author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Dixon, Defendant-Appellant.
    (No. 57885;
    April 24, 1974.
    Jeffrey Haas, of Chicago, and Kathy Auchincloss and Peter Schmiedel, Senior Law Students, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:,

The defendant, James Dixon, was charged by indictment with the murder of Ronald Thompson. Defendant was tried in a bench trial in the Circuit Court of Cook County before the Honorable Daniel Ryan. A directed finding of not guilty was made as to the co-defendant, Larry Littleton, while defendant James Dixon was found guilty of murder and was sentenced to serve a term in the penitentiary of not less than 25 nor more than 60 years. James Dixon appeals this conviction claiming that:

(1) He was not proven guilty beyond a reasonable doubt;

(2) He was denied a fair trial and due process of law by the State’s failure to produce certain police reports in response to defendant’s discovery motion;

(3) The trial court erred in not granting defendant’s motion for a new trial based on newly discovered evidence; and

(4) The sentence imposed by the trial court was excessive.

The facts as presented at trial are as follows:

Just after midnight on the evening of April 24-25, 1971, Ronald Thompson was shot to death on a corner at the intersection of 93d and Union on the south side of Chicago. Ronald’s 15-year-old brother, Mitchell (also referred to as “Sylvester”) testified as the only occurrence witness presented by the State. On the night of the shooting Mitchell was at his home with several friends. He testified that his mother was attending a wedding reception that evening and had left him with strict instructions not to have any company over while she was gone. Since he was afraid that his mother might come home at any time, and find his friends there in defiance of her orders, Mitchell stated that every time he saw a car’s lights or heard a car pass, he would go to the window to see if it was his mother returning.

At about 12:30 that evening, Mitchell said he saw a car’s lights and went to the window in time to see a car (not his mother’s) coming down the street at about 45 miles per hour. At the same time he saw his brother, Ronald, near the intersection of 93d and Union, walking south on 93d, approximately two houses north of the intersection. Mitchell’s vantage point was four houses south of the intersection, where a street light was located. Mitchell turned from the window and walked back into the room when hé heard a car “screech”. He returned to the window to see two boys get out of a car. He recognized one as Larry Littleton and the other as a person known to him as “Looney”. They talked to Ronald for a few seconds when Ronald began to walk past them. Mitchell then stated that he saw “Looney” take a shotgun from under his coat and heard him yell, “Gangster thing.” He further testified that as he ran from the window to warn his brother he heard a shotgun being fired. Mitchell ran down to the doorway of his home and as he opened it Larry Littleton, a boy called “Lumberjack” and the defendant ran past. As defendant passed the doorway, he pointed the shotgun in Mitchells direction. MitcheH feU to the floor and closed the door. MitcheH later identified a police photograph of “Looney”, the person he saw with the shotgun, as the defendant James Dixon.

The defense presented defendant’s own testimony, in which he denied taking part in the shooting and stated that he was at a wedding reception from about 10:45 P.M. until 3 A.M. on the night of the incident. Five persons, who were present at the wedding reception at 10330 South Peoria that evening testified to corroborate defendant’s alibi.

In rebuttal, the State offered the testimony of Officer James Davis. The night before he testified at trial, he drove from 93d and Union to 10330 South Peoria. Driving at 30 miles per hour, the trip took Officer Davis less than 5 minutes. No further evidence was presented by either side and defendant was found guilty of murder.

Some 3 weeks after defendant was found guilty, his counsel filed a “Motion for a New Trial based on Newly Discovered Evidence.” The focus of this motion was a statement given by one Wendell Robinson to the Chicago Police Department after the shooting. Robinson had been present at the home of MitcheH Thompson during the evening of April 24-25, 1971. He left just prior to the incident, but had heard what was apparently the shot that killed Ronald Thompson. A discovery motion was filed prior to trial which asked, inter alia, that the following be turned over to the defense:

“1. A list of the names, and the last known residence and business addresses and telephone numbers of the following persons;
A. All persons whom the State knows to have knowledge of the aHeged offenses.
B. All persons whose testimony would be favorable to the defense.
* * *
2. A full and accurate copy of all written, transcribed, noted or recorded — as well as the substance of all oral — statements and Grand Jury Testimony that were given by or taken from each person specified in Paragraph 1 above, * * *".

The Chicago police spoke to Wendell Robinson in connection with the shooting of Ronald Thompson on April 25, 1971, and a statement was taken from him. Neither this statement or Wendell Robinson’s name and address were included in the State’s response to the above motion. The record does not show that they were given to the defense at any time prior to the end of the trial. Wendell Robinson testified as a witness during a hearing on the motion for a new trial. The motion was denied, as was a later motion for a new trial based on other grounds.

This court is of the firm opinion that the statement of Wendell Robinson to the police regarding the incident should have been turned over to defendant prior to trial. Mitchell Thompson, the sole witness for the State, testified that he heard a car, heard its brakes “screech” and saw two boys emerge. One of these, who Mitchell saw with a shotgun, was the defendant, James Dixon. Mitchell did not see the shooting of his brother, but saw defendant run past his door just a short time later. The statement given to the police by Wendell Robinson is to the effect that he saw a group of boys on foot (not in a car) go to the comer where the shooting occurred, he heard the shot and then saw them flee. He did not see or hear the car that Mitchell Thompson described, or hear a shout of “Gangster thing” as Mitchell Thompson related as having preceded the sound of the shotgun blast. (Wendell Robinsons statement placed him close enough to the scene of the shooting that he should have been able to hear these things take place, if they in fact took place.)

In Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S. Ct. 1194, the Supreme Court held that “* * * the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (373 U.S. at 87.) The Illinois courts have adopted the Brady rule (People v. Hoffman, 32 Ill.2d 96, 203 N.E.2d 873) and have expanded upon it. (See also People v. Murdock, 39 Ill.2d 553, 560, 237 N.E.2d 442 and People v. Holiday, 47 Ill.2d 300, 303, 265 N.E.2d 634.) In the instant appeal then, our inquiry must be one to determine whether Wendell Robinson’s statement was favorable to the defendant, James Dixon.

The statement in question is quite clearly favorable to the defendant. The State’s entire case consisted of the testimony of one witness, Mitchell Thompson. The statement of Wendell Robinson gives a version of the incident which differs in several important details and was, therefore, favorable to the defendant in that it reflected adversely upon the credibility of the State’s sole witness. Under the Brady rule, these reports had to be turned over if they existed at the time they were requested by defendant. (Even though it claims that these reports were not “deliberately withheld by the prosecution”, the State’s brief concedes that, “there is no doubt that the police reports were in existence at the time of trial.”) As Justice Douglas stated in Brady, the obligation to turn over evidence exists “irrespective of the good faith or bad faith of the prosecution.” (373 U.S. at 87.) It would then be no excuse that the police had inadvertently or deliberately failed to give these reports to the prosecution, or that the particular prosecutor trying the case did not have these reports in his possession. (Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964). See generally, 34 A.L.R. 3d 16, and the cases cited therein.) To hold otherwise would be to encourage conduct evasive of the rules requiring disclosure of evidence favorable to defendant. Our courts have consistently condemned efforts to evade those rules. “[T]he State has no interest in interposing an obstacle to the disclosure of facts unless it is interested in convicting accused parties on testimony of untrustworthy persons. * * * Justice requires full and fair disclosure.” People v. Cole, 30 Ill.2d 375, 381, 196 N.E.2d 691. See also People v. Cagle, 41 Ill.2d 528, 533, 244 N.E.2d 200, and People v. Moses, 11 Ill.2d 84, 89, 142 N.E.2d 1.

The State argues that the defense did not show due diligence, since they knew from Mitchell Thompsons testimony at trial the approximate area in which Wendell Robinson lived and that he had been at the apartment prior to the shooting, though he left sometime before.

We reject the State’s argument. We know of no cases which hold that the prosecution’s burden to turn over evidence is excused when the defense has sufficient time prior to cross-examination to go out and find the same evidence through its own investigation. The two cases cited by the State as support for this proposition are not on point. In People v. Raymond, 42 Ill.2d 564, 248 N.E.2d 663, no request had been made prior to trial and the defendant had personal knowledge of the specific report in question. The court held that disclosure of certain evidence is not required where, “* * * the accused is aware of its existence and specific contents.” (42 Ill.2d at 568.) The same situation occurred in People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475, also cited by the State, though there was also some question raised as to whether the evidence was favorable to the defendant.

Even if we accept arguendo the State’s contention that a defendant is required to go out and secure this type of evidence on his own, there was nothing in the above witness’ testimony that would have put the defense on notice that the evidence even existed. Mitchell Thompson did not state that Wendell Robinson gave a statement to the police. The testimony was simply that Robinson, along with several others, was present with MitcheU Thompson that evening and that he had left before the shooting. This is hardly sufficient to put the defense on notice that Robinson even had any personal knowledge of the shooting and surely not enough to indicate that he was aware of anything which could have been favorable to the defense.

The State further submits that even if the police reports were favorable to the defendant, the reports were produced at the hearing on the motion for new trial and Wendell Robinson testified at this hearing. It is argued, therefore, that since the trial court heard this new evidence, that any prejudice to defendant was cured by this procedure. The State considers that at this hearing, “[t]he trial court re-opened the case ” * *” and found the testimony of Wendell Robinson not to be credible.

We do not agree that the hearing on the motion for a new trial was sufficient to render the non-production of the evidence prior to trial such that there was no violation of defendant’s right of due process. The defense had a right, as noted above, to have this evidence made available to it at the time of the request. It is not this court’s purpose to speculate as to what use the defense could or would have put the evidence in question, or what additional evidence it may or may not have led to, had it been turned over prior to trial. The fact remains that this evidence was not available, as it should have been, to defendant when his defense at trial was being planned and prepared. The belated turnover of these reports after trial was sufficient to deprive defendant of their effective use and in no way cured the harm done by failing to turn them over to defendant initially. (See People v. Green, 133 Ill.App.2d 244, 272 N.E.2d 721, citing People v. Cagle, supra, at 533.) We agree with the reasoning of the Supreme Court in Jencks v. United States, 353 U.S. 657, 1 L.Ed.2d 1103, 77 S. Ct. 1007, where a petitioner was seeking to have certain reports of undercover agents turned over to him for possible use at trial. It was held that:

“Because only the defense is adequately equipped to determine the effective use for the purpose of discrediting the Government’s witness and thereby furthering the accused’s defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.” 353 U.S. at 668-669.

We are of the opinion that the failure of the State to produce the statement of Wendell Robinson in response to defendant’s request denied him his right to due process and a fair trial. The judgment of the Circuit Court of Cook County must then be reversed and defendant must be given a new trial in accordance with this opinion. It is therefore unnecessary to consider the other issues raised by defendant on this appeal.

The judgment of the Circuit Court of Cook County is reversed and the cause, remanded for a new trial.

Reversed and remanded.

DIERINGER and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Andre Jackson, Defendant-Appellant.
    (No. 58531;
    First District (4th Division)
    April 24, 1974.

      James J. Doherty, Public Defender, of Chicago (WiHiam C. North, John T. Moran, Jr., and Bernard L. Schwartz, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. GiHis, Mariana Twist, and Nicholas Iavarone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Andre Jackson, was charged in an indictment with the murder of William Adamore, the armed robberies of Shirlene Armour and Robert Bell, aggravated battery causing great bodily harm to Robert Bell, aggravated battery using a deadly weapon. He was found guilty of all the charges after a jury trial. The trial court sentenced him to a term of not less than 30 nor more than 60 years on the murder charge, 10 to 15 years on the armed robbery of Shirlene Armour and 10 to 15 years on the armed robbery of Robert Bell, and 5 to 10 years for aggravated battery causing great bodily harm. All of the sentences are to run concurrently.

The defendant contends on appeal that (1) his right to a fair trial was denied by certain prosecutorial misconduct, (2) the common law record improperly reflects that he was sentenced for aggravated battery using a deadly weapon, and (3) his sentence for aggravated battery causing serious bodily harm is excessive.

The evidence shows that at about 11:15 P.M. on August 6, 1970, Barbara Barksdale, the manager, and Shirlene Armour, her sister and owner of a tavern at 924 West 69th Street were in the premises. Two of their customers, William Adamore and Robert Bell, were seated at the bar. The tavern was well lit.

Two men entered and ordered a beer. Shirlene testified that one of the men, whom she identified at trial as the defendant, asked her name and told her in return that his name was John Frederick. She conversed with him and shortly thereafter went to the window to change a record album. When she turned around the defendant had a gun pointed at her and demanded all the money in a drawer. She complied. The other man robbed the patrons. The defendant then told Robert Bell he was “smart” and that he was going to teach him a lesson. Defendant struck Bell in the jaw with his gun and it fired, wounding him (Bell) in the shoulder. The bullet passed through Bell’s shoulder and struck William Adamore in the head, killing him. The defendant turned and said “I’m sorry it had to happen like this, but I didn’t have a choice.” He and the other man then backed out the door and Shirlene immediately called the police.

The two women gave a description of the defendant to the police. They both noted a scar on his left cheek near the chin. In addition to Shirlene Armour, both Miss Barksdale and Robert Bell identified the defendant at trial, and their testimony substantially corroborated that given by Mrs. Armour.

Willie Lee Wilson testified that the defendant was at her home on August 6, 1970, from about 6:30 P.M. until about 1 or 2 o’clock in the morning. The defendant took the stand in his own defense and also testified that he was with Willie Lee for the period of time stated by her. On cross-examination he admitted that he had also used the name of John Frederick. In rebuttal Officer Ivory Hampton testified that when he informed Willie Lee Wilson, during the investigation, that the defendant stated he had been with her on August 6 she denied it and told him she had been at home with her husband and children that evening.

The defendant first contends that it was reversible error for the trial court to deny his motion for a mistrial where the prosecution introduced evidence which showed his involvement in previous unrelated crimes.

Objection is first made to certain testimony given by Officer Ivory Hampton. He testified that he and another officer received a call that there was a robbery in progress at the tavern and they went directly to the scene. The following day, August 7, 1970, Shirlene Armour and Barbara Barksdale were requested to come to the police station and did so. Officer Hampton then was asked by the prosecutor:

“Q. After they came in, would you tell the ladies and gentlemen of the jury what, if anything, occurred?
A. They came in. We gave them the books of the male, Negroes robbery and sex offenders.”

An objection to that testimony was made by the defense counsel and sustained by the judge who immediately instructed the jury to disregard the answer. We note here that Hampton then testified that defendant’s picture was not found in the books by the two women and no identification was made at the time. His subsequent testimony revealed that it was at the next meeting between him and the women on August 9 that the identification of a photograph of the defendant was made from different books.

The other testimony on which defendant bases his contention of reversible error was given by Sergeant Eli Harris during his questioning by the prosecution. Harris testified that he was supervisor of the unit to which Officer Hampton was assigned. He was then asked by the prosecutor:

“Q. Calling your attention to August 9th and 10th, did you have occasion to become assigned or involved in a matter with Investigator Hampton?
A. Yes, sir.
Q. Tell the ladies and gentlemen of the jury how you first became involved in the matter with Investigator Hampton.
A. Well, on that date, I was working the day shift and I came into work that morning. And on my desk was a note from Hampton with a picture and an arrest record.
MR. MISSIRLIAN: [Assistant Public Defender] Objection, Your Honor.
THE COURT: Sustained.
MR. DRISCOLL: [Assistant State’s Attorney] Q. What did you find on yoür desk?
A. What I found on my desk, I found a note on my desk, I found a note on my desk left by Investigator Hampton.
Q. Was anything attached to the note?
A. Yes, sir, it was.
Q. What was attached to the note?
A. Copy of an arrest record and a photograph.
MR. MISSIRLIAN: Objection.
THE COURT: Sustain the objection.
MR. DRISCOLL: Q. Did you have occasion to recognize the person in the photograph?
A. Yes, sir.
Q. And will you look around the courtroom, Sergeant, and tell the ladies and gentlemen if you see anyone here in court who was portrayed in the photograph?
A. Yes, sir.
Q. Point out whom, if anyone, you see?
A. Sitting right next to the attorney there.
MR. DRISCOLL: Indicating for the record the defendant in this cause, Andrew Jackson.”

Sergeant Harris then stated he had known the defendant for approximately 7 to 10 years by the name of Sonny, and that he knew the general area where he could be found. After seeing the photograph Harris circled a four-block area a few times and recognized the defendant among a group of persons. He then testified that he searched the defendant and took him to the police station where he turned him over to Officer Hampton.

On cross-examination Sergeant Harris testified that he did not question the defendant at any time or hear him make a statement. He was asked if he ever went to where the defendant lived or resided and he said he did not. On redirect the following occurred:

“Q. Sergeant, you say you knew the defendant for six or seven years, I believe you said?
A. At least.
Q. And did you know him from your duties as a police officer?
A. I had known him from working as a police officer.”

Defense counsel made a motion for a mistrial and it was denied.

Rased on certain portions of the above quoted testimony of Officer Hampton and Sergeant Harris, the defendant maintains that the prosecution introduced evidence that the defendant committed other criminal offenses which had no connection with or relation to the prosecution of the crime charged, and that such evidence was incompetent and prejudicial. It is argued that repeatedly and consciously subjecting the jury to such testimony rendered the trial unfair and denied the defendant due process.

We have carefully reviewed the record and find that the testimony does not compel reversal. In regard to Officer Hamptons statement about the “male, negroes robbery and sex offenders” photograph books shown to the victims on August 7, an objection was made and sustained and the jury was immediately instructed to disregard the answer given. We find no evidence that the testimony was intentionally elicited by the prosecutor. More fundamentally, as we pointed out, the jury was aware that the books referred to did not contain the defendant’s picture. Thus there was nothing to prejudicially connect the defendant at that time with the remarks of Officer Hampton and no inference of prior crimes could legitimately be drawn.

As to the testimony of Sergeant Harris that both a photograph and an arrest record were attached to the note left for him, an objection was made and sustained. The jury was instructed before deliberating that they were to disregard such testimony. Again we find no intentional attempt by the State to introduce it. The defendant emphasizes that, after the judge had sustained a first objection to the Sergeant’s answer about an arrest record being attached to the note on his desk, the prosecutor again asked, “Was anything attached to the note?” and the same response was given, and again an objection was sustained. But, as the State points out, the prosecutor apparently assumed that the experienced police officer would omit any reference to the arrest record the second time and mention only the photograph, which was the real subject of his inquiry, as revealed by his subsequent questions. Although in retrospect the prosecutor might have phrased the question more tactfully, we are not persuaded that he intentionally elicited the response.

After closely scrutinizing the trial record, we find it unnecessary to elaborate further here about any of the testimony of Sergeant Harris complained of by the defendant. It is our opinion that if indeed there was any error committed by virtue of his testimony, it did not reasonably affect the verdict of the jury. As we stated in People v. Olivier, 3 Ill.App.3d 872, 878, 279 N.E.2d 363, 367:

“It is not the policy of this court to reverse a judgment merely because error has been committed unless it appears that real justice has been denied or that the finding of guilty may have resulted from such error. [Citations.]”

Here the defendant’s guilt was based on the testimony of three eyewitnesses who had ample opportunity to observe the defendant face to face and who positively identified him as the person who robbed them and shot Robert Bell. Without a doubt that was the evidence that convinced the jury of defendant’s guilt and not the inadvertent answers given by the policemen.

It is next contended that the defendant was denied a fair trial by certain prejudicial remarks of the Assistant State’s Attorney in his closing argument to the jury. This is based first on the prosecutor’s argument that “as soon as [the defendant] got out of that tavern, he would get rid of that gun and the proceeds of the robbery as quick as he can. That is the reason three days later, when this [sic] apartment is searched, nothing was found.” It is claimed that for the prosecutor to argue that the absence of evidence of proceeds of the crime supports guilt is to shift the burden of proof to the defendant. The record discloses that defense counsel made no objection to this argument at trial and therefore any contention here that it constitutes error is deemed waived. (People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473.) The same principle of waiver precludes defendant from asserting error in the prosecutor’s rebuttal closing argument to the effect that “[b]y a verdict of guilty, ladies and gentlemen, you can tell Andrew Jackson, and everybody like him out there, that they can’t go around and rob people, and beat people, and shoot people at their whim.” This line of argument is claimed to have impressed the jury that the defendant is a dangerous person who should be kept out of the community and that they should convict him regardless of his guilt in the instant case.

Even had defense counsel felt it necessary to object to these arguments in the trial court we perceive no error. In conducting his cross-examination he dwelt on the fact that no weapon was ever recovered nor were any proceeds found, apparently to strengthen defendant’s alibi. The prosecutor had a perfect right to answer this strategy and state the obvious — that the defendant could very well have disposed of the gun and proceeds in the 3-day interval between the commission of the crimes and his arrest. We interpret the other remarks of the prosecutor as merely urging the jury to fearlessly administer tire law by convicting the defendant, whom the evidence showed to be guilty. (See People v. Halteman, 10 Ill.2d 74, 139 N.E. 286.) They cannot be likened to the outrageous comments made by the prosecutor in People v. Garreau, 27 Ill.2d 388, 189 N.E.2d 287, a rape prosecution, cited by defendant.

The defendant also complains of the argument by the prosecutor, objected to at trial, that the State’s witnesses had no reason to lie when they identified the defendant, and that the defendant had a greater interest in or motive for lying. Objection to this argument is without merit. It is not error to point out possible sources of a witness’ bias (People v. Winstead, 90 Ill.App.2d 167, 234 N.E.2d 175), and the prosecutor may even call a witness false, if in doing so he relies on the evidence and the inferences from it to support his conclusion (People v. Sinclair, 27 Ill.2d 505, 190 N.E.2d 298; People v. Weaver, 18 Ill.2d 108, 163 N.E.2d 483). Objection was also made at trial to the remark by the prosecutor: “If you believe Andrew Jackson wasn’t there, let him walk out and God help the next person that comes in contact with him.” We note that similar remarks have been found not to constitute error (see People v. Wright, 27 Ill.2d 497, 190 N.E.2d 287; People v. Brown, 16 Ill.2d 482, 158 N.E.2d 579), and in any event the court by promptly sustaining defendant’s objection prevented any misunderstanding of this argument by the jury (People v. Dismuke, 3 Ill.App.3d 553, 278 N.E.2d 152). As we stated earlier, the cumulation of eyewitness testimony establishing defendant’s guilt was so overwhelming that the jury could not have returned any verdict but that of guilty. And

“[although a prosecutor’s remarks may be subject to criticism, unless they constitute a material factor in the conviction or are such that prejudice to the defendant is their probable result, the verdict will not be disturbed.” People v. Weaver, 8 Ill.App.3d 299, 307, 290 N.E.2d 691, 697.

It is next pointed out that the report of proceedings indicates that the court did not sentence the defendant for aggravated battery using a deadly weapon, but the common-law record reflects the imposition of such a sentence. Since the defendant here could not have been sentenced for the simultaneous acts of aggravated batteiy causing great bodily harm and aggravated battery using a deadly weapon in regard to the same victim (see People v. Cox, 53 Ill.2d 101, 291 N.E.2d 1), the common-law record is, as conceded by the State, in error. A nunc pro tunc order must be issued to correct tire discrepancy and the cause will be remanded for that purpose.

The defendant finally urges that his minimum sentence for aggravated battery causing great bodily harm be reduced to conform to the mandates of the new Unified Code of Corrections, which became effective on January 1, 1973. The State rightly concedes that the present case, since it is on appeal, is subject to the provisions of the Code. (People v. Harvey, 53 Ill.2d. 585, 294 N.E.2d 269.) Under the Code aggravated battery is a Class 3 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 12 — 4 (d)), for which the penalty is 1 to 10 years and for which the minimum sentence may not exceed one-third of the maximum (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1). Since the defendant was sentenced to a maximum of 10 years on the aggravated battery charge, his minimum sentence on that charge must be reduced to 3 years and 4 months. The cause is remanded to the Circuit Court with directions to issue an amended mittimus, reflecting this modification in the sentence.

Judgment affirmed, sentence to be modified, cause remanded with directions.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Turner et al., Defendants-Appellants.
    (No. 58811;
    First District (4th Division)
    April 24, 1974.
    James J. Doherty, Public Defender, of Chicago (William Lebovitz and Bernard L. Schwartz, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Roger L. Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

William Turner, James H. Green, and Bobby Davis were found guilty in a bench trial of two counts of armed robbery. Turner was also found guilty of unlawful use of a weapon. Davis and Green received 5-to-8-year concurrent sentences on the robbery counts. Turner was sentenced to concurrent terms of 6 to 12 years for armed robbery and 1 to 5'years for unlawful use of a weapon.

James H. Green and William Turner have brought the present appeal. The issues presented for our review are whether the identification of Green was sufficient to establish his guilt beyond a reasonable doubt and whether the sentences imposed by the court were excessive.

The trial testimony established that, at approximately 1:15 A.M. on December 19, 1971, three men entered a tavern at 3000 South Canal. One of the men carried a sawed-off shotgun and the other two were armed with revolvers. After emptying the cash register of its contents, the three men herded the patrons toward the rear of the tavern. One of the patrons, Carmen Megaro, said that he was hit over the head with a gun when he moved slowly. Another patron, Willard Olson, stated that he slipped out of the tavern and called the police from a nearby house.

Carole Diehl testified that, 5 minutes prior to the robbery, she went outside the tavern to get her dog from the car and saw a white Ford 1961 to 1964 station wagon with large taillights parked in front of her car. According to Mrs. Diehl, three males were sitting in the car.

Police Officer Charles Parrillo testified that he responded to a robbery in progress call and arrived at the tavern by approximately 1:22 A.M. The officer obtained a description of the three men and the station wagon observed near the tavern and then sent a flash message to other police cars located in the zone that three males believed to be in a white Ford station wagon, year 1961 to 1964, with large taillights, were wanted for armed robbery.

Police Officer Dennis McGuire testified that he stopped a vehicle which matched the description of the station wagon in the flash message at 51st Street and Princeton at about 1:25 A.M. According to Officer McGuire, a revolver was found in the right coat pocket of the driver, whom the officer subsequently identified as defendant James H. Green. The officer identified defendants William Turner and Bobby Davis as the other occupants of the station wagon. A sawed-off shotgun and one expended shell were taken from the station wagon.

Police Officer Edward Knizer testified that he was patrolling in the squad car with Officer McGuire when they stopped the station wagon in which the defendants were riding. The officer further stated that he observed a shotgun on the front seat when Turner exited from the station wagon. According to Officer Knizer, five shotgun shells were found on Turner, and a cigar box containing some money and checks were recovered from the station wagon.

At trial, Leo Janush, the owner-bartender of the tavern, identified William Turner as the man who carried the shotgun during the robbery. Janush testified further that the cigar box recovered from the station wagon looked like the one taken from his tavern and that a check found inside the cigar box was one he had cashed earlier for a patron.

Carmen Megaro identified Turner as the man who hit him on the head with the shotgun. Turner was also identified as a participant in the robbery by Robert Neuman, Carole Diehl, and James Diehl, all of whom were tavern patrons present during the robbery. Neuman also identified Bobby Davis as a participant in the crime.

James Diehl was the only tavern patron who identified James H. Green. Diehl testified that he asked Green’s permission to hold his dog during the robbery so that the dog would not be shot and Green replied, “Yes, hold the dog.” Diehl further stated that Green was armed with a gun during this conversation, that Green then jumped behind the bar, pointed the gun at Janush and demanded the cash. Janush replied that he didn’t have it, according to Diehl, and Green then came back around the bar and ordered everyone to the rear of the tavern.

Defendants contend in this appeal that the evidence identifying Green as a participant in the robbery was insufficient to establish his guilt beyond a reasonable doubt. They note that Green was identified by only one eyewitness, James Diehl, and argue that it is ‘likely” Diehl was focused upon the gun pointed at him and the safety of his dog rather than the characteristics of the assailant.

It is well settled in Illinois that the testimony of one witness is sufficient to convict provided that the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made. People v. Stringer (1972), 52 Ill.2d 564, 569, 289 N.E.2d 631, 634; People v. Brinkley (1965), 33 Ill.2d 403, 406, 211 N.E.2d 730, 732; People v. Washington (1962), 26 Ill.2d 207, 210, 186 N.E.2d 259, 261; People v. Mack (1962), 25 Ill.2d 416, 421, 185 N.E.2d 154, 156; People v. Cox (1961), 22 Ill.2d 534, 539, 177 N.E.2d 211, 214.

Our review of the record in this case reveals that the testimony of the sole identifying witness, James Diehl, was consistent and unimpeached. The witness had an ample opportunity to view the accused since Diehl testified that he had a brief conversation with Green and that he observed the defendant climb across the bar, point a gun at Janush, demand money and then come back around to the other side of the bar. According to Diehl, he was less than 2 feet away from Green when these events occurred. Moreover Diehl’s ability to observe was supported by the testimony of Carole Diehl who, when asked on cross-examination by defense counsel about her husband’s activities, testified as follows:

“Q. During most of the time he [James Diehl] was looking at the floor, is that right?
A. No, he was looking around.
Q. He was looking around?
A, When a man would talk to him he would look right at him and speak.
Q. You could see all this, is that right?
A. Yes.”

Green’s connection with the crime was further supported by the arresting officers’ testimony that he was apprehended a few minutes after the robbery while driving a station wagon that matched the description given by witnesses. Green had a revolver on his person when arrested, and the fruits of the crime were in the station wagon driven by him. In People v. Curtis (1972), 7 Ill.App.3d 520, 288 N.E.2d 35, the defendant was apprehended shortly after a store robbery in a car which contained items taken in the robbery. The court there stated that the inference to be drawn from his possession of recently-stolen property was that the defendant was one of the persons involved in the robbery. Similarly, we find here that Green’s presence as the driver of a car containing items identified by witnesses as proceeds of the offense supports the inference that he was one of the persons involved in the robbery.

In view of the foregoing, we hold that the evidence was adequate to establish Green’s identification. He was identified as a participant in the robbery by the positive testimony of an eyewitness, and this identification was corroborated by the presence of the proceeds of the offense in the automobile that Green was driving at the time of his arrest.

Secondly, defendants contend that the sentences of 6 to 12 years for Turner and 5 to 8 years for Green on the armed robbery counts are excessive. They note that armed robbery is now characterized as a Class 1 felony (Ill. Rev. Stat. 1973, ch. 38, § 18 — 2) and that section 5 — 8—1 (c) (2) provides:

“'(2) for a Class 1 felony, the minimum term shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term; * ”

Where it is contended that the punishment imposed in a particular case is excessive, the power of reviewing courts to reduce sentences “should be applied with considerable caution and circumspection, for the trial court ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.” People v. Taylor (1965), 33 Ill.2d 417, 424, 211 N.E.2d 673, 677.

After reviewing the record before us, we find that the trial court did not abuse its discretion in imposing a sentence 1 year above the minimum for Green and 2 years above the minimum for Turner. Section 5 — 8—1(c)(2) (Ill. Rev. Stat. 1973, ch. 38) clearly states that a trial court may set a minimum term in a. Class 1 felony higher than 4 years where the court determines that the nature and circumstances of the offense justified such a sentence. Here, the defendants invaded a public business armed with deadly weapons. Turner struck one of the patrons over the head with a shotgun and the gun discharged. In view of these aggravating circumstances, we find that the sentences imposed upon the defendants were justified.

Finally, we turn to Turner’s conviction for unlawful use of weapons, for which he was sentenced to a term of 1 to 5 years to run concurrently with his sentence for armed robbery. Although appellants have not raised this issue in their brief, we feel compelled to consider it on our own motion under authority granted this court by Supreme Court Rule 615(a) to notice plain errors or defects affecting substantial rights. Ill. Rev. Stat. 1973, ch. 110A, § 615(a).

The indictment charging William Turner with unlawful use of a weapon alleged that he “knowingly possessed a shotgun with a barrel less than eighteen inches in length,” in violation of section 24 — 1(a)(7) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, §24 — 1(a)(7)). This charge was based upon Turner’s possession of a shotgun while fleeing in the station wagon from the scene of die robbery. The arresting officers testified that a revolver was found in the right coat pocket of the driver, James H. Green, but Green was not similarly charged with a violation of the weapons statute.

Concurrent sentences for crimes arising from the same conduct should not be imposed. (People v. Duszkewycz (1963), 27 Ill.2d 257, 189 N.E.2d 299.) If such sentences are imposed, the conviction for the lesser crime should be reversed and that sentence set aside. See People v. Ritchie (1966), 66 Ill.App.2d 302, 213 N.E.2d 651; People v. Miller (1966), 74 Ill.App.2d 356, 220 N.E.2d 1.

In the case before us, the evidence showed that Turner first committed robbery while armed with a shotgun. When he was arrested a short time after the robbery, he still had in his possession the same shotgun. This subsequent possession of the shotgun resulted in the charge of unlawful use of weapons.

We are of the opinion that the offenses of armed robbery and unlawful use of weapons committed in this case arose from the same course of conduct. The motivation for the conduct was armed robbery, and the possession of the weapon was a part of the course of conduct which was directed to the accomplishment of the robbery. See People v. Johnson (1972), 6 Ill.App.3d 233, 285 N.E.2d 611. In view of the foregoing, the judgments of conviction for armed robbery are affirmed, while the judgment of conviction for unlawful use of a weapon is reversed.

Affirmed in part; reversed in part.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James W. Taylor, Defendant-Appellant.
    (No. 59267;
    First District (4th Division)
    April 24, 1974.
    James J. Doherty, Public Defender, of Chicago (Richard A. Kavitt and Robert Gevirtz, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was convicted of aggravated battery in a bench trial and was sentenced to a term of 3 to 10 years in the Illinois State Penitentiary.

The only issue presented on appeal is whether the sentence of 3 to 10 years for aggravated battery is excessive.

On the evening of February 25, 1971, the defendant, James W. Taylor, was playing cards in his apartment with two other individuals. The defendant’s wife was asleep on the couch when, at the insistence of the defendant, she was forced to join the card game. Several times during the course of the game the defendant and Mrs. Taylor engaged in arguments. Upon the conclusion of the card game about 2 A.M. on February 26, 1971, the defendant and his wife retired to the bedroom. Another argument commenced, during which the defendant ordered his wife to leave the house. Mrs. Taylor went into the apartment court yard only to be dragged back into the apartment by the defendant. The defendant then tore off his wife’s dress and undergarments and started hitting her with a radiator pipe. The beating by the defendant resulted in severe lacerations about the right eye, left leg, and back of the head, a fractured jaw, fibula, tibia, and right rib, and severe swelling of the lips. The next morning Mrs. Taylor was found in her bed in her own excrement. The defendant filled a bath tub with hot water and placed his wife into the tub. After bathing the victim, defendant called the fire department ambulance. Mrs. Taylor was dead on arrival at Provident Hospital.

Dr. Edward Shalgos testified on behalf of the State that the victim died of traumatic shock induced by the beating, with an associated presence of morphine narcotism. Dr. Harold Wagner testified on behalf of the defendant that the death of Mrs. Taylor could have been caused by a combination of scalding, tuberculosis, morphine, and alcohol. In light of the conflicting medical testimony, the trial court found the defendant not guilty of murder but guilty of aggravated battery. During the trial the defendant advised the court he wished to plead guilty to the charge of aggravated battery. A sentence of 2 to 5 years was agreed to by the defendant and the trial judge. However, the defendant subsequently changed his mind and withdrew his plea. Defendant then renewed his desire to plead guilty to aggravated battery, but was informed by the court he would have to plead guilty to the entire indictment, which included the offense of murder. The defendant refused to plead guilty to the charge of murder. The trial court subsequently found the defendant guilty of aggravated battery and sentenced him to a term of 3 to 10 years in the Illinois State Penitentiary.

The defendant contends the sentence of 3 to 10 years for aggravated battery was excessive. In support of his contention the defendant cites the decision in People v. Lillie, (1967), 79 Ill.App.2d 174, wherein the court held the purposes sought to be achieved by imposition of sentence are adequate punishment for the offense committed, the safeguarding of society from further offenses, and the rehabilitation of the offender into a useful member of society. Defendant maintains his prior work record, honorable discharge from the armed forces, and lack of any prior felony convictions demonstrate his desire to be a productive member of society and accordingly cause his sentence of 3 to 10 years to be excessive.

We believe the sentence imposed by the trial court in the instant case was not excessive. Imposition of sentence is a matter of judicial discretion, and unless there is a showing in the record of substantial and justifiable reason for so doing, this court should not disturb the sentence of the trial court. (People v. Lewton (1972), 2 Ill.App.3d 882.) In light of the violent and vicious attack by the defendant in the instant case, we find the trial court did not abuse its discretion in imposing its sentence. People v. Smith (1972), 9 Ill.App.3d 195.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Smith, Defendant-Appellant. The City of Chicago, Plaintiff-Appellee, v. William Bonner, Defendant-Appellant.
    (Nos. 56404-5 cons.;
    First District (3rd Division)
    May 2, 1974.

      Francis E. Andrew and Jack Welch, both of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (John Cutrone, Assistant State’s Attorney, of counsel), for the People.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for the City of Chicago.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The co-defendants, William Bonner and Steven Smith, were charged with batteiy and resisting a known police officer in the performance of his duties. In a trial without a jury, Bonner was found guilty of resisting the officer and Smith was found guilty of battery.

Both defendants contend that the proof was insufficient to support their convictions. Smith also contends that his actions constituted justifiable use of force.

Smith and Bonner were arrested following an altercation with Fred Schnabel, a Chicago policeman, on May 3, 1970. On that day they and about 500 other young men and women participated in a “Young Lords” and “White Panthers” march, protesting the killing of a member of one of the groups who had been shot to death by the police.

Schnabel was assigned to protect the rear of the parade. Wearing plain clothes and driving an unmarked car, he drove behind the last marchers. He testified that Bonner, who was walking at the end of the parade, blocked his car several times. He said that he got out of his car on two occasions, informed Bonner that he was a police officer and told him not to block his car again or he would be arrested. Schnabel first said he identified himself to Bonner on Division Street, but then said the identifications took place on Armitage Avenue. On cross-examination he said that the second identification was made in the middle of a block, but admitted that he had stated in a deposition that it occurred at a red traffic light.

Schnabel testified that when he reached the 1900 block on North Lincoln Avenue, Bonner again blocked his car; he honked the. car’s horn but Bonner still did not move. He then got out of his car, walked to the front of it, showed Bonner his badge and told him that he was under arrest. Bonner responded, “Fuck you, copper,” and turned to move away. The officer put his credentials back in his coat pocket and grabbed Bonner, but Bonner turned and hit him in the chest. The officer took hold of Bonner again and wrestled with him. At that point, Schnabel was seized from behind by Steven Smith, who, he said, hit him repeatedly in the side of the chest. Then he, Smith and Bonner fell to the ground.

Police officers at the scene came to Schnabel’s aid and took Bonner and Smith into custody.

Officer Erkenswick, a policeman who had been walking in the parade about 25 yards ahead of the last marchers, testified that he saw Schnabel being struck by Smith and falling to the ground. He went to Schnabel’s assistance and pulled Bonner and Smith away from him.

Bonner testified that he had heard Schnabel honk at him several times prior to the incident on Lincoln Avenue. He said, however, that Schnabel did not get out of his car and identify himself at any time. He stated that on Lincoln Avenue he stopped in front of Schnabel’s car because Schnabel had driven so closely to him that the car brushed his leg. He was incensed by that act and ran to the car, stood in front of it and said, “Hit me, motherfucker,” and then walked away. A moment later he was seized from behind; as he tried to pull away, he was spun around and fell to the ground.

Steven Smith testified that he was 5 or 6 feet away when he saw Schnabel grab Bonner. He ran over and tried to pull Schnabel off of Bonner, whom he did not know. He denied hitting Schnabel. He said that he was trying to help a fellow-marcher by breaking up the tussle. After the three of them fell to the ground, some other policemen attacked and choked him until he became unconscious. When he came to he was under arrest.

Three onlookers, William and Susan Webber and Roberta Smith, testified for the defense. None of them knew Bonner or Smith. Susan Webber and Roberta Smith had trailed the parade in their car. Schnabel’s car was directly in front of them. They testified that they did not see him get out of his car, talk to Bonner or display his badge prior to the altercation. At that time they saw him grab Bonner but were unable to see what was in his hands because his car blocked their vision.

William Webber had been taking pictures of the march for a documentary film. He testified to what he saw through the viewfinder of his camera. He was about 15 feet away and had his camera on Schnabel from the time that Schnabel left his car. He heard Schnabel say, “Hey you, I want you,” and saw him run up to Bonner and seize him. He did not see him take out a badge nor did he hear him say, “I am a police officer. You are under arrest.”

The film was introduced into evidence. It is out of focus until Schnabel is seen at the front of his car taking hold of Bonner. The film, therefore, does not show clearly the point where Schnabel asserts he showed his badge to Bonner, but it does show his grabbing Bonner, the struggle, Smith reaching for Schnabel and the three men falling to the ground. It does not show either Bonner or Smith hitting Schnabel. After they fell to the ground, the film shows Bonner and Smith being taken into custody. It does not show what happened in the interim because a passerby jostled Webber and a crowd gathered around the three men making it impossible for Webber to film the entire sequence.

At the conclusion of the trial, the court found Smith guilty of battery and Bonner not guilty. In our opinion, the court was right as to Bonner but wrong as to Smith. The evidence raises a reasonable doubt of the guilt of both defendants. Bonner was 5 feet, 7 inches in height and weighed 170 pounds. Smith, who has a clubfoot, was 5 feet, 9 inches and weighed 160 pounds. Schnabel was 5 feet, 11 inches tall and weighed 195 pounds. Schnabel’s testimony that Bonner turned and struck him after Bonner was seized and placed under arrest and that Smith struck him repeatedly before they fell down, was discredited by his own testimony, contradicted by the testimony of disinterested witnesses and completely refuted by the film. Blows, however, are not necessary to the 'commission of the offense of battery. Battery may be committed by any physical contact of an insulting, provoking nature. (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 3(a)(2).) By jumping on Schnabel, Smith committed an act which under other circumstances could have been a battery. But Smith was simply coming to the defense of another person. He saw two men struggling and he tiled to get the attacker, who was the taller and heavier person, off of the smaller one. His belief that his action was necessary to protect the smaller person from unlawful force was reasonable under the circumstances. Therefore, the force used by Smith to break up the struggle was justifiable. Ill. Rev. Stat. 1969, ch. 38, par. 7 — 1.

The court found Bonner guilty of resisting arrest and Smith not guilty. In our opinion, the court was right in both instances. There was no evidence that Smith resisted arrest. Bonner, however, admitted that he tried to pull away from Schnabel after he was seized. He defends this act, which could constitute resisting arrest, by contending that he did not know that Schnabel was a policeman. Schnabel testified that he twice identified himself to Bonner during the parade. Bonner denied this and Susan Webber and Roberta Smith did not see Schnabel speak to Bonner while the march was in progress. Schnabel said that he displayed his badge to Bonner just before arresting him. Bonner said he did not. The women did not know whether Schnabel had his badge in his hand because their view was obstructed. The motion picture was of no help because it was out of focus at this time. The defense points out that since the blurred portion of the movie is of less than two seconds duration, Schnabel would have had to show his badge, inform Bonner that he was under arrest and put his badge away — which they assert is highly unlikely in that limited time.

While unlikely, it was not impossible — particularly if Schnabel carried his badge in a side pocket of his coat. A factor that gave credence to Schnabel’s version of what occurred just prior to the arrest, was his testimony that Bonner used obscene language which included the word “copper” and Bonner’s admission that he used language even more obscene. If Bonner used the word “copper,” it indicated that he "knew Schnabel was an officer of the law. The trial judge chose to believe Schnabel on this point and his determination of the evidence,. which we do not find to be obviously erroneous, adequately supports a conviction of resisting arrest by one known to be an officer of the law.

The defense argues that Schnabel’s testimony which was not believed when he said that Bonner struck him, should not have been believed when he said he showed his badge to Bonner. The defense suggests that the court believed Schnabel on the second point only because he was , a police officer. Had the court believed Schnabel because he was a policeman, it would have been error. The testimony of a policeman is not automatically entitled to credibility. (See People v. Catavdella (1964), 31 Ill.2d 382, 202 N.E.2d 1, and People v. Quintana (1968), 91 Ill.App.2d 95, 234 N.E.2d 406.) However, the court’s findings show that it did not believe Schnabel merely because he was a police officer. The court ácquitted Bonner of battery despite Schnabel’s testimony.

The defendant cites People v. Ethridge (1971), 131 Ill.App.2d 351, 268 N.E.2d 260, and People v. Griffin (1967), 88 Ill.App.2d 28, 232 N.E.2d 216, to support his argument that if the court disbelieved Schnabel on one point it should have disbelieved him on the other. Ethridge and Griffin do not apply to the facts in this case. In those cases, the evidence against each of two co-defendants consisted of basically the same testimony, yet one defendant was convicted and the other was not. We held that since the testimony against the defendant who was found not guilty was the same or greater than the testimony against the one found guilty,, both should have been treated alike. In this case, Schnabel testified to distinct crimes and the exact testimony was not used to prove each offense. Moreover, there were different standards of proof for tire two offenses. Resisting arrest, a violation of the Municipal Code of Chicago (chapter 11, section 33), is a municipal violation. A municipal violation must be proven by a clear preponderance of the evidence. (City of Highland Park v. Curtis (1967), 83 Ill.App.2d 218, 226 N.E.2d 870.) Battery, on the other hand, is a violation of the State criminal code (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 3) and must be proven beyond a reasonable doubt. The court found that the lesser burden of proof for resisting arrest was satisfied, but that the greater burden of proof required to support a conviction for battery was not.

The conviction of William Bonner for resisting arrest is affirmed and the conviction of Steven Smith for battery is reversed.

Affirmed in part; reversed in part.

McNAMARA, P. J., and McGLOON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence J. Davis, a/k/a William Robertson, Defendant-Appellant.
    (No. 56768;
    First District (3rd Division)
    May 2, 1974.

      James J. Doherty, Public Defender, of Chicago (Bernard L. Schwartz and Ian Levin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant, Lawrence Davis, was convicted by a jury of aggravated battery (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4) and armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2). He was sentenced to concurrent terms of 1 to 5 years for the aggravated battery and 7 to 15 years for the armed robbery.

The defendant raises four issues, two of them pertaining to identification testimony by the victim of the crimes: first, that it was error not to suppress this testimony because the pre-trial identification procedure was highly suggestive; second, that the identification was insufficient to prove his guilt beyond a reasonable doubt. His third and fourth issues concern the denial of due process: that he was prevented from receiving a fair trial by the trial court’s permitting the prosecutor, over objection, to elicit testimony from him that an out-of-court identification had taken place, and by prejudicial opening remarks to prospective jurors made by the court itself.

At approximately 11 P.M. on July 8, 1970, J. D. Dodd left work at the Western Electric Company and walked to his car which was parked nearby in a brightly lighted alley. As he approached his car, two men confronted him, one of them announcing, “This is a stickup.” One carried a sawed-off shotgun, the other a pistol, which appeared to be a .38. The man holding the pistol stood about 4 or 5 feet away and, as Dodd turned to face the alley wall, he fired, the bullet creasing Dodd’s scalp high on the forehead. Dodd fell to the ground, dazed. The attackers then roughly searched through his clothing, removed his wallet, and fled. The wallet contained $520 in cash, a Goldblatt’s Department Store charge card and other items including additional identification. Dodd was taken to a hospital, treated and released the same evening. He was questioned by the police but could not supply a description of either assailant.

The following morning Dodd called Goldblatt’s to inform them of the theft of his credit card. That evening, the defendant, in the company of another person, entered a Goldblatt store and attempted to purchase some sweaters with Dodd’s card, signing Dodd’s name to a sales slip. Security personnel detained Davis in the store’s credit office until the police arrived. He was then arrested and taken to a police station. However, a security officer assigned to remain with Davis’ companion elsewhere in the store permitted him to leave the premises. Shortly after Davis’ arrest, Dodd was escorted to the station by officer Erjavec of the Cicero police force and he identified Davis in a five-man lineup as the man who had shot and robbed him.

Davis moved to suppress his identification by Dodd, the sole occurrence witness. At the hearing, the testimony conflicted on the question whether Dodd was told about Davis prior to pointing him out in the lineup. Dodd testified that he received a phone call from a police sergeant who informed him that Lawrence Davis who worked at Western Electric had been arrested in possession of his identification papers and credit card. But he stated that at the lineup itself the five men whom he viewed did not speak their names, and he denied that the police had in any manner divulged Davis’ identity to him, or that he had based his identification on any factor except his recollection of the robbery. Officer Erjavec, who was present during the lineup, contradicted Dodd; as he remembered the procedure, each of the five men gave his name as he stepped forward from the line. The defendant agreed with Erjavec. The motion to suppress was denied without explanation or findings of fact.

At the trial Dodd again identified Davis as one of the two men who had accosted him. On cross-examination, he explained that he had been unable to furnish the police with a description of either assailant because the robbery had happened so quickly. However, he remained adamant in his identification and said Davis had shot him at a very close range. Notwithstanding the court’s earlier, unqualified rejection of the defense motion to suppress, the prosecution did not examine Dodd before the jurors concerning the out-of-court identification, nor was that subject touched upon by the defense in its cross-examination.

Davis offered an alibi to explain his whereabouts at the time of the robbery. He related that around 11 P.M. on that night he was at the home of Juanita Flowers, and that Sylvester Smith, his mother Mrs. Smith, and a Miss Giles were present. None of these persons appeared in court to corroborate his story. He explained that Mrs. Smith and Miss Flowers could not remember well enough to help, and Miss Giles had moved to Georgia. His counsel reported that although Sylvester Smith had agreed to testify, he had disappeared shortly before the trial began. Out of the presence of the jury the court reminded Davis of the availability of compulsory process to produce the witness, but the defense rejected this proffered aid.

To explain his possession and attempted use of Dodd’s credit card on the day following its theft, Davis testified that on July 9, 1970, he met an individual known to him only as “Roger,” who offered to let him charge some items to his account at Goldblatt’s in exchange for cash. On cross-examination, he said that the possession by “Roger” of the credit card in the name of J. D. Dodd had not aroused his suspicion. Over objection of his counsel, the State was permitted to draw from Davis the fact that after his arrest he had participated in a lineup at which Dodd was present. He was not asked whether Dodd had at that time identified him as one of the robbers.

The defendant’s first contention, that the admission of Dodd’s in-court identification was fundamentally unfair, is predicated on the proposition that the pre-trial identification procedure was so highly suggestive that the attendant danger of his mistaken identification was great.

If an accused can substantiate a claim that the circumstances of his pre-trial identification were conducive to irreparable mistaken identification, the evidence of identification, both in and out of court, is not admissible. (Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Blumenshine (1969), 42 Ill.2d 508, 250 N.E.2d 152.) The out-of-court identification is inadmissible per se; the in-court identification becomes inadmissible unless the State can establish that the identification had an origin based on observations by the witness independent of and uninfluenced by the tainted proceeding. (People v. Lee (1969), 44 Ill.2d 161, 254 N.E.2d 469.) If the court is satisfied that overly-suggestive procedures were not employed in the pre-trial confrontation, testimony about that confrontation may be received and its weight determined by the trier of fact.

As in People v. Williams (1972), 52 Ill.2d 455, 288 N.E.2d 406, and People v. Jones (1972), 6 Ill.App.3d 669, 286 N.E.2d 87, but unlike Stovall and Blumenshine, this case does not involve a clear example of overly-suggestive lineup procedures. The evidence did not convincingly demonstrate that the procedure was suggestive and that the defendant’s identification deprived him of his constitutional right to due process of law. (People v. Brown (1972), 52 Ill.2d 94, 285 N.E.2d 1.) Dodd said he knew only that a man named Davis was in custody, but did not know which of the men he viewed was that person; that the men were of similar size, shape and color and did not identify themselves. Erjavec thought that the participants in the lineup did give their names, but agreed with Dodd that all five men presented for viewing were of the same general appearance. The defendant stated that he gave his name at the lineup. The defendant bore the burden of persuading the court that the procedure was unfair. The judge was not convinced, and denied tire motion to suppress the identification testimony. His denial of the motion implies that he must have disbelieved Davis and discredited Erjavec’s memory. The judge’s decision to accept Dodd’s testimony must be upheld unless it can be said to be clearly unreasonable. (People v. Haskell (1968), 41 Ill.2d 25, 241 N.E.2d 430.) We cannot say that his resolution of the evidentiary conflict was contrary to reason. Dodd attended only the one lineup, in which he was intensely involved, so his memory of what took place could be expected to have greater reliability than that of the police officer, who had attended other lineups in the interim before trial. Davis’ self-serving corroboration of Erjavec’s recollection was, understandably, discounted by the judge. Accepting the testimony of Dodd, as the court did, what had taken place was the classically approved identification proceeding, in which the complainant selected the defendant from a group of similar appearance, all of the participants being unknown to the witness. At the trial, the defendant’s counsel was not deprived of his right to question Dodd’s credibility. He vigorously exploited any defects in Dodd’s memory, drawing from him admissions of his inability to describe his assailants to the police, and of his attenuated opportunity to observe them. The weight to be accorded the complainant’s identification in light of those admissions was an issue for the trier of fact. People v. Bates (1973), 9 Ill.App.3d 882, 293 N.E.2d 358.

In a related point, the defendant argues that, conceding the admissibility of the identification testimony, it was insufficient to establish his guilt beyond a reasonable doubt. Positive and credible identification by one witness is sufficient to support a conviction (People v. Green (1969), 118 Ill.App.2d 36, 254 N.E.2d 663) even in the face of alibi testimony by a greater number of witnesses. (People v. Catlett (1971), 48 Ill.2d 56, 268 N.E.2d 378.) Davis produced no witnesses at all to support his alibi. Moreover, Dodd’s identification testimony did not stand alone. Davis was arrested within a day of the crime, in possession of the fruits of that crime. A conviction can be sustained upon circumstantial evidence as well as direct evidence if it is of such a convincing nature that it satisfies the jury of the defendant’s guilt beyond a reasonable doubt. (People v. Palmer (1970), 120 Ill.App.2d 471, 257 N.E.2d 172; People v. Belousek (1969), 110 Ill.App.2d 442, 249 N.E.2d 693; People v. Lofton (1965), 64 Ill.App.2d 238, 212 N.E.2d 705.) The facts of People v. Palmer are especially analogous. Upholding an armed robbery verdict, the court there held that finding the victim’s wallet within the vicinity of the accused’s arrest, 4 days after the robbery, substantially corroborated the victim’s identification of the accused as his assailant. Here the defendant had actual possession of the victim’s stolen belongings less than 24 hours after the robbery. This incriminating evidence, plus the victim’s unshakable identification, established the defendant’s guilt beyond aH reasonable doubt.

On direct examination the defendant testified to his arrest at Goldblatt’s and stated that he had not posted bad until 5 months afterward. The prosecutor then drew from him the admission that he had seen Dodd at a lineup after his arrest. The defendant argues that this question exceeded the scope of direct examination and prejudiced him by rehabilitating the complaining witness, whose in-court identification had been undermined by his acknowledgment that he did not describe his attackers to the police. The State replies that the question was proper cross-examination, and that in any event the defendant was not prejudiced by the inquiry.

Cross-examination should be limited to matters brought out on direct and it is improper to question a witness concerning irrelevant matters for the purpose of contradicting his testimony. (People v. Kirkwood (1959), 17 Ill.2d 23, 160 N.E.2d 766.) At the same time, it is competent to develop all the circumstances within the knowledge of a witness which qualify his direct testimony, even if, strictly speaking, the subject introduced is new and one which should be part of the cross-examiner s own case. (People v. Provo (1951), 409 Ill. 63, 97 N.E.2d 802.) It is for the trial judge to determine the permissible scope of cross-examination and his ruling will not be disturbed unless it constitutes a clear abuse of discretion, leading to manifest prejudice to the defendant. (People v. Nugara (1968), 39 Ill.2d 482, 236 N.E.2d 693, cert. denied, 393 U.S. 925; People v. Clark (1968), 96 Ill.App.2d 247, 238 N.E.2d 220.) The court accepted the assistant State’s Attorney’s explanation that once the defendant testified to his arrest and the long delay in posting bail, it was proper to seek further explanation of the 5-month period of custody. The court did not abuse its discretion in overruling the objection to the prosecutor’s question.

Furthermore, the defendant has not shown the prejudice requisite for reversal. The State’s question only brought out the fact that he had seen Dodd at the lineup, not that he had been identified. The defendant argues that the logical inference was that identification had indeed taken place, and that this was aggravated by the fact it came from the defendant himself, thus treading perilously close to his rights against self-incrimination. But the jury might easily have concluded from the State’s forbearance that he had not been identified at the lineup. It must be remembered that the court had already ruled that the identification testimony was admissible — the State had merely chosen not to use it. Thus, the inference potentially most damaging to the defendant could scarcely have been prejudicial; it amounted to no more than the truth, from a competent source, on a relevant matter. People v. Smith (1969), 105 Ill.App.2d 8, 245 N.E.2d 23, relied on by the defendant, is not pertinent to the facts of this case. It concerned erroneously admitted hearsay testimony which was used to strengthen an identification.

While addressing prospective jurors, the judge commented:

“During the course of the trial, the Court will first hear motions by the lawyers outside of your presence, in order to determine the admissibility of evidence. This procedure should have no significance to you as jurors, because the Court is properly asked to make rulings before evidence may be offered or excluded, and it would be improper to allow the jury to hear it if it should be excluded.”

The defendant’s final assertion of error is that this comment led the jury to believe there was inculpatory evidence which would be withheld from them, thereby prejudicing his case and denying him due process of the law. He bases this assertion on speculation that some of the jurors must have been aware of, and opposed to, processes in the law which to laymen appear to exclude evidence relevant to guilt on highly technical grounds; that therefore they would construe the comment to imply that certain evidence of the defendant’s guilt would actually be withheld from them. He emphasizes that despite a long recess in the trial, taken to hear motions, no evidence actually was suppressed, thus making the hypothesized suspicions of the jurors whoUy unfounded in fact.

The defendant bases his claim of error on a comment which, though perhaps unnecessary to a proper comprehension by the jurors of their duty, did no harm. It contained only a neutral reference to “motions by the lawyers,” thus encompassing both prosecution and defense. Remarks do not constitute error if they do not discriminate against an accused. (See People v. Calcaterra (1965), 33 Ill.2d 541, 213 N.E.2d 270; People v. Smalley (1973), 10 Ill.App.3d 416, 294 N.E.2d 305.) The trial judge did not intimate which party’s evidence — if any — might be excluded. It is only through a tortuously speculative chain of inference that the defendant deduces discrimination from so innocuous a comment Even if we could agree with his reasoning, this isolated, inconsequential comment must be evaluated for its effect within the context of the judge’s behavior throughout the remainder of the trial. (People v. Winstead (1967), 90 Ill.App.2d 167, 234 N.E.2d 175.) The whole record reveals that, far from seeking to associate trial delays with efforts by the defense counsel to suppress evidence, the judge went out of his way to avoid such an implication. He went so far as to personally assume responsibility for interruptions and delays, citing the court’s other pressing business. The challenged comment cannot be construed as error.

The judgment is affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Addison, Defendant-Appellant.
    (No. 58339;
    First District (3rd Division)
    May 2, 1974.
    James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

MEJDA, J., took'no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. D. C. Hardy, Defendant-Appellant.
    (No. 58399;
    First District (3rd Division)
    May 2, 1974.

      James J. Doherty, Public Defender, of Chicago (Lee Bastianoni, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., James S. Veldman, and Daniel F. Murray, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

DEMPSEY, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Armstrong, Defendant-Appellant.
    (No. 59345;
    First District (3rd Division)
    May 2, 1974.
   PER CURIAM.

DEMPSEY, J., took no part.

Paul Bradley, Deputy Defender, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago, for the People.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William T. Redwine, Defendant-Appellant.
    (No. 56050;
    First District (5th Division)
    May 3, 1974.
    James D. Montgomery and Frederick F. Cohn, both of Chicago, for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda W. Conley, Assistant State’s Attorneys, and Nicholas P. Iavarone, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant was found guilty of murder, armed robbery, and unlawful possession of weapons in violation of sections 9 — 1, 9 — 1(a)(2), 9 — 1(a)(3), 18 — 2, and 24 — 1(a)(7) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, pars. 9 — 1, 9 — 1(a)(2), 9 — 1(a)(3), 18 — 2, and 24 — 1(a) (7)) and was sentenced to a term of 25 to 80 years. He appeals contending: (1) that the evidence did not prove him guilty beyond a reasonable doubt, (2) that the court’s findings were inconsistent, and (3) that he was denied a fair trial when the court improperly shifted the burden of proof to him.

The following evidence was adduced at trial:

Willis Bulliner testified for the State:

On June 19, 1970, at about 1:25 or 1:30 A.M., he was watching television at his home on the northwest corner of 74th Street and Union in Chicago when he heard two shots. The first shot was “a real loud blast, like a shotgun, and tire other was a sharp report like a small hand pistol.” He heard a car door slam and someone running. He went to the window and saw a police squad car facing west on 74th Street parked near the curb next to the house. The light was on in the police car and he saw the officer lying in it. He told his wife to call the police and he went down to the car. There was a large hole in the window on the passenger side of the car. The officer (who had been identified as Officer Kenneth Kaner) lay dead on the seat.

Chicago Police Officer Edward Brown testified for the State:

On June 19, 1970, he and his partner, Carl Malek, were heading east on 72nd Street at Halsted in their unmarked car on routine patrol. Malek was driving. At about 1:28 or 1:29 A.M., they saw a two-door 1963 Corvair without license plates and taillight reflectors facing east on 72d Street. They followed the Corvair east on 72d and turned on their oscillating light just as the Corvair turned left onto Union Avenue. The three passengers in the back seat of the Corvair looked back at their car. The Corvair stopped on Union in the middle of the street, midway between 71st and 72d Streets. Malek stopped about three feet behind the Corvair. The driver of the Corvair, Bradley Green, and the passenger in fire front seat, William Redwine, exited the car. Redwine. immediately put his anns in the air as if someone had said, "Stick them up.”

Brown walked toward the front of the stopped car. He observed a "License Applied For” sticker in the name of William Redwine on the windshield. While walking back, he noticed an open bottle of Miller High Life Beer on the front floor. As he opened the car door to retrieve the beer, one of the three passengers in the back seat moved. Bruce Sharp was seated directly behind the driver’s seat with Dwight Gavin in the middle and Jerome Amos next to Gavin. Brown saw the butt of a gun (a .38 caliber Colt) on the floor between Gavin’s feet. He quickly grabbed the gun and warned Malek that the other two passengers might be armed. He ordered the three passengers out of the car and searched the car while Malek watched the offenders. He found some shotgun shells on the floor of the back seat and noticed the stock of a shotgun extending onto the floor from under the front passenger’s seat. He unloaded the shotgun, removing one live and one spent cartridge. He smelled the odor of fresh powder on the expended cartridge. He also unloaded the .38 Colt and put both guns on the hood of the car. He told Malek to call for assistance. When Malek went back to the police car, they heard for the first time that a police officer had been shot at 74th and Union.

At about that time, a police car driven by Chicago Police Officer Frederick Cowan came down Union. The officers asked Cowan what their location was so they could call .for assistance. Cowan backed his car up to look at a street sign and then stayed to render assistance. Cowan searched the offenders and Malek completed searching the car. Malek discovered another revolver (a .38-caliber Smith and Wesson), some .38 cartridges and some shotgun shells. The offenders were then transported to the 7th District. At the station, the officers inventoried the evidence which included one spent .38 cartridge and a spent shotgun shell, and made their reports.

Chicago Police Officer Carl Malek testified for the State:

His testimony substantially corroborated Officer Brown’s testimony. In addition, he testified that while he was driving down 72nd Street he observed a Corvair stopped in the middle of the street between Union and Emerald and that Bradley Green left the front passenger’s seat, walked around the car, and began driving. The car had neither license plates nor taillight reflectors. When the Corvair stopped, Redwine raised his hands immediately after leaving the car. Malek stated that he found a gun (the .38 Smith and Wesson) underneath the driver’s seat and some shotgun shells in the glove compartment.

Chicago Police Officer Frederick Cowan testified for the State:

At about 1:25 or 1:30 A.M. on June 19, 1970, he received a radio call that an officer had been shot at 74th and Union. He proceeded in his marked patrol car down 71st Street and turned right on Union where he saw a Corvair in the middle of the street. He got out of his car intending to ask that the stopped car be moved when he recognized Officers Brown and Malek. At their request, he backed his car up to the comer to determine the exact location and then searched the offenders. He recovered some shotgun shells from Sharp.

The other evidence at trial indicates that Officer Kaner died as a result of being shot in the head by a shotgun and by a .38-caliber revolver. Although it appears that the cartridges from the two .38-caliber revolvers recovered at the time of the arrest were commingled prior to being inventoried, ballistics evidence indicated that the .38-caliber weapon which fired one of the fatal shots was the Smith and Wesson revolver found under the drivers seat of the Corvair. The .38-caliber Colt revolver, which was found between Gavin’s feet on the floor of the back seat, was identified as Officer Kaner’s service revolver. A partial fingerprint found on Officer Kaner’s gun was proved to be the fingerprint of Jerome Amos’ right ring finger. The shotgun found under the passenger’s seat in the Corvair could not be ballistically identified as the other murder weapon. The two-door Corvair was owned by defendant Redwine. Mrs. Bulliner’s phone call was received by the police at 1:29 A.M. on June 19, 1970, and a radio call was dispatched at 1:31 A.M.

At the conclusion of this evidence, the State rested its case against Redwine, Green, and Amos. Sharp and Gavin had been previously severed from the case. (It appears that Sharp and Gavin pleaded guilty to the charges.) Without presenting any evidence, Green rested his case and specifically disclaimed further proceedings. Although defendant Redwine initially rested his case, with the permission of the court, he withdrew this decision. Motions for findings of not guilty on behalf of both Amos and Redwine were denied.

Jerome Amos testified on his own behalf and on behalf of defendant Redwine:

On the evening of June 18, 1970, he was playing basketball. Redwine, Green and Sharp were present. During the. evening, they drank both wine and beer. At about 12 or 12:30 A.M., he, Redwine, Green and Sharp entered Redwine’s car. He sat in the right rear passenger’s seat; Sharp also sat in the backseat; Redwine sat in the right front seat; and Green sat in the driver’s seat. Without driving anywhere, the four of them sat in the car talking and drinking. Gavin was not present. Soon, Amos went to sleep. He did not wake up until Gavin, who had not been in the car when he went to sleep, nudged him and said the police were coming. He looked back and saw the lights of a car behind them. He noticed a shotgun on the floor in front of him and saw Gavin wiping off a handgun. When Gavin put the weapon between the two of them, he pushed it away with his right hand saying, “Don’t put it by me.” Gavin then put the weapon somewhere on the floor. After the car was stopped, Green and Redwine got out. Amos did not notice Redwine put his hands in the air. Subsequently, Officer Brown reached into the car and grabbed the gun. Although Amos said he drank about a quart of beer and a couple of pints of wine, he did not know how much alcohol Redwine consumed during the evening.

Following the testimony of certain character witnesses for Amos and final arguments, the court found Green and defendant Redwine guilty as charged. Jerome Amos was acquitted.

OPINION

Defendant contends that the circumstantial evidence presented at trial did not prove beyond a reasonable doubt that he actually shot Officer Kaner or that he was legally accountable for the murder. Specifically he argues that guilt cannot be predicated solely upon his mere presence at the scene of the murder or at the scene of the arrest or upon his possession of or proximity to the fruits of a robbery or the instrumentalities of the crimes.

Criminal liability may be based upon a persons own acts or upon the acts of another for which one is legally accountable. Section 5 — 2(c) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 5 — 2(c)) indicates that a person is legally accountable for the conduct of another when:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense.”

This section codifies, with certain modifications, the common law rules regarding principals of the first and second degrees and regarding accessories before the fact. Moreover, section 5 — 3 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 5 — 3) provides that:

“A person who is legally accountable for the conduct of another which is an element of an offense may be convicted upon proof that the offense was committed and that he was so accountable, although the other person claimed to have committed the offense has not been prosecuted or convicted, or has been convicted of a different offense or degree of offense, or is not amenable to justice, or has been acquitted.”

Mere presence at the scene of the crime, without more, is insufficient to hold anyone legally accountable. (People v. Shields, 6 Ill.2d 200, 207, 127 N.E.2d 440, 444.) However, presence at the scene of the crime may be considered along with other circumstances to determine accountability. People v. Nugara, 39 Ill.2d 482, 236 N.E.2d 693.

Circumstantial evidence alone may justify conviction of a crime, but such evidence must not only be consistent with defendant’s guilt but. also be inconsistent with any reasonable hypothesis of innocence. People v. Branion, 47 Ill.2d 70, 265 N.E.2d 1.

In the instant case, although inferences must be drawn from circumstantial evidence, we believe defendant was proved guilty beyond a reasonable doubt. Clearly, Officer Kaner’s death was the result of criminal acts. He was shot in the head with a shotgun and a .38-caliber pistol and his service revolver was taken. From the fact that two shots were fired accurately, in rapid succession, and from different weapons, it is reasonable to believe that at least two people committed the crimes. The slamming of a car door immediately after the shooting indicates that a car must have been present at the scene. Since a recently fired shotgun, the .38-caliber murder weapon, and the officer’s service revolver were recovered from defendant’s car, it must have been defendant’s car which was present at the scene. From the facts that the fruits of the crimes and the instrumentalities of the crimes were all found in defendant’s car, just moments after the crimes and within a few blocks of the scene, it may be inferred that the persons who actually committed the crimes were in defendant’s car. Because his car was present at the scene of the crimes and because he was present when his car was stopped just moments after the crimes and within a few blocks of the scene, defendant must have been present at the scene of the crimes.

Even if we were to assume that defendant himself did not actually commit the crimes, something more than mere presence at the scene of the crimes was proven here. We believe there is sufficient evidence that defendant intentionally aided and abetted the commission of the crimes. The crimes here were not the acts of one person acting alone. The crimes occurred late at night between 1:25 and 1:29 A.M. Defendant’s car was present at the scene of the crimes and was the means of escape. The evidence indicates that the defendant was driving his car after it left the scene of the crimes and certainly he voluntarily permitted his car to be used as the means of escape. The presence of shotgun shells in the glove compartment of defendant’s car when a shotgun was one of the murder weapons is evidence of defendant’s prior knowledge and participation in the crimes. Also, defendant’s act of putting his hands in the air when his car was stopped so soon after the crimes and so close to the scene could certainly be considered by the trier of fact. In these circumstances, we believe the State proved beyond a reasonable doubt that defendant was legally accountable for tiie murder and armed robbery of Officer Kaner.

Defendant next contends that the court’s findings were inconsistent because the court found Amos not guilty. In support of his contention, defendant relies solely upon People v. Ethridge, 131 Ill.App.2d 351, 268 N.E.2d 260. In Ethridge, defendant and three codefendants were tried together by the court. The evidence against Ethridge consisted of the eyewitness testimony of two police officers while the evidence against a co-defendant consisted of the testimony of the same two police officers, of a third police officer, and of certain physical evidence. Both Ethridge and his co-defendant testified. However, the trial court convicted Ethridge and acquitted his co-defendant. The appellate court reversed Ethridge’s conviction based upon the inconsistencies in the trial court’s findings.

In the instant case, unlike Ethridge, there is nothing inherently inconsistent in the findings of the trial court. Although Amos was acquitted and defendant Redwine was convicted, Amos testified explaining his presence in the car and the presence of his fingerprint on Officer Kaner’s gun. Here, the trial court valued Amos’ testimony above the circumstantial evidence of his guilt. Amos’ testimony, specifically adopted by defendant Redwine, did not contradict the inferences of Redwine’s guilt raised by the evidence.

Defendant also contends that he was denied a fair trial when the court improperly shifted the burden of proof to him. There is no evidence in the record before us that the court shifted the burden of proof to defendant. Here, the court properly relied upon the uncontradicted inferences of defendant’s guilt raised by the circumstantial evidence presented in the State’s case. This reliance upon the evidence presented at trial was not error.

The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.

       The exhibits, identified by Bulliner, indicate that the driver’s door of the police car was open. Bulliner testified that the light in the police car was on. Thus, it was not the door of the police car which was slammed.