made judicial confessions that exculpated him; (3) the identification of him as one of the offenders was so inherently suspect as to require reversal; and (4) his sentence is excessive. Love raises the following arguments: (1) the trial judge erred when, after accepting his guilty plea and sentencing him, he allowed the withdrawal of the plea and did not recuse himself; (2) the court permitted him to represent himself without admonishing him in accordance with Supreme Court Rule 401 (87 Ill.2d R. 401); (3) he was deprived of a fair trial by being allowed to represent himself pro se; (4) the prosecutor's remarks during closing argument were reversible error; and (5) his sentence is excessive. For the following reasons, we reverse and remand the conviction of Walker, and affirm the conviction and modify the sentence of Love.
Testifying for the State at trial was Raphael Perez, who stated that at approximately 4 a.m. on February 20, 1982, he was with a group of people in a club at 1350 West 51st Street in Chicago. At that time, defendants Love, Walker and a third man named Jerry Rodriguez entered the club and announced a holdup. Walker, who was masked, took a gun from Rodriguez and ordered everyone in the club to lie down. Perez refused to do so, and Love struck him on the forehead with a pool cue and took a watch and chain from him. Walker, Love and Rodriguez proceeded to rob everyone in the club and then left. The following day, Perez identified Love from a lineup as the man who struck him with the pool cue and also identified the watch that had been taken from him.
On cross-examination, Perez testified that Walker wore a ski mask over his face while he was inside the club, but that when Walker first entered the club he was wearing the mask only as a hat. Additionally, prior to leaving the club, Walker took off the ski mask, allowing Perez to again see his face.
Celso Medina, the club's owner, testified that he was at the club at the time of the robbery. Rodriguez, who was the first to enter, held a gun to Medina's head. Rodriguez was followed by an individual whom Medina identified in court as Love. Medina stated that behind Love was a third man who wore a mask on top of his head as he entered the club, but that he pulled the mask down over his face during the commission of the robbery. The masked man took the gun from Rodriguez and told everyone to lie down. When Raphael Perez refused to do so, Love struck Perez with a pool cue. The three men then robbed everyone and left the club. The masked man raised his mask as he left. Later that day, Medina identified Rodriguez and Love from police photographs as two of the robbers. He later viewed two lineups and again identified Rodriguez and Love. He was not certain about the third man, but stated at the lineup that Walker was wearing clothes similar to those which had been worn by the masked man.
Carlos Rivera testified he was also present in the club during the robbery. He identified two of the robbers as Love, whom he knew as "Little Joe," and Rodriguez, whom he knew as "Duck." He stated that one of the robbers wore a mask during the robbery, but did not wear the mask over his face as he entered the club. The man with the mask held a gun while Love hit Perez with a pool cue. Love then took Rivera's rings and gold chain. Rivera testified that the following day he saw two lineups and identified Rodriguez, Love and Walker as the robbers. After the lineups, Rivera was shown some jewelry and identified one of his chains. Rivera stated on cross-examination that prior to this incident he had seen Walker in the neighborhood on numerous occasions and knew him as "Joe." He admitted he was not sure that the masked man was Joe.
The last witness called by the State was Chicago police officer Daniel Mallon, who stated that the victims identified Love and Rodriguez individually from photographs as two of the robbers. Officer Mallon then proceeded to 71st Street and South Shore Avenue where he spotted Love, chased him on foot and eventually apprehended him. A search of Love revealed a watch which was later identified by Raphael Perez. Further investigation of the area resulted in the arrest of Rodriguez, who was sighted at or near 7111 South Shore Avenue standing with a man matching the description of the third person involved in the robbery. This third suspect was Walker. At the time of the arrest, Walker had in his possession a gold chain which was later identified by Carlos Rivera as having been stolen from him during the robbery.
Chicago Police Detective James Doyle was called as a witness by Walker. Doyle testified he conducted the lineup containing Walker and that Perez was the only victim that identified Walker as a participant in the robbery. On cross-examination by the State, Doyle stated that Carlos Rivera said Walker looked like the third man, but could not make a positive identification.
Walker also called as a witness Anthony Coria, who testified he was present during the robbery. He stated that the man who wore a mask during the robbery never removed it. Coria was shown a group of police photographs at trial, but could not positively identify anyone.
We first address Walker's arguments that the prosecution of him by information for the armed robbery of Carlos Rivera was improper because there was a finding of no probable cause at the preliminary hearing.
• 1 In Illinois all prosecutions of felonies shall be by information or indictment. (Ill. Rev. Stat. 1983, ch. 38, par. 111-2.) A finding of no probable cause at a preliminary hearing does not bar subsequent indictment. (People v. Wirth (1979), 77 Ill. App.3d 253, 395 N.E.2d 1106.) Here, the record reveals that after the finding of no probable cause as to Walker at the preliminary hearing, the State went before the grand jury and obtained a multiple count indictment against Walker. However, prior to trial, the State informed the court that the indictment in the court file failed to contain a count charging Walker with the armed robbery of Carlos Rivera. The State asserted that the absence of the count was due to a clerical error and offered to reindict on the missing count. The court suggested, in the interest of expediency that, if there was no objection by Walker, the State should file a single-part information and consolidate it with the indictment. The court asked Walker's attorney if he objected to the filing of the information and he responded no. The court then asked Walker's attorney if he had any objection to consolidating the information with the pending indictment, to which he responded, "No objection." At no time during trial did Walker make any objection to the filing of the information. Nor did he raise the issue in his post-trial motion.
• 2 Section 111-2(a) of the Code of Criminal Procedure of 1963 provides that "[n]o prosecution may be pursued by information unless a preliminary hearing has been held or waived." (Ill. Rev. Stat. 1983, ch. 38, par. 111-2(a).) Given the circumstances set forth above, we find that Walker has waived a preliminary hearing and any objection to the filing of the information.
Walker next contends that his conviction must be reversed because the State failed to inform him of statements made by his two co-defendants which exculpated him. We agree. Walker and his co-defendants Phillip Love and Jerry Rodriguez were charged with armed robbery and aggravated battery. Prior to trial, on July 21, 1982, Love and Rodriguez sought a plea conference with the court. Walker's attorney accepted the invitation to be present, but did not accept whatever offer was made by the State. Instead, Walker's attorney obtained a continuance. The case was then passed for 45 minutes. When the case was recalled, it was called only as to Rodriguez and Love. During the plea conference, the court asked Love and Rodriguez if the factual basis recited by the State was accurate, and the following colloquy occurred:
"THE COURT: Is that about the way it happened? Did you commit this armed robbery, these stick-ups with Mr. Walker and Mr. Love?
MR. RODRIGUEZ: I think your Honor, like it was only me and him and I committed them, you know.
THE COURT: You mean it was only you and him?
MR. LOVE: He is indicating that Joseph Walker had no part in this robbery. Me and Rodriguez was the only defendants involved.
THE COURT: There's no third man?
MR. LOVE: No, it wasn't none at all.