Honorable James A. Knecht, J., Honorable Frederick S. Green, J. - Concur, Honorable Robert J. Steigmann, J. - Concur. Justice Knecht delivered the opinion of the court.
The opinion of the court was delivered by: Knecht
JUSTICE KNECHT delivered the opinion of the court:
After a jury trial, defendant Tracey Brandon was convicted of robbery, a violation of section 18-1 of the Criminal Code of 1961 (Code) (720 ILCS 5/18-1 (West 1992)). Defendant now appeals his conviction. We affirm.
In April 1994, defendant was charged by information with one count of robbery. In February 1995, a second-amended information additionally charged defendant with one count of theft, a violation of section 16-1(a)(1)(A) of the Code. 720 ILCS 5/16-1(a)(1)(A) (West 1992). The defendant admitted taking roughly $38 from the cash register at the Mobil Super Pantry store in Danville, Illinois, around 4 a.m. on April 4, 1994. Nathan Gray, the store attendant at the time, asserted defendant reached over the counter and removed the money from the open cash register drawer through the use and threat of force. The defendant denied using or threatening force, and it was this issue upon which the trial proceeded.
During the prosecution's opening argument, while giving a narrative of the crime, the prosecutor asserted Gray grabbed defendant's arm as defendant was trying to take the cash out of the cash register drawer. The prosecutor then stated: "The defendant then tells Nathan Gray, 'Let go of my arm, or I am going to kill you.'" At the close of the prosecution's opening argument, defense counsel objected to the statement and asked for a mistrial, or at least a continuance, because the statement had not been disclosed to the defense. The prosecutor responded Gray had moved but his new address had been disclosed to the defense and Gray had been available to the defense. The prosecutor also pointed out page A11 of the State's discovery disclosure. This page contained the final portion of a report by Investigator Bruce Stark, which in turn contained the information Stark derived from the manager of the Super Pantry, Brenda Boggess. The report states: "Brenda stated that Nathan was upset about the man threatening to kill him. He had told the manager that the man was [sic] threatened him twice while there." (Emphasis added.) The prosecutor also pointed out the State disclosed to defendant the fact Gray alleged as he chased the defendant out the store, defendant turned, reached into his pocket, and declared "I am going to fuck'n' kill you." The trial court denied defendant's motion for mistrial, but told defense counsel, "If you wish to have time if Mr. Gray wishes to speak with you prior to the commencement of your opening statement, you may have it." This was the trial court's offer. The prosecution did not offer to tender Gray to the defense or offer to facilitate the defense talking to Gray. Defense counsel, without expressly accepting or declining the offer, proceeded with opening argument.
At trial, Boggess testified roughly $38 was missing from the register when she arrived at the Super Pantry. When the prosecutor asked "Why were you there at the time?", she replied "Nathan Gray had called me and said he had just gotten robbed." Defense counsel objected to the conclusion disclosed as hearsay, and the prosecutor responded the statement went to the course of conduct of Boggess. The trial court overruled the objection.
Gray testified he was working at the Super Pantry the early morning of April 4, 1994. The prosecutor asked Gray, "Could you tell us what happened [on April 4]?", to which Gray replied "I was robbed." Defense counsel objected to the statement as a conclusion, but the trial court overruled the objection.
Gray explained defendant approached the counter with some orange juice and bubble gum. He rang the merchandise up, told defendant the price, and took a dollar from defendant to pay for the merchandise. When Gray opened the cash register drawer to give defendant his change, defendant reached across the counter into the drawer and grabbed some of the money. Gray put his hand on top of defendant's and had a brief "tug of war" with him over the money. At this point defendant stated, "'Give me the money and let me go or else I will kill you.'" Defendant's hand slipped out of Gray's hand, and defendant ran out of the store still holding the money. Gray chased defendant around to the side of the building. Defendant slipped and fell, and as he was standing up, he put his hand in his jacket side pocket and stated "'I am going to kill you.'" Gray immediately ran back into the store and called the police.
During the direct examination of Gray, the following colloquy also occurred:
"Q. [by Assistant State's Attorney Bradley Gerlach:] Okay. did you have an occasion to see the Defendant at the Super Pantry a little while after that, after the --after you were robbed?
A. After I was robbed, did I see him again?
A. When the police brought him back.
Q. Okay. And about how long was it after ...