Appeal from the Circuit Court of Winnebago County; the Hon.
David F. Smith, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Eugene Flint, was convicted of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(3)) and sentenced to a 75-year term of imprisonment. He appeals, contending (1) that his identification as one of the perpetrators of the offense was not proved beyond a reasonable doubt, (2) that a mistrial should have been declared on the third day of trial when one of the jurors was dismissed and replaced with an alternate because the remaining jurors knew that the reason for the trial court's action was that one of defendant's relatives had approached the dismissed juror and talked about the case, (3) that in closing argument the prosecutor improperly referred to defendant's failure to present evidence on a certain issue, and (4) that the trial court improperly coerced a verdict by requiring the jury to deliberate into the early morning hours after the jury had twice reported that it was deadlocked.
In the early morning hours of August 28, 1983, an armed robbery took place at the Rainbow Tap in Rockford. In the course of the robbery, Donald Parker, the bartender, and Douglas Block, the son of the tavern owner, were shot. Parker died as a result of his gunshot wounds, but Block recovered. James Beer, a patron of the bar, was also present during the robbery. He hid behind a juke box during the shooting and was not injured. At trial the State called four witnesses whose testimony is relevant to this appeal: Margie Day, a patron of the tavern who left shortly before the robbery; Douglas Block, who identified defendant as one of the robbers; James Beer, who was unable to make an identification; and George Ellis, who saw defendant shortly before the robbery in a car which was linked to the offense.
Margie Day testified that on the night in question she was at the Rainbow Tap with her husband. They were drinking beer, and she was "feeling somewhat the effects" of alcohol. At one point in the evening, when she and her husband were the only patrons, a black male entered the bar through the back door. He went to the cooler and got a can of beer. He then set it on the bar and paid the bartender. The individual was wearing tight pants, dark in color, and a vest with a chain. Day testified that one of the pants pockets looked like it had "an outline of a gun in it." Day "punched" her husband, but he did not pay any attention to her so she got up and went to the bathroom. When she came back out, the individual had left.
Day testified that a little while later Douglas Block came into the tavern and brought Day her car keys. She had left them in the car. Block told her that he had seen some blacks going through her car. Block subsequently left the tavern for a while. Shortly after he returned, the Days left. When they left, it was a little before midnight, and Block and Parker were the only ones left in the tavern.
Block testified that he was a Rockford police officer, and that he operated a tow truck service when not on duty. On the night in question he was off duty. At about 10:30 p.m. he towed a car at the request of the sheriff's police. When he finished that job, he drove to his father's tavern, arriving at 11 or 11:10 p.m. He parked his tow truck behind the bar. There was one other car parked there.
Block testified that when he entered the tavern, Parker was tending bar. Also present in the bar were Margie Day, her husband, and a black male. Block testified that he walked over to the Days and watched the black male to see what he was looking for. He was looking around, and then left by the back door.
About five minutes later Block heard a noise outside like a car door shutting. He went outside and saw a "black kid" about 16 years old throwing something on the ground near the Days' car. The young man ran away, and Block went over to the car and picked up the Days' car keys. As he was doing so, he heard the noise of a car going over gravel. He looked up and saw a black-over-white Lincoln pull out of a nearby parking lot with its headlights off. There were four or five black people in the car.
When the car was about a block away, Block got into his tow truck and followed it. While he was following the Lincoln, he observed that its left taillight lens was broken out. He also wrote down its license number on a card which was admitted into evidence. The license number was YKA 764. Block said that the rear license plate, which included the expiration sticker, was properly affixed to the back of the car. Block followed the car until the people in it started looking back at him. Then he returned to his father's tavern, arriving at about 11:30 p.m.
When he returned, the Days were the only patrons in the tavern. They left five or 10 minutes later. Block locked the back door behind them, and Parker took the money out of the drawer and began to count it. The front door of the tavern had previously been locked. While Parker was counting the money, there was a knock at the back door. Parker knew the man at the door, James Beer, so Block unlocked the door and let him in for a fast beer.
At about 12:15 a.m., two black men came in the back door and announced a holdup. Block said that the first one who came in was of medium height and build, and was wearing blue jeans with a blue top. He had on a blue handkerchief with polka dots "just underneath the nose area" and was carrying a chrome revolver in his hand. The other robber was also of medium build. He was wearing a shower cap and a "greenish" medical shirt. He had a full beard and a mustache and was carrying a black snub-nose revolver. Block testified that the second man was Charles Richardson.
According to Block, Richardson went behind the bar. The other robber came over to Block and ordered him, Parker, and Beer to put their hands on the bar. He told them they had better do what he said, or he would kill them. Block testified that the man kept asking him if he was a police officer, and Block said he was not. The man said he would kill Block if he found out Block was a police officer.
Block testified that he watched Richardson get the money bag out of the drawer and take the money out of the cash register. The other robber started hitting Block with the gun and told him to keep his eyes straight ahead. Then Richardson asked Parke where the safe was, and Parker told him. Richardson asked Parker to open it, and Parker replied that he did not know the combination. Richardson then told Parker he would kill him if he did not open the safe. Parker and Richardson then started walking down the bar toward the safe. When they got in front of Block, the other robber told Richardson to check out Block's wallet. Richardson, who had previously put his gun down, reached for Block's wallet and flipped it open. Block's police badge was in the wallet.
At that point, Parker grabbed Richardson, Block grabbed the other robber, and a struggle ensued. Block struggled with the other robber for about three minutes. Then he heard a gunshot. Block, who was being hit in the head with a gun, saw Richardson running toward him so he fell to the ground, pretending to be unconscious. The man Block had been struggling with then stuck his gun in Block's ribs and shot him. Block then saw Richardson come out from behind the bar, and both robbers started to run toward the door. Parker grabbed Richardson's leg, saying something like "you're not going to go," and Richardson shot him in the head. The other robber then jumped over Parker and shot him in the back. The robbers then fled.
Later in the day of the robbery, at 10 a.m., when he was in the hospital, Block was presented five or six photographs by Officer Murphy. Block selected a photograph of Charles Richardson as a picture of the robber who shot Parker in the head. Two days later Block attended a lineup at the Public Safety Building. He again identified Charles Richardson, and he also identified Ray Charles Lambert as "[t]he one that possibly bought the beer." Block stated that on September 27, 1983, he attended another lineup. At that time, he selected defendant as the robber who shot him. Block also identified defendant in court.
On cross-examination, Block stated that during the robbery he focused his attention on the man behind the bar until he (Block) started fighting with the other man. During the ...