Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Sulski, Judge, presiding.
JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 6, 1986.
Following a jury trial, defendant Karlton Von Lee (Von Lee) was convicted of attempted armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-4), aggravated battery based upon great bodily harm (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a)), aggravated battery based upon the use of a deadly weapon (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)), and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-1 et seq., 12-4(b)(1)), and sentenced to five years' imprisonment for the attempted robbery conviction. Von Lee's co-defendant Melvin Lee Dotson (Dotson) was convicted of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4) in addition to the offenses stated above, and was sentenced to concurrent terms of eight years' incarceration for attempted murder and five years' imprisonment for attempted armed robbery. Both defendants appeal from their convictions, raising the following questions for our review:
1. Whether Von Lee was properly found guilty beyond a reasonable doubt based upon the theory of accountability for the conduct of Dotson;
2. Whether Von Lee's trial counsel was incompetent, thereby depriving him of effective assistance of counsel, because his trial attorney allegedly failed to argue that Von Lee's prior conviction of robbery was inadmissible under the standard set forth in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695;
3. Whether the prosecution denied Von Lee a fair trial on the ground that the assistant State's Attorney improperly commented in closing argument on Von Lee's post-arrest silence;
4. Whether the trial court committed reversible error in denying Von Lee's motion for a mistrial based upon the delay caused by the trial judge's illness;
5. Whether Dotson was denied a fair trial on the ground that the prosecution systematically sought to exclude blacks from the jury.
We affirm the convictions of both defendants.
Defendants, both black males in their early twenties, were convicted for the shooting and attempted robbery of Lawrence Smith (Smith), a white male in his middle fifties, at approximately 4:40 a.m. on June 25, 1980, while Smith was waiting for a Chicago Transit Authority bus at the corner of Damen and Grand Avenues in Chicago.
Smith testified at trial that on the day in question, he was waiting for a bus in order to go to his place of employment at a factory where he worked the morning shift (7 a.m. to 3:30 p.m.). As he was waiting for the bus, two black males, later identified as Dotson and Von Lee, approached the stop. The two men approached Smith and stood on either side of him, roughly one foot away from him. Smith moved 10 to 15 feet away from them. The two men then spoke to each other, although Smith did not hear the substance of the conversation. One of the men asked Smith for a cigarette, but Smith responded that he did not have any. Von Lee then went across the street to a young white male who was standing on that side of the street. Dotson remained to the side of Smith. Von Lee spoke to the man on the other side of the street briefly and then returned to the side on which Smith and Dotson were standing. Dotson produced a gun, pointed it at Smith, and announced that this was "a stick-up." Dotson was roughly six inches to a foot away from Smith. Smith told Dotson he "did not have anything" and began to turn to move away. Smith saw the gun, began turning, and heard the gun discharge. He was shot once in the back hip pocket. Smith identified a .38-caliber, nickel-plated revolver introduced into evidence at trial as the weapon Dotson had displayed in announcing the robbery on June 25.
Smith described one of his assailants as approximately 5 feet 6 inches tall, 150 pounds, black of medium complexion, in his early twenties, and wearing a dark sweater and pants. He had no facial hair and had a scar on the right side of his face. Smith identified Dotson in court as that individual. Smith described the other assailant as approximately 6 feet tall, 160 pounds, black with a dark complexion, in his early twenties, and wearing a dark shirt and light pants. He had no facial hair. Smith identified Von Lee as this other individual.
Smith testified that, following the shooting, he ran to a marked police car stopped on Damen Avenue south of Grand. There were two uniformed Chicago police department officers in the car. Smith informed them that he had just been "shot and robbed." He got into the police car and gave the officers a description of Von Lee and Dotson and the location of the incident. The officers broadcast the information over the radio.
Smith stated that the group drove east on Grand Avenue from Damen about one block. They then went two blocks south of Grand, and encountered squad cars, police officers, and the two defendants. Smith identified them at that time as his assailants. Smith was then transported by the two officers to St. Mary's Hospital, where he was treated and released. Smith testified that the bullet has never been removed.
Officer Holec of the Chicago police department, who was one of the officers in the car to which Smith ran on the morning of the incident, testified at the trial. He testified that at approximately 5 a.m. on June 25, he and his partner were in a marked police car at the corner of Ferdinand and Damen at the traffic stop. The officers were approached by a young white male, and then by Smith. Smith told the officers he had just been shot and robbed, got into the car, and gave the location of the incident and a description of the two perpetrators. Holec simulcasted over the radio the nature and location of the incident and the description of the assailants to other police vehicles in the area. Officer Holec and the others then proceeded in the police car to Grand and Damen. Upon receipt of a transmission from the radio dispatcher, the officers proceeded to Kinzie and Damen, which was roughly two blocks from the scene of the crime. Roughly three to four minutes had transpired since Smith's arrival at the police car. When Holec and the others arrived at Kinzie and Damen, they saw one unmarked police car, two investigators of the Chicago police department, and two men in police custody. Smith got out of the car, took a few steps to where the investigators had apprehended two men, and identified the two men in custody as the individuals who had shot and robbed him. Officer Holec identified the defendants in court as the two individuals arrested at Kinzie and Damen and identified there by Smith on June 25. He testified that he and his partner then took Smith to St. Mary's Hospital for treatment.
Detective Nielson of the Chicago police department testified that in the early morning hours of June 25 he was working with his partner in the city of Chicago. Both were in street clothes, in an unmarked police car parked on Damen between Hubbard and Kinzie, conducting surveillance in an unrelated matter. At roughly 5 a.m., they received a radio broadcast regarding a robbery. They then noticed two men who matched the description given in the radio broadcast. The two men were running westbound on Kinzie. They were running alongside each other, and ran in the sight of the officers for roughly three-quarters of a block. Detective Nielson was in the driver's seat of the car. He pulled the vehicle up in front of the two men, into the intersection of Kinzie and Damen. Detective Nielson identified the two defendants in court as the individuals he had seen running on Kinzie.
Detective Nielson testified that when he pulled the car up in front of the defendants, he and his partner got out of the vehicle, informed the two men that they were police officers, and told them to stop. Dotson was stopped on the driver's side of the vehicle, toward the rear of the car. Nielson saw that Dotson had his right hand behind him and that Dotson threw a gun toward the rear of and underneath the vehicle. Nielson arrested Dotson and recovered the weapon three to four feet away from Dotson. He testified that the gun was a .38-caliber revolver with a nickel plated finish. Nielson further stated that he examined the weapon and noticed that one round of ammunition had been expended and one had a dented primer as though someone had attempted to fire it but it had not discharged. Nielson identified the gun at trial as the one he had recovered on June 25. It was the same weapon previously identified by Smith.
Detective Nielson testified that on the morning of June 25, Dotson was wearing a brown shirt and black pants and that he had a scar on the right side of his face. He stated that Von Lee was wearing a black shirt and grey pants. Nielson testified that his partner, Detective Manno, arrested Von Lee approximately 15 to 20 feet away from the car. He also stated that when Smith arrived at the scene he pointed out both defendants and said they were the individuals who shot him. Detective Manno's testimony was substantially similar to that of Detective Nielson.
Von Lee testified that at roughly 3:45 a.m. on the morning of June 25, he left his home on the southwest side of Chicago to go to his former employer's to see if he could do some day work for them. He stated that his employer was located in the northwestern vicinity of the city of Chicago. Von Lee stated that he walked to Ashland, caught a bus at 43rd Street and transferred to the elevated platform. He took the Englewood elevated to the Howard line going north. Von Lee testified that he intended to get off the train at State and Lake but fell asleep. He awoke later and got off the elevated at Damen. He then started walking south on Damen Avenue and stopped to wait at the bus stop at Grand and Damen. Von Lee testified that he was travelling alone during the entire period of time.
Von Lee stated that when he arrived at the stop, a white man, whom he identified in court as Smith, was at the stop. He stated that an older black man with a cane was also there. Von Lee testified that he walked past and in front of both of these men and stood at the stop near the curb of the street. When a white man came across Grand, Von Lee stepped into the street. Shortly thereafter Von Lee heard a shot and saw a flash out of the corner of his eye. He ran away because he was frightened. He ran south on Damen, by himself. He encountered the officers at Kinzie and Damen, and was stopped and arrested. Von Lee stated that when he tried to speak to the officers, they told him to keep his hands on the car.
Von Lee testified at trial that in 1977 he pleaded guilty to aggravated battery. He also testified that he never spoke to Smith while he was at the stop and denied any involvement in the incident. On cross-examination he stated that when he arrived at the bus stop there were both a black and a white man on the other side of the street. He further stated that the black man came across to the side of the street where he was standing, and that thereafter the white man also came across the street. Von Lee stated that he stepped into the street when this second individual crossed Grand Avenue to the side of the street on which he was ...