Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
After a trial by the court on a one-count indictment which charged armed robbery, Joseph Ruskey and Robert Piehl were found guilty of robbery and were sentenced to three and four years' imprisonment, respectively. Piehl does not appeal. Ruskey contends on this appeal that the trial court did not comply with the sentencing statute and abused its discretion when it denied his application for probation. The sequence of events in the trial court follows.
The indictment alleged that Robert Piehl and Joseph Ruskey on November 22, 1981, in Cook County, committed the offense of armed robbery, in that they by the use of force and by threatening the imminent use of force while armed with a dangerous weapon took United States currency from the person of Deborah Cregier, in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18-2).
It appears from the record that pursuant to Illinois Supreme Court Rule 402(d), Plea Discussions and Agreements (103 Ill.2d R. 402(d)), the attorneys and the trial court held a conference discussion on the possibility of the State proceeding against the defendants on a reduced charge of robbery. (Ill. Rev. Stat. 1979, ch. 38, par. 18-1.) The conference produced no accord. When the indictment came on for trial on April 24, 1984, the trial court informed the defendants:
"You're charged with armed robbery, for which you could receive a minimum of six and a maximum of thirty years in the penitentiary, or on the other hand, you could be found guilty of a lesser included offense. Do you understand?"
Both defendants responded in the affirmative. The trial court then advised the defendants of their right to trial by jury, which each defendant stated he understood and waived. Each defendant signed a written jury waiver.
The trial was postponed to the following day because of the court's engagement in another trial, which prompted the assistant State's Attorney to advise the defendant Piehl that he could be tried in absentia should he fail to appear. Thereupon, the following colloquy occurred:
"THE COURT: I think he has been advised of that in the part of the right to proceed without him. And I should further state for the record that this discussion today and the execution of the jury waivers were after we had a conference, but no definite commitments were made by the court as to what would happen in a bench trial. You both understand that?
Defendant Ruskey A. Yes."
The trial began April 25, 1985, and produced the following evidence.
DEBORAH CREGIER testified, direct-examination:
She was 27 years old, a school teacher and a part-time cashier at the 7-Eleven store at 3800 North Central in Chicago. She worked the 4 p.m. to midnight shift the night of November 22, 1981, along with Dan, a co-worker. At approximately 9 p.m. she was at the cash register behind the counter, near the door. There were four customers in the store. Cregier identified the defendant Ruskey in court as one of the men who was present in the store at that time. Cregier had seen Ruskey prior to the night of the robbery, but did not know him.
Robert Piehl entered the store and went to the candy aisle and then to the wine department. Cregier thought she would have trouble with Piehl because she would have to ask him for identification for his purchase of wine. Piehl left the wine department and moved to the cash-register area, but did not get in line. At that time, defendant Ruskey moved from the candy aisle to the cash register and Piehl nodded to him to move ahead in the line. Ruskey moved ahead of Piehl in the line and paid for the items he was purchasing. Ruskey remained at the cash register. Piehl moved to the cash register and told Cregier to give him (Piehl) all the money in the register. Piehl had a black gun in his right hand under his coat. The barrel was visible. Cregier began taking money out of the register. Ruskey gave the money in his hand to Piehl. Cregier then gave the money, about $87, from the register to Piehl. Piehl asked Cregier for the money underneath the register drawer. Cregier lifted the drawer and showed Piehl that there was no money there. Piehl then left the store, turned left and proceeded north along Central Avenue toward a gangway next to the 7-Eleven store.
Cregier went to tell Dan, her co-worker, that the store had been robbed. Ruskey told Cregier that he was going home and that she knew where he lived if she needed him. Cregier in fact did not know where Ruskey lived. Ruskey then left the store.
Dan called the police and Cregier gave the police a description of Piehl over the phone. She described Piehl as a white male, in his early 20's, with brown hair and a mustache, about 5 feet 7 inches, wearing a blue jacket and blue ski cap.
The police arrived shortly thereafter and Cregier recounted the robbery events to them. About 10 minutes later, Piehl was brought into the store by the police and Cregier identified him as the robber. Piehl was not wearing the coat and cap that he wore during the robbery. Ruskey returned to the store approximately 12 or 13 minutes after the robbery.
DEBORAH CREGIER testified, cross-examination:
Ruskey had money in his hand and was about to pay her when Piehl took Ruskey's money. Ruskey did not take any money from her. Piehl never pointed the gun at her but kept the gun in his coat.
When the police brought Piehl into the store, Cregier was afraid to identify him and initially said that she was not sure if Piehl was the man. Shortly thereafter, however, she identified Piehl as the robber before the police departed with him. Cregier testified that she had no doubt that Piehl, whom she identified to the police and in court, was the man who held the gun and robbed her. The police brought the gun into the store on the night of the robbery and she identified it. Piehl was not present at that time.
LAWRENCE RYAN, a Chicago police officer, testified, direct examination:
He and his partner, Robert Whiteman, were patrolling in a squad car at about 9:15 p.m. on the night of the robbery. He heard a radio broadcast that an armed robbery had just occurred at the 7-Eleven store at 3800 North Central. A description was given by the dispatcher a male white, brown hair, mustache, wearing a navy blue ski jacket.
Ryan and Whiteman proceeded to the address, drove through the parking lot and began a search of the area for the offender. While driving through an alley, Ryan spotted a figure crouched in a gangway. Ryan observed that he had dark hair and was wearing a blue ski jacket. Ryan stopped the car. The person ran north through the gangway away from the officers. Ryan and his partner exited the car and went through the gangway. They saw the man ringing the backdoor bell and pounding on the backdoor at 5621 Grace, which the officers later learned was Ruskey's residence.
The officers took the man (defendant Piehl) into custody. The people in the house said they did not know the man. The arrest occurred approximately two minutes after the officers began combing the area. Ryan found a navy blue ski cap, a jacket and a fully loaded .45-caliber automatic revolver at the scene of Piehl's arrest.
Within three or four minutes after he arrested Piehl, Ryan took Piehl to the 7-Eleven store and Cregier identified Piehl as the robber.
OFFICER JEROME BOGUCKI testified, direct examination:
He and his partner, Detective Kaupert, interviewed defendant Ruskey at approximately 10:30 p.m. on the night of the robbery. Ruskey told BOGUCKI and Kaupert that he was waiting in line in the 7-Eleven store to make a purchase and a man came in with a gun and took $3 from him. Ruskey was asked to identify Piehl. Ruskey told the officers that Piehl was not the robber. Officer Bogucki then discovered that Ruskey lived at the address at which Piehl was arrested.
Piehl was then questioned. He told the officers that he ran because he was carrying a gun he had just purchased when he heard and saw police cars. The officers then asked Ruskey why Piehl was knocking on his door. Ruskey responded that he was a friend of Piehl's mother, but he did not know Piehl's first name. Ruskey denied participation in the robbery.
At this point, Ruskey was given Miranda warnings and upon further questioning Ruskey admitted that he and Piehl had been driving around in his car and that he knew that Piehl had a gun. Ruskey admitted that he and Piehl went into the 7-Eleven together but that he was surprised when Piehl showed the gun and robbed the store. Upon Officer Bogucki's further questioning of Piehl, Piehl admitted that he and Ruskey rode in Ruskey's car looking for a place to rob and that they looked at several gas stations before deciding to rob the 7-Eleven store. Piehl recounted that they went in, that he took the money and that they were to later meet back at Ruskey's residence.
Bogucki recovered the receipt for the purchase of the gun from Piehl. Ruskey signed a consent-to-search form. The officers recovered a brown holster from the front seat of Ruskey's car where Piehl told them he left it.
JOHN WILSON, an assistant State's Attorney, testified:
He spoke with Piehl and Ruskey the morning following the robbery. Piehl told him that Ruskey visited his house and that he showed Ruskey the gun he had just bought. Ruskey suggested the possibility of robbing the 7-Eleven store and stated that the people there were "kind of dumb." Piehl stated that they drove to the store and he (Piehl) went in. Thereafter Ruskey entered the store. Piehl said that he robbed the store, went to Ruskey's house, which was two or three doors from the store, split the money and left. As Piehl was leaving Ruskey's house he saw squad cars and attempted to re-enter the house. Ruskey would not let him in.
Ruskey confessed to Wilson that he and Piehl had originally planned to rob a gas station but did not go through with it. Ruskey said that when they went to the 7-Eleven store, he thought about backing ...