APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
543 N.E.2d 259, 187 Ill. App. 3d 371, 135 Ill. Dec. 24 1989.IL.1233
Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and COCCIA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Defendant, Robert Wheatley, appeals from his convictions for armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)) and unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24-1). He received concurrent sentences of eight years' imprisonment for armed robbery and three years' imprisonment for unlawful use of a weapon. On appeal, he raises the following four issues: (1) whether the trial court committed reversible error when it allowed the State to amend its answer to discovery by adding a name to its list of witnesses on the third day of trial; (2) whether he was denied his sixth amendment right of confrontation when a witness' prior inconsistent statement was admitted in evidence; (3) whether he was proven guilty beyond a reasonable doubt; and (4) whether he is entitled to credit for time served in custody prior to sentencing. For the following reasons, we affirm.
Defendant was tried for armed robbery and unlawful use of a weapon by a felon, and his brother, Kenneth Wheatley (Kenneth), was tried for armed robbery stemming from the same incident. Defendant waived his right to a jury trial but Kenneth was tried by a jury. The State presented its witnesses against both defendants with the jury present and the jury was excused from the courtroom when defendant's attorney was cross-examining the State's witnesses. When the State rested its case against Kenneth, he presented his defense to the jury without defendant present. Afterward, the State continued its case against defendant and defendant presented his defense to the trial Judge.
The State's witnesses established the following. Richard Gillis, the complaining witness, testified that on October 9, 1985, shortly before 10:45 p.m., he was walking home from work when he saw two black men standing in front of him on the sidewalk near an alley. One of the men, whom Gillis identified as Kenneth, pulled out a chrome-colored gun and demanded his money. Gillis said, "Alright. I'll give you my money," but Kenneth stated, "Get into the alley." Gillis offered to give him his money where they were but Kenneth again demanded he move into the alley. At this point, the second man led Gillis into the alley while Kenneth also pushed Gillis. They shoved Gillis into a door, and when Gillis hit it, the door flew open. They pushed him into the vestibule area. As Kenneth pointed his gun at Gillis, the second man went through his pockets. At this point, Gillis noticed the second man also had a gun, which was blue or black steel with a rubber band wrapped around the barrel. The second man took $17 from Gillis' pocket and said he knew Gillis had more money. Gillis gave the second man an envelope that he pulled out from his boot containing $140, a $35 check, and a deposit slip from his bank. The deposit slip had Gillis' name, business address, and account number imprinted on it. Pointing their guns at him, the men told Gillis to walk down the stairs and stay there for 5 or 10 minutes. After the men left, Gillis waited a minute or two and immediately called the police when he arrived home at approximately 10:45 p.m.
Sergio Rajkovich, a Chicago police officer, testified that on October 9, 1985, at approximately 11:20 p.m., he and his partner, Reno Baiocchi, were driving in a marked squad car when they observed a vehicle without license plates driving ahead of them and pulled it over. Inside the vehicle were defendant, who was the driver, Ted McLeod, who was the front seat passenger, Kenneth, who was in the back seat behind McLeod, and Vincent Wheatley (Vincent), who was in the back seat behind defendant. Defendant did not have a driver's license and was arrested. When Rajkovich asked the remaining occupants if any of them had a license to drive the car, Kenneth responded that he had a license. McLeod exited the vehicle so that Kenneth, who was in the back seat, could drive. As Kenneth got out of the car, Rajkovich saw a chrome .357 magnum gun lying on the back seat where Kenneth was sitting. The occupants were ordered out of the car and all four men were handcuffed. Rajkovich searched the car and found a bluesteel .22 caliber gun with a rubber band wrapped around it. The gun was concealed under a seat cushion where Vincent was sitting. Both guns found in the car were loaded. On the floor of the driver's side, Rajkovich also found a bank deposit slip with the name "R.W. Gillis" imprinted on it.
The men were arrested and advised of their Miranda rights. At this time, Kenneth admitted that the chrome .357 magnum gun was his and they were in the area delivering phone books. At the station, the men were searched again and $61 was recovered from Vincent and $40 from McLeod.
Rajkovich testified that the four men were arrested approximately seven or eight blocks from where the robbery took place.
At approximately 1 a.m. on October 10, 1985, Gillis viewed a lineup of six persons which included defendant and Kenneth. Gillis identified Kenneth as one of the men who robbed him.
The State then rested its case against Kenneth and requested a continuance of defendant's trial to present additional witnesses against him. Over defendant's objection, his bench trial was continued for six days. Kenneth's jury trial proceeded and defendant's attorney did not participate in the court proceedings when Kenneth presented his defense to the jury.
Kenneth called his brother, Vincent, to testify in his behalf. Vincent testified that on the night in question, Kenneth, defendant, McLeod, and he were delivering telephone books. They made three stops, and each time defendant and McLeod got out of the car to make the delivery. Vincent and Kenneth remained in the back seat of the car. At the last stop defendant and McLeod left the car for approximately three to five minutes with two or three telephone books. When they returned, the group began to drive home. Shortly thereafter, Vincent noticed a police car following them with its emergency lights on. Before pulling over, McLeod handed defendant a gun and defendant handed two guns back to Vincent, telling him to "put them up." Vincent put one of the guns behind him and the other behind Kenneth. Vincent's testimony exculpated Kenneth but inculpated defendant in the robbery.
When the bench trial continued against defendant, the State moved to amend its answer to discovery to add Vincent's name to its list of witnesses. Defendant objected but the trial court granted the motion. The case was continued approximately two more weeks because another State witness was not present in court.
At the next date for trial, the State called Vincent as a witness against defendant. When asked what his name was, Vincent stated, "I do not want to testify in this case, period, because I do not remember." When asked whether he was the same Vincent Wheatley who previously testified at Kenneth's trial he stated, "I don't remember." He admitted defendant was his brother. Vincent testified he did not remember where he lived, whether he owned a car, or whether he was with defendant on the night of the robbery. When asked again whether he remembered testifying previously, he stated, "I don't know, would you stop hassling me, I don't know, can I be excused, Judge?" The court reminded Vincent he was subpoenaed to testify as a witness. When the State asked whether he previously testified at Kenneth's trial, Vincent stated, "I have, did." Later, he again stated he did not remember testifying previously. During Vincent's testimony the trial court offered defendant's counsel the opportunity to speak with Vincent and continue the trial for two days but defendant's counsel declined. After further questioning by the State, Vincent stated he was claiming the fifth amendment. The court found he waived the fifth amendment privilege by testifying previously on the same matter. The State questioned Vincent concerning his prior testimony but Vincent continued to answer "I don't know" or "I don't remember."
Over defendant's objection, the trial court allowed the State to introduce Vincent's prior testimony at Kenneth's trial as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1). The State read portions of Vincent's prior testimony and asked whether he remembered testifying. He continued to answer "I don't remember."
Defendant cross-examined Vincent but he would only answer "I don't remember" to every question. Defendant's attorney then stated, "I can't cross-examine him, that's all that I have, he said I doesn't [ sic ] ...