{ "id": 5602498, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN McTUSH et al., Defendants-Appellants", "name_abbreviation": "People v. McTush", "decision_date": "1979-10-26", "docket_number": "No. 78-725", "first_page": "603", "last_page": "627", "citations": [ { "type": "official", "cite": "78 Ill. App. 3d 603" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "295 N.E.2d 476", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. App. 3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5399302 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/1051-01" ] }, { "cite": "387 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 74", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3238447 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0074-01" ] }, { "cite": "196 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 2d 103", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5270426 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/47/0103-01" ] }, { "cite": "346 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 560", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2717600 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0560-01" ] }, { "cite": "360 N.E.2d 543", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2895763 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0973-01" ] }, { "cite": "293 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927327 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0550-01" ] }, { "cite": "335 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2966390 ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0298-01" ] }, { "cite": "367 N.E.2d 351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3387788 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0266-01" ] }, { "cite": "317 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "58 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953301 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/58/0202-01" ] }, { "cite": "356 N.E.2d 776", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428815 ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0536-01" ] }, { "cite": "295 N.E.2d 462", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934870 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0143-01" ] }, { "cite": "365 N.E.2d 576", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 274", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5643000 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0274-01" ] }, { "cite": "382 N.E.2d 383", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 155", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3327942 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0155-01" ] }, { "cite": "359 N.E.2d 1237", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 660", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2892694 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0660-01" ] }, { "cite": "367 N.E.2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 343", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3389104 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0343-01" ] }, { "cite": "372 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 9", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3417486 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0009-01" ] }, { "cite": "382 N.E.2d 519", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 559", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3325007 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0559-01" ] }, { "cite": "289 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "52 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393878 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0564-01" ] }, { "cite": "288 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925636 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0083-01" ] }, { "cite": "367 N.E.2d 666", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "67 Ill. 2d 222", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812665 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/67/0222-01" ] }, { "cite": "288 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 525", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395078 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0525-01" ] }, { "cite": "372 N.E.2d 1077", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 234", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422518 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0234-01" ] }, { "cite": "84 S. Ct. 1129", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "11 L. Ed. 2d 983", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "376 U.S. 966", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379590, 379463, 379468, 379760, 379729, 379795, 379484 ], "opinion_index": 0, "case_paths": [ "/us/376/0966-04", "/us/376/0966-02", "/us/376/0966-03", "/us/376/0966-07", "/us/376/0966-06", "/us/376/0966-01", "/us/376/0966-05" ] }, { "cite": "194 N.E.2d 308", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "29 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2822132 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/29/0367-01" ] }, { "cite": "354 N.E.2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491325 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0377-01" ] }, { "cite": "292 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926773 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0465-01" ] }, { "cite": "275 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 988", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5313827 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0988-01" ] }, { "cite": "265 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2904822 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0300-01" ] }, { "cite": "346 N.E.2d 61", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 369", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2713967 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0369-01" ] }, { "cite": "359 N.E.2d 1157", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 374", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2896605 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0374-01" ] }, { "cite": "391 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 690", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5584378 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0690-01" ] }, { "cite": "250 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1979, "opinion_index": 0 }, { "cite": "42 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848428 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/42/0508-01" ] }, { "cite": "98 S. Ct. 1513", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "55 L. Ed. 2d 533", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "435 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3106, 3091, 2397 ], "opinion_index": 0, "case_paths": [ "/us/435/0937-02", "/us/435/0937-01", "/us/435/0937-03" ] }, { "cite": "367 N.E.2d 1313", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "67 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811071 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/67/0564-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 4, "pin_cites": [ { "page": "199-200" } ], "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 6, "pin_cites": [ { "page": "114" }, { "page": "154" }, { "page": "2253" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "295 N.E.2d 449", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "54 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2931885 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/54/0111-01" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "263 N.E.2d 57", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2898571 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0229-01" ] }, { "cite": "365 N.E.2d 501", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3368513 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/1026-01" ] }, { "cite": "207 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. 2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841109 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0441-01" ] }, { "cite": "379 N.E.2d 710", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 991", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5620444 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0991-01" ] } ], "analysis": { "cardinality": 1566, "char_count": 57111, "ocr_confidence": 0.914, "pagerank": { "raw": 9.727882226681696e-08, "percentile": 0.5304708884572035 }, "sha256": "5f39e678d47c2a29a1787f37164184e7b9f534378b99b7e468f215a5c0238535", "simhash": "1:aa6053bc37e8edc5", "word_count": 9708 }, "last_updated": "2023-07-14T14:30:08.757403+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN McTUSH et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court: \u2022\nDefendants John McTush and Lonzell Stone were jointly indicted for the murders and armed robberies of two men and for burglary. McTush was tried before a jury and was found guilty of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9\u20141), armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18\u20142), and burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19 \u2014 1). Stone was simultaneously tried without a jury in a bench trial and was found guilty \u201cin manner and form as charged in the indictment.\u201d Following a hearing in aggravation and mitigation, McTush was sentenced to a term of from 60 to 90 years imprisonment and Stone was sentenced to a term of from 25 to 50 years imprisonment. Both defendants appeal.\nWe note at the outset that the evidence adduced at the trials differ as to each defendant. It is therefore necessary that we recite the testimony at some length. For purposes of clarity, we will first present the pertinent evidence adduced at the suppression hearing and jury trial of McTush.\nPrior to trial, McTush moved to suppress evidence of a photographic identification of him and any resultant in-court identification. Stone did not join in this motion. At the suppression hearing the following pertinent evidence was adduced.\nFor the defendant\nJohn Ridges, Chicago Police Officer\nOn February 21, 1976, he was assigned to investigate a double homicide which occurred the day before at the Kar-Life Battery Shop at 6959 South Ashland in Chicago. In the course of his investigation a lineup was held on March 18, 1976. The lineup consisted of five men and included McTush. Terrence Watson, an 11-year-old boy, and Ira Watson, his mother, separately viewed the lineup through a one-way mirror. Neither the boy nor his mother were able to identify any member of the lineup as a participant in the double homicide of February 20.\nOn May 24,1976, he was present when Mrs. Watson and her son were interviewed by an assistant State\u2019s Attorney. While his mother waited in another room Terrence was shown \u00e1 photograph of a lineup conducted on February 21, 1976. Terrence identified Stone from the photograph. Terrence was then shown photographs of six individuals from which he identified McTush and stated that he had previously seen McTush at the lineup on March 18. Mrs. Watson was then shown these photographs. She identified Stone as \u201chaving all the physical characteristics and similarities\u201d of the man she saw at the battery shop on February 20.\nOn cross-examination, Ridges testified that Terrence told him he previously did not identify Stone or McTush because he was afraid of what might happen to him and his family. Ridges noticed at the March 18, 1976, lineup that Terrence Watson appeared very upset and nervous. He further testified that sometime after May 24, Terrence Watson told him he knew McTush from his neighborhood prior to February 20, 1976.\nAt the conclusion of Ridge\u2019s testimony, the trial court found the photographic identifications of May 24 to be impermissibly suggestive and required counsel for McTush to elicit evidence of independent origin. Counsel for McTush called Terrence Watson to the stand.\nTerrence Watson\nOn the evening of February 20, 1976, he was playing on the street outside of the Kar-Life Battery Shop. When he looked through the window of the shop, he saw David Thomas, an employee of the shop, hit McTush in the mouth. He knew it was McTush because he was familiar with McTush from the neighborhood.\nAfter hearing this testimony by Terrence Watson, the trial court ruled that the photographic identification of McTush made by Terrence Watson on May 24 was impermissibly suggestive and would be suppressed. The trial court further ruled that an independent origin for Terrence Watson\u2019s identification existed and therefore an in-court identification of McTush by Terrence Watson would be permitted.\nThe following pertinent evidence was adduced at the jury trial of McTush.\nJoseph Meier, Chicago Police Officer\nAt approximately 5 p.m. on February 20, 1976, he and his partner Officer Santucci responded to a radio call and proceeded to the Kar-Life Battery Shop at 6959 South Ashland, on the northeast corner of Ashland Avenue and 70th Street. The shop has windows facing both streets. Upon walking through the door on the 70th Street side of the shop, he saw a body lying face down on the floor. It was the body of David Thomas. He then proceeded to the rear work area of the shop and found the body of Dennis Harrison. After the arrival of his superiors, he began to question people gathering outside the shop.\nOn cross-examination, he stated that one of the people he questioned was Terrence Watson. According to Watson, two men were involved in the killing. One of the offenders wore a green coat with white fur trim and the other wore a black coat. The man with the black coat was approximately 18-19 years old. Watson also said that one of the offenders had a fight with David Thomas, a Kar-Life employee, inside the shop. On redirect, he stated that Terrence Watson was very nervous when they talked.\nJohn Tucker\nHe lives on the first floor of the apartment building on the south side of 70th Street across from the Kar-Life Battery Shop. While sitting in his living room around 5 p.m. on February 20,1976, he saw a brown 1969 or 1970 Oldsmobile park on the south side of 70th Street. Two men got out of the car and walked toward the battery shop. The car\u2019s right front fender was damaged. He identified People\u2019s Exhibit 10 as a photograph of that car.\nOn cross-examination, he admitted that he failed to inform the investigating police officer of the damaged fender of the car.\nWilliam Thomas\nHe lives in the second floor apartment above John Tucker on 70th Street. On the evening of February 20, 1976, he was reading a newspaper at the seat near the front window of his apartment. Upon looking outside, he noticed a brown car with a black top parked on 70th Street. At that time, he observed the first three digits of the license plates on the car were either 846 or 648. The car had gained his attention because of its similarity to his wife\u2019s car.\nOn cross-examination, Thomas admitted that he did not know when the car was parked outside or who arrived in the car.\nTerrence Watson\nHe was 11 years old on February 20, 1976. At approximately 5 p.m. on that day, he and a couple of friends were flying a kite on 70th Street just east of Ashland. He saw a brown Delta 88 Oldsmobile with a black top park on 70th Street. The car had a dent in the right front fender. The driver of the car was wearing a green leather coat with white fur trim and the passenger was wearing a gray leather coat. He identified in court Stone as the driver of the car and McTush as the passenger. He had seen both defendants before that day. When they got out of the car, McTush crossed the street and entered Kar-Life Battery Shop. Stone stood outside the battery shop. Watson went to the window of the shop and looked into the front area of the shop. He saw David Thomas, an employee of the shop, hit McTush in the mouth. McTush pointed a gun at Thomas and shot him several times at close range. At this point, Stone walked past Watson and went inside the shop. He saw Stone walk through the front part of the shop and enter the rear working area out of his view. He then heard three more gun shots. While Stone was in the work area, McTush was going through the pockets of David Thomas. Stone and McTush left the shop and were walking toward him to their car. As they were approaching, he fled east on 70th Street and then ran home. He identified People\u2019s Exhibit 10 as a photograph of the car he saw defendants driving that day.\nOn cross-examination, he denied telling the police on February 20 that he went to the window of the shop after he heard the first set of gun shots or that Stone was the man he saw inside the shop. He further denied telling the police that he ran as soon as Stone saw him. He told a police officer on February 20 that he had seen McTush before that day. He did not recall whether he told the assistant State\u2019s Attorney on May 24,1976, that he knew McTush before February 20. He admitted he viewed a lineup on March 18,1976, through a one-way mirror and did not identify anyone in that lineup as one of the offenders. On redirect, he stated he was a \u201clittle bit\u201d afraid when he saw David Thomas killed. He also stated he had seen McTush about four times prior to February 20, 1976.\nMrs. Ira Watson\nShe is the mother of Terrence Watson and was in their apartment on the evening of February 20, 1976. Their apartment is on the second floor of the building adjacent and north of Kar-Life Battery Shop on Ashland Avenue. When Terry was outside playing, she heard several noises that sounded like gun shots. She looked out of the window, which faced south, and saw a man standing outside of the Ashland Avenue window of the battery shop. The man wearing a green coat with a white collar and a red cap. He entered the shop and went to the rear working area. She again heard noises which sounded like gun shots. After the shots, a man with a gray leather coat came out of the shop and then the man with the green coat exited. They walked south to the comer and turned east on 70th Street. Defendant McTush \u201cstrongly resembles\u201d the man in the gray coat, but she could not be positive.\nTerry returned home shortly after the second set of gun shots. She asked Terry if David Thomas had been target practicing inside the shop. He said no. She then asked him what were those noises. Terry replied, \u201cThose dudes killed him\u201d. Terry looked \u201cvery frightened, stunned.\u201d Although Terry told her not to go down to the battery shop, she did. She discovered Thomas\u2019 body on the floor in the front of the shop and then called the police. Later that night, she noticed Terry was still frightened and would not sleep apart from his parents.\nThe next day February 21, 1976, she and Terry were brought to the police station to observe a lineup. Terry was nervous and frightened and did not want to go to the police station. On March 18, 1976, they were brought to the police station to observe another lineup. Terry was again reluctant and appeared frightened. After viewing the lineup, she said one of the men \u201cstrongly resembled\u201d the man in the gray coat. That man was McTush.\nOn cross-examination, she denied telling the police one of the men wore a black leather coat. She admitted she never saw a complete frontal view of the man in the gray coat. She believes Terry told the police prior to May 24, 1976, that he had seen McTush in the neighborhood before February 20, 1976.\nRosalind Patterson\nShe knew defendant McTush for approximately a year and a half prior to February 20,1976. She and McTush jointly owned a brown 1969 Delta 88 Oldsmobile. The car had a black top and the right front fender was damaged. She identified People\u2019s Exhibit 10 as a photograph of their Delta 88 Oldsmobile as it appeared on February 20, 1976. On that day, she saw the defendant in the Delta 88 at 9:30 a.m. and at noon. At approximately 6:05 p.m. that evening, McTush drove to her home in the Delta 88. He was wearing a gray leather coat. When she left her home about 25 minutes later she took the Delta 88 and left him another car which they also jointly owned.\nOn cross-examination, she stated the reason why she took the Delta 88 was because the heater did not work on the other car. She said an assistant State\u2019s Attorney suggested that she testify that McTush told her to exchange cars the evening of February 20. She said this was not the truth. On redirect examination, she admitted signing a statement on February 22, 1976, in which she stated that McTush told her to exchange cars. This statement was given before she ever talked to an assistant State\u2019s Attorney.\nClifford Lawrence\nHe lived with his wife at 7126 South Honor\u00e9. McTush and Stone lived with them on a part-time basis. Between 5 p.m. and 5:30 p.m. on February 20, 1976, Stone and McTush came home. They stayed in the house approximately 25 minutes to change clothes and then left separately. He asked McTush where he had been all day. McTush said he had been to visit his brother in Joliet, Illinois, and had left Joliet for Chicago at 3:15 p.m.\nOn cross-examination, he admitted that McTush came into the house about five minutes after Stone. He didn\u2019t notice the color of the coat McTush was wearing. He didn\u2019t see McTush change clothes or leave the house because he had fallen asleep.\nWilliam Richardson\nAs general manager of the Kar-Life Battery Company, one of his duties was to pick up the receipts from the Kar-Life Battery Shop at 6959 South Ashland. Every two days he would go to the battery shop and pick up the receipts from David Thomas. Generally, Thomas carried the receipts in his pocket. On the morning of February 20, 1976, he called Thomas and asked him, \u201cif he had a lot of money.\u201d Thomas said no. After being notified of the homicides, he went to the battery shop at approximately 6:45 p.m. He searched for the receipts, but found no money.\nMary Ann Moran, Microanalyst, Chicago Police Department\nUpon examination of powder burns on the clothes worn by David Thomas on the day he was killed, she was able to determine he was shot at close range.\nThomas Morley, Chicago Police Officer\nOn April 15, 1975, he spoke with a man who identified himself as John McTush. McTush said he lived at 7006 South Ashland and 7126 South Honor\u00e9.\nOn cross-examination, he admitted he had never been to either of these addresses and that he was a Chicago police officer. On redirect examination he identified McTush in court.\nJohn McKennon, Chicago Police Officer\nOn March 20,1975, he spoke with McTush. McTush told him he lived at 7006 South Ashland Avenue.\nOn cross-examination, he admitted he had not been to McTush\u2019s apartment at 7006 South Ashland and that he was a Chicago police officer.\nBefore resting the State\u2019s case, a certified copy of a license application filed by Rosalind Patterson and John McTush was entered into evidence. The license application revealed that their jointly owned 1969 Oldsmobile was issued license plate 846 645 on January 27, 1976.\nFor the defendant, John McTush\nJohn Ridges, Chicago Police Officer\nOn February 21,1976, he was assigned to investigate the murders of David Thomas and Dennis Harrison. In the course of the investigation, on March 18,1976, McTush was placed in a lineup with four other men. Mrs. Ira Watson and her son Terrence separately viewed the lineup through a one-way mirror. Neither of them made a positive identification of McTush at that time.\nOn May 24, 1976, he brought Mrs. Watson and Terrence to an interview with an assistant State\u2019s Attorney. He was present at the interview between the assistant State\u2019s Attorney and Terrence. During the interview, Terrence never said he knew McTush from the neighborhood. It was not until October 6, 1977, that he learned that Terrence Watson knew McTush from the neighborhood.\nOn cross-examination, he described Terrence Watson at the March 18 lineup as \u201cfidgety,\u201d \u201cnervous,\u201d and \u201cvery afraid.\u201d In addition, Watson\u2019s \u201ceyes were watering\u201d and \u201chis speech was hesitant.\u201d Mrs. Watson identified McTush in the March 18th lineup as having \u201call the physical characteristics\u201d of one of the men she saw at the scene of the crime.\nInvestigator Thomas Quinn, Chicago Police Department\nHe interviewed Terrence Watson and Mrs. Watson at their apartment and later at the police station on February 20,1976. Terrence Watson told him he saw two men enter the battery shop and then he heard gun shots. After hearing the gun shots, Terrence ran to the window of the shop. Terrence saw a man, who was bleeding from the mouth, standing over the body of David Thomas. When the man saw Terrence outside the window, Terrence ran. He is unsure whether it was Terrence Watson or another witness who said the man standing over David Thomas was wearing a green coat. He does recall that Terrence Watson said one man was wearing a green coat and the other man was wearing a black leather coat. He does not recall whether Terrence Watson saw either of the men shoot someone.\nOn cross-examination, he testified that Terrence Watson was \u201cterrified\u201d when he interviewed him shortly after the murders. Terrence was very reluctant to talk about what he had seen and would volunteer no information. Later that evening at the police station, Terrence remained frightened and reluctant to talk. He believes that without Mrs. Watson\u2019s persuasion, Terrence would not have talked with the police.\nFather T. Kimbell Cannon\nHe is a chaplain at the Cook County Jail. On February 20, 1976, he was at the Stateville Penitentiary in Joliet, Illinois, to hold religious services. At approximately 3:25 p.m. on February 20, he saw McTush at the front gate of the penitentiary. They talked for about five minutes.\nOn cross-examination, he admitted that his memory of the specific time he saw McTush is based on the sign-in sheet kept at the penitentiary.\nEdward Jordan\nAs an employee of Stateville Penitentiary, he keeps records of the visitors of each prisoner. From these records, he testified that on February 20, 1976, prisoner Nathaniel McTush was visited by defendant McTush and Doris Walker.\nOn cross-examination, he stated that the visitors sign-in sheet for the visiting room indicates that McTush and Doris Walker were with Nathaniel McTush from 2:20 p.m. to 3:00 p.m. on February 20, 1976.\nJohn Eric McKenzie\nIn February 1976, he was program director of the Youth Development Program in Joliet, Illinois. At 3:45 p.m. on February 20,1976, he was visited at the Youth Center by McTush and a woman named Doris. He was a friend of McTush. After leaving the Youth Center, McTush, Doris and he went to his home and had dinner. They stayed at his house until approximately 5:10 p.m. when McTush and Doris left. He remembers the events of this day because it was the last day of rehearsals for a play he was coordinating and the only time he met Doris.\nOn cross-examination, he could not remember the number of visits McTush paid him during February 1976 or the time, day of the week, or dates of those visits. He admitted telling an assistant State\u2019s Attorney that he did not remember anything unusual or distinctive about February 20, 1976, but would check his time sheets to be certain. His time sheets do not reflect the visit of McTush and Doris or that rehearsals for a play were held that day.\nMichael Kearney\nOn February 20, 1976, he was walking south on Ashland Avenue toward 69th Street, when he heard gun shots coming from the Kar-Life Battery Shop. After the shots stopped, a van pulled out of the battery shop\u2019s driveway and went south on Ashland. He did not see anyone come out of the battery shop or get into the van.\nSteve Coleman\nHe worked at a gas station at 7100 South Ashland Avenue on February 20, 1976. At approximately 3:45 p.m., a van drove into the gas station for air. The driver of the van was wearing a green leather coat with a white fur collar and the passenger was wearing a green army fatigue jacket. Fifteen minutes after the van left the station, he heard two gun shots. About 10 minutes later, the van returned for gas and then left without paying for the gas.\nOn cross-examination, he denied telling the police on February 20, 1976, that he was unable to describe the clothing of the occupants of the van.\nFor the State \u2014 Rebuttal\nThe State offered evidence that an automobile trip between Stateville Penitentiary in Joliet, Illinois, to the Kar-Life Battery Shop on a Friday afternoon takes between 53 to 59 minutes. An investigator for the State\u2019s Attorney testified that John McKenzie told him that nothing distinguished February 20, 1976, from any other visit he received from McTush. Finally, a Chicago police officer testified that Steve Coleman was unable to furnish a clothing description of the occupants or van which stopped at his gas station on February 20, 1976.\nOn appeal, McTush contends that: (1) the pretrial identification procedures were so unnecessarily suggestive and conducive to mistaken identification as to deny him due process of law; (2) the trial court improperly limited his examination of a State witness; (3) the trial court improperly prevented him from impeaching a State witness with prior inconsistent statements; (4) acts of prosecutorial misconduct denied him a fair trial; and (5) he was not proved guilty beyond a reasonable doubt.\nWe now turn our attention to the pertinent evidence adduced at the bench trial of Stone. Initially, we note that the direct examination of each State witness in the McTush trial also served as evidence in Stone\u2019s trial and therefore, we will not repeat that evidence. The only exception is State witness Clifford Lawrence. Additional evidence taken from Lawrence was admitted only in Stone\u2019s trial and is recounted below. However, testimony elicited during cross-examination of State witnesses is relevant and discussed below.\nFor the State\nJoseph Meier, Chicago Police Officer\nOn cross-examination, Meier admitted that Watson told him the offender, who was hit by David Thomas, was the man with the black coat.\nTerrence Watson\nOn cross-examination, Terrence denied telling any of the police officers on February 20 that he went to the window of the battery shop after he heard the gun shots. He admitted telling the grand jury on May 24, 1976, that he went to the window after he heard the shots. He denied telling the police that Stone\u2019s green coat had white fur trim on the bottom and on the cuffs. He viewed a lineup on February 21, 1976, but did not identify anyone in that lineup as one of the offenders. He admitted that from February 21 to May 24, 1976, he did not tell anyone that he recognized a participant in the February 21 lineup. On redirect, he stated he had seen defendant Stone about four times prior to February 20,1976. He did not tell the police that Stone was involved in these crimes or that he was in the February 21 lineup because he was afraid. On May 24,1976, he identified Stone from a photograph of the February 21 lineup.\nMrs. Ira Watson\nOn cross-examination, she testified it was getting dark at the time of the occurrence, but she could still see. The window of her apartment is approximately 55 feet from where the man in the green coat was standing outside of the shop. He was standing there a few seconds before entering the shop. She admitted having only a sideview of the man in the green coat. She doesn\u2019t recall telling the police that the green coat had fur trim on the cuffs and the hem.\nClifford Lawrence\nHe lived with his wife at 6126 South Honor\u00e9. McTush and Stone lived with them on a part-time basis. When Stone came home between 5 and 5:30 p.m. on February 20, he had a conversation with Stone. He asked Stone, \u201cMan, what\u2019s wrong?\u201d Stone replied, \u201cI just got through popping two dudes.\u201d Sometime after midnight that day, he had another conversation with Stone. He asked Stone whether he had anything to do with the robbery on 70th Street that day. Stone threw up his hands, smiled, and said nothing.\nOn cross-examination, he admitted that as of February 21, 1976, he had a weapons charge pending against him. He did not recall telling Rosalind Patterson on February 22 that one of the men killed at the battery shop was his friend.\nFor the defendant Lonzell Stone\nInvestigator Thomas Quinn, Chicago Police Department\nHe was assigned to investigate the murder at the Kar-Life Battery Shop on February 20, 1976. During the course of his investigation, he interviewed Terrence Watson. Watson told him that he ran to the window of the battery shop after he heard the gun shots. Based on his interviews with people at the scene, he filed a police report containing descriptions of the two offenders. The driver was described as wearing a green leather coat with white fur trim on the collar, cuffs and bottom. According to the report, Terrence Watson saw the man with the green coat standing over the body of David Thomas. The man\u2019s lip was cut.\nDefendant Stone and the People agreed by stipulation to the following facts. On February 22, 1976, Clifford Lawrence told Rosalind Patterson that he was a friend of the man who was killed at the battery shop, and that it was a shame he was killed. Terrence Watson testified before the grand jury that he went to the window of the battery shop after he heard the gun shots.\nOn appeal Stone contends that: (1) he was denied his statutory right to a speedy trial; (2) the evidence was insufficient to sustain the convictions for armed robbery; (3) he was not proved guilty beyond a reasonable doubt; (4) the judgment against him must be modified to conform to the jury\u2019s verdicts against defendant McTush; and (5) his sentence was excessive.\nWith the goal of clarity in mind, we will first discuss the contentions raised by McTush and then turn to the contentions raised by Stone.\nOpinion\nDefendant McTush first contends that the suppression hearing was conducted improperly and as a result, he was identified in court by Terrence Watson. More specifically, he maintains the trial court improperly placed the burden of proving an independent origin for Terrence Watson\u2019s identification on him rather than the State. Additionally, he contends no evidence was elicited as to Watson\u2019s opportunity to observe the crime and his previous variant descriptions of the criminals to the police.\nThe State\u2019s response initially is that defendant has waived this error by failure to allege it with specificity in his motion for a new trial. The general rule is that failure to allege errors specifically in the motion for a new trial constitutes a waiver of those issues. (People v. Donnenfeld (1978), 62 Ill. App. 3d 991, 379 N.E.2d 710.) The purpose of this rule is to provide the trial court an opportunity to correct alleged errors and to give the reviewing court the benefit of the trial court\u2019s judgment. (People v. Irwin (1965), 32 Ill. 2d 441, 207 N.E.2d 76.) Where the issues have in fact been brought to the attention of the trial court, ruled on by the trial court, and involved the potential of substantial prejudice to the defendant; the rule of waiver may be relaxed, in the discretion of the reviewing court, to decide the issue on its merits. People v. Gray (1977), 47 Ill. App. 3d 1026, 365 N.E.2d 501.\nIn his motion for a new trial, McTush alleged as error that the trial court \u201cfailed to conduct a proper hearing on defendant\u2019s motion to suppress the identification testimony of witnesses Terrence and Ira Watson.\u201d Assuming without deciding that this motion lacks sufficient specificity to preserve the alleged error for review, we note that the trial court held a hearing on McTush\u2019s motion to suppress and then ruled on that motion. The court also ruled on his motion for a rehearing on this issue. Moreover, the identification testimony of Terrence Watson at trial forms the foundation of the State\u2019s case. The potential for substantial prejudice to McTush by the improper admission of this evidence is beyond dispute. Since we have the benefit of the trial court\u2019s judgment on this issue and it involves substantial prejudice, we will decide the issue on its merits.\n\u2022 A defendant has a right to a full and fair pretrial hearing to determine whether a witness\u2019 identification of him was based solely on the witness\u2019 independent observation of the crime or whether it was influenced by unnecessarily suggestive police procedures or other extraneous factors which may have unduly affected the judgment and conclusion of the witness. (People v. Robinson (1970), 46 Ill. 2d 229, 263 N.E.2d 57.) In order to suppress identification evidence, a defendant has the burden of proving that the identification procedures were so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967.) Where the pretrial identification is found to be inadmissible, an in-court identification will be admitted if the State can prove by clear and convincing evidence that the in-court identification had an independent origin arising from other uninfluenced observations of the defendant. (People v. Lee (1973), 54 Ill. 2d 111, 295 N.E.2d 449.) In Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243, the Supreme court rejected a per se rule of exclusion of identification evidence following unnecessarily suggestive confrontation procedures. The Manson court stated:\n\u201cWe therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony * * * . The factors to be considered are set out in Biggers [Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401] 409 U.S. at 199-200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.\u201d 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253. Accord, People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.\nAt the pretrial hearing in the case at bar, the trial court heard Officer Ridges\u2019 testimony concerning the identification procedures conducted on March 18, 1976, and May 24, 1976. Following this testimony the trial court found the identification procedures of May 24 to be unnecessarily suggestive and presented a substantial likelihood of irreparable misidentification. Consequently, it asked for evidence of independent origin. The trial court then entered the following exchange with the defense counsel:\n\u201cDEFENSE COUNSEL: You are looking for an indep\u00e9ndent basis?\nTRIAL COURT: Yes.\nDEFENSE COUNSEL: But you want me to elicit it.\nTRIAL COURT: Yes, go ahead.\u201d\nPursuant to the trial court\u2019s request, defense counsel called Terrence Watson to the stand to offer evidence of independent origin. It is beyond question that the burden of proving independent origin rests on the State. (Lee; People v. Blumenshine (1969), 42 Ill. 2d 508, 250 N.E.2d 152; People v. Beyah (1979), 72 Ill. App. 3d 690, 391 N.E.2d 96; People v. Hatcher (1977), 45 Ill. App. 3d 374, 359 N.E.2d 1157.) Consequently, the trial court committed error when it placed the burden of proving independent origin on the defendant.\nDefendant further contends the trial court improperly concluded the hearing without hearing evidence of the witness\u2019 opportunity to view the crime and of inaccurate description of the criminals given to the police by the witness. At the suppression hearing, Terrence Watson testified that he was at the window of the Kar-Life Battery Shop on February 20, 1976, and he saw David Thomas hit McTush. Terrence Watson stated that he knew McTush from the neighborhood. Again, we note this testimony was elicited on direct examination by the defendant. After hearing this testimony, the trial court terminated the hearing and ruled that Terrence Watson would be allowed to identify McTush in court because an independent origin for the identification existed. This ruling was premature because the trial court heard no testimony on the witness\u2019 opportunity to view the crime, the witness\u2019 failure to identify defendant at the March 18 lineup, and the witness\u2019 alleged inaccurate descriptions of the criminals given to the police on the day of the crime. This evidence was clearly relevant as determinants of the reliability of the identification under the Manson decision and, in addition, should have been elicited by the State and been subject to the cross-examination of the defendant. Therefore, error was committed by the State\u2019s failure to meet its burden of proving independent origin and by the trial court\u2019s failure to consider relevant evidence, outlined above, in ruling on the admissibility of an in-court identification.\nThe State contends, however, that any error committed during the suppression hearing was rendered harmless by the evidence adduced at trial. Where error is committed either in the procedure of a hearing to suppress identification testimony or in rulings made during the hearing, the error may be harmless if the reviewing court, on the basis of an informed judgment, can perceive from the trial record the presence of an independent origin for the in-court identification. (People v. Hatcher (1977), 45 Ill. App. 3d 374, 359 N.E.2d 1157; People v. Seets (1976), 37 Ill. App. 3d 369, 346 N.E.2d 61.) If, however, the reviewing court cannot reach an informed judgment as to whether the witness\u2019 identification has an independent origin, then the conviction will be vacated pending a hearing in the trial court to allow the State to prove an independent origin for the identification. People v. Blumenshine (1969), 42 Ill. 2d 508, 250 N.E.2d 152.\nAlthough the trial record contains some relevant evidence, it does not permit an \u201cinformed judgment\u201d as to whether Terrence Watson\u2019s identification of McTush had an independent origin. Specifically, the record does not contain evidence of the lighting conditions both inside and outside of the battery shop, the distance between Watson and the criminals at the time of the viewing, the length of time for the observation, Watson\u2019s degree of attention, and any obstacles impeding Watson\u2019s view of the criminals. Also, no evidence was adduced as to whether Watson had a frontal view of each criminal and, if so, for how long. When these omissions are combined with (1) Watson\u2019s failure to identify defendant McTush at the March 18 lineup, (2) the alleged disparity between the descriptions he gave to the police on February 20 and the defendant\u2019s actual description, and (3) the length of time between the crime and the confrontation; serious questions as to the reliability and independent origin of the in-court identification remain.\nAccordingly, we vacate the judgments of conviction against McTush, pending a hearing in the trial court at which the State will be given the opportunity to prove the reliability of the in-court identification and its origin independent of the improperly suggestive identification procedures. (People v. Blumenshine (1969), 42 Ill. 2d 508, 250 N.E.2d 152.) McTush must be afforded a new trial if the identification testimony of Terrence Watson is found to have been inadmissible, since the erroneous admission of this testimony must be deemed prejudicial as Watson was the only eyewitness to the crime. (See People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634.) If, however, the identification is shown to be reliable and of independent origin, the trial court will enter a new judgment reinstating the conviction. (Blumenshine.) Consequently, we must consider the other issues raised in this appeal.\nMcTush\u2019s second contention on appeal is that the trial court improperly limited his examination of Officer Ridges. During defendant\u2019s direct examination of Officer Ridges, defense counsel attempted to elicit testimony from Ridges of prior statements by Terrence Watson. Defendant contends these statements would impeach Watson\u2019s testimony. We note initially that regulation of direct examination of witnesses is largely a matter left to the sound discretion of the trial court. (People v. Diaz (1971), 1 Ill. App. 3d 988, 275 N.E.2d 210.) Before prior inconsistent statements can be offered to impeach the testimony of a witness, the proper foundation must be laid during the cross-examination of the witness. (People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.) The purpose of this rule is to alert the witness, to avoid unfair surprise, and to give the witness an opportunity to deny or explain the prior statement. (People v. Ellis (1976), 41 Ill. App. 3d 377, 354 N.E.2d 369.) A proper foundation consists of two requirements; first, the witness must be questioned as to the time, place and persons present in the alleged conversation and second, the witness must be asked whether he made the inconsistent statement at that time. (People v. Ellis (1976), 41 Ill. App. 3d 377, 354 N.E.2d 369.) Where the witness denies making the statement or does not recall making the statement, a foundation is laid for subsequent impeachment. See People v. Bush (1963), 29 Ill. 2d 367, 194 N.E.2d 308, cert. denied (1964), 376 U.S. 966, 11 L. Ed. 2d 983, 84 S. Ct. 1129.\nOn direct examination, defense counsel asked Officer Ridges whether Terrence Watson said at the May 24 interview that McTush lived across the street from him. The State objected and the trial court sustained the objection. In explaining its ruling, the trial court stated the answer of Officer Ridges would not be impeaching because there is no testimony of Terrence Watson denying that he made this statement. After a careful review of the record, we were unable to discover the requisite foundation testimony. At no time did defense counsel ask Terrence Watson if he told Officer Ridges that McTush lived across the street. Consequently, the trial court properly sustained the State\u2019s objection.\nMcTush\u2019s third contention on appeal is that the trial court improperly prevented him from impeaching Terrence Watson on cross-examination with his prior inconsistent statements before the grand jury. More accurately, we note that defendant\u2019s attempt to impeach Terrence Watson with his grand jury testimony occurred during defendant\u2019s recross-examination of Watson.\nThe scope of cross-examination rests within the sound discretion of the trial court, and the trial court\u2019s ruling will be disturbed only if there is a clear abuse of discretion, resulting in manifest prejudice to the defendant. (People v. Ganci (1978), 57 Ill. App. 3d 234, 372 N.E.2d 1077.) Further, the scope of re-cross-examination is limited to matters brought out on redirect examination. People v. Pagan (1972), 52 Ill. 2d 525, 288 N.E.2d 102.\nOn direct examination, Terrence Watson testified that he went to the window of the battery shop before he heard the gun shots. During cross-examination by defendant McTush, Terrence Watson denied telling the police on February 20, 1976, that he went to the window of the battery shop after he heard the shots. No attempt was made by defense counsel to impeach Watson on this point with his grand jury testimony. On redirect examination, no testimony was elicited as to when Watson went to the window of the battery shop. Finally, on re-cross-examination, defense counsel tried to impeach Watson on this point with his grand jury testimony. The trial court sustained the State\u2019s objection to this question. We believe the trial court did not abuse its discretion by limiting re-cross-examination to matters brought out on redirect.\nMcTush\u2019s fourth contention on appeal is that acts of prosecutorial misconduct during the course of the trial deprived him of a fair trial. The State maintains the defendant has waived any errors resulting from acts of prosecutorial misconduct by failing to allege specifically these instances of misconduct as error in his motion for a new trial. As we have previously stated, failure to specify alleged errors in the matter for a new trial constitutes waiver of those issues for review. (People v. Donnenfeld (1978), 62 Ill. App. 3d 991, 379 N.E.2d 710.) McTush\u2019s motion for a new trial fails to allege specifically these acts of prosecutorial misconduct as error. Therefore, we must consider these issues waived for review.\nMcTush\u2019s final contention on appeal is that he was not proved guilty beyond a reasonable doubt. In support of this contention, he cites the weakness of the identification testimony of Watson and the strength of the alibi testimony presented by the witness in his behalf.\nA reviewing court will not set aside a jury\u2019s verdict unless the evidence is so improbable or palpably contrary to the verdict as to raise a reasonable doubt of guilt. (People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.) It is the function of the trier of fact to determine the credibility of the witnesses and the weight to be given to their testimony and the inferences to be drawn therefrom. (People v. Harris (1972), 53 Ill. 2d 83, 288 N.E.2d 873.) Where the identification of the accused is at issue, a positive identification by a single witness, who had ample opportunity for observation, will be sufficient to sustain the conviction. (People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.) The conviction will stand even though the testimony of the identification witness is contradicted by the defendant\u2019s alibi witnesses. People v. Alexander (1978), 65 Ill. App. 3d 559, 382 N.E.2d 519.\nAfter a careful review of the record, we believe the evidence was not so improbable or unreasonable as to raise a reasonable doubt of McTush\u2019s guilt. (People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.) Terrence Watson made a positive identification of McTush at trial, and gave a detailed account of what he saw happen inside the battery shop on February 20. Several witnesses placed McTush\u2019s car at the scene of the crime. Rosalind Patterson told the jury McTush was wearing a gray leather coat on the evening of February 20. In addition, the testimony of the microanalyst corroborates Watson\u2019s account of the close-range shooting of David Thomas. Mrs. Watson\u2019s testimony placed McTush at the scene of the crime and coincided with Terrence\u2019s account chronologically. Consequently, we believe the evidence is sufficient to establish McTush\u2019s guilt beyond all reasonable doubt.\nMcTush argues, however, that Terrence Watson\u2019s testimony was incredible in four respects. First, Watson told Officer Quinn that the passenger of the car wore a black leather coat. At trial, Watson testified that McTush wore a gray leather coat. We note, however, that precise accuracy in describing the clothing of the offender is not necessary where the identification is otherwise positive and a discrepancy on this point affects only the weight to be given the identification testimony. (People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915; People v. Seets (1976), 37 Ill. App. 3d 369, 346 N.E.2d 61.) Second, McTush points out that Terrence Watson told Officer Quinn that he ran to the window after he heard the gun shots. Terrence Watson denied making this statement and said that he was at the window before the first set of gun shots were fired. The existence of prior inconsistent statements does not render a witness\u2019 identification invalid, but affects the weight to be afforded the identification by the jury. (Harrison.) Third, McTush relies heavily on Watson\u2019s failure to identify him at the March 18 lineup. A witness\u2019 failure to make a positive identification of the defendant at a lineup does not vitiate the reliability of the witness\u2019 identification, but rather goes to the weight of the identification testimony and is to be evaluated by the jury. (People v. Lawson (1977), 52 Ill. App. 3d 343, 367 N.E.2d 560.) In addition, in the present case, Watson\u2019s failure to identify McTush may be attributed to his fear of what would happen if he did. Where a witness fails to identify the defendant or delays in making the identification out of fear, this evidence affects only the weight of the witness\u2019 identification. (People v. Orr (1977), 45 Ill. App. 3d 660, 359 N.E.2d 1237.) Fourth, McTush refers us to the time span between the commission of these offenses, February 20, 1976 and Watson\u2019s initial identification of him on May 24, 1976. This evidence alone does not render an identification invalid and its damaging effect, if any, is mitigated by the fact that the witness had seen the defendant before the time of the crime. People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383.\nAll of the points raised by McTush affect the weight of Watson\u2019s identification and were considered by the jury. The jury which saw and heard the evidence was in a superior position to assess credibility, and its determination will not be set aside unless evidence is so unsatisfactory as to leave a reasonable doubt of defendant\u2019s guilt. (People v. Houck (1977), 50 Ill. App. 3d 274, 365 N.E.2d 576.) After a review of the record, we do not believe matters of credibility referred to by McTush were sufficient to raise a reasonable doubt of guilt.\nHe also maintains that the testimony of Father Cannon and John McKenzie establishes that he was in Joliet at the time of the killings or, at the least, raises a reasonable doubt as to whether he could have been at the battery shop. Basically, this evidence raises a question of credibility for the jury, and, in this case, the jury obviously believed the witnesses for the State. As we have noted, a positive identification by a single witness, who had ample opportunity for observation, will sustain a conviction even if contradicted by the alibi testimony of the defense witnesses. (People v. Alexander (1978), 65 Ill. App. 3d 559, 382 N.E.2d 519.) Further, the trier of fact is free to reject alibi testimony. (People v. Jackson (1973), 54 Ill. 2d 143, 295 N.E.2d 462.) Consequently, we find the evidence not to be so improbable as to raise a reasonable doubt of defendant\u2019s guilt and that there is ample evidence to support the jury\u2019s verdict.\nDefendant Stone first contends that he was denied his statutory right to a speedy trial. Under the Speedy Trial Act, a defendant who is in custody must be tried within 120 days of having been taken into custody, \u201cunless delay is occasioned by the defendants.\u201d (Ill. Rev. Stat. 1975, ch. 38, par. 103 \u2014 5(a).) Where the delay is attributable to the defendant, the statutory period is tolled, and a new period begins to run from the date to which the trial was delayed. (People v. Donalson (1976), 64 Ill. 2d 536, 356 N.E.2d 776.) The test for determining if a delay is attributable to the defendant is whether the defendant\u2019s acts in fact caused or contributed to the delay. (People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.) A defendant must be charged with a delay even where the record attributes the continuance to another party. (People v. Bracey (1977), 52 Ill. App. 3d 266, 367 N.E.2d 351.) Further, where it is unclear that a delay is attributable to the defendant, the reviewing court will examine the circumstances surrounding the granting of the continuance to ascertain if the delay is attributable to the defendant. People v. Gooding (1975), 61 Ill. 2d 298, 335 N.E.2d 769.\nIn the present case, Stone concedes that from the time he was taken into custody to May 4,1977, all delays were attributable to him. On May 4, 1977, he agreed to a continuance to June 16,1977. But on May 13,1977, he moved to advance the cause from June 16 to May 13 for a hearing on his motion to reduce bond. The trial court granted Stone\u2019s motion and held a hearing on May 13 on his motion to reduce bond. At the end of the hearing, the trial court denied Stone\u2019s motion. After the court\u2019s ruling, the following exchange occurred:\n\u201cCOURT: Motion to reduce bail will be denied.\nDEFENSE COUNSEL: Thank you, Judge. May I ask that this matter be reset for the same date?\nCOURT: Order of court, cause set \u2014 what was the date?\nDEFENSE COUNSEL: June 16th, Judge.\u201d\nThe record states that the continuance to June 16 was by order of court. Trial of this matter was begun on October 13, 1977.\nStone contends his 120-day term began on May 13, and expired on September 10,1977. He argues that the delay from May 13 to June 16 was by order of court and not attributable to him. The State maintains the delay from May 13 to June 16 was attributable to Stone, and that the 120-day term did not expire until October 19, 1977.\nIn support of his argument, Stone refers to People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595, where the Illinois Supreme Court held that a court\u2019s granting of defendant\u2019s motion to advance for a hearing on a second defense motion triggered the running of the defendant\u2019s term. Even assuming that defendant Stone\u2019s motion to advance for a hearing on his motion to reduce bond triggered the running of his term; defendant\u2019s right to a speedy trial was not violated if the delay from May 13 to June 16 is attributable to him.\nWe believe that, at the very least, Stone contributed to the delay from May 13 to June 16 when he, on his own initiative, asked the court to reset the matter for June 16. (See People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.) Consequently, the delay from May 13 to June 16 is attributable to Stone, and a new 120-day term began on June I6.T0 ensure the running of his term from May 13, Stone, on that date should have demanded immediate trial without further continuance, rather than agree to a continuance to June 16. (See People v. Criss (1977), 45 Ill. App. 3d 973, 360 N.E.2d 543.) Accordingly, we hold that Stone was not deprived his statutory right to a speedy trial.\nStone\u2019s second contention is that the State failed to adduce sufficient evidence to prove he committed or was accountable for the offenses of armed robbery. More specifically, he argues that the State failed to prove that any property was taken from the person or presence of either David Thomas or Dennis Harrison. Under Illinois law, a person commits robbery when he takes property from the person or presence of another by the use of force or threatening the use of imminent force. (Ill. Rev. Stat. 1975, ch. 38, par. 18 \u2014 1.) The crime of armed robbery takes place when a person commits a robbery while armed with a dangerous weapon. (Ill. Rev. Stat. 1975, ch. 38, par. 18 \u2014 2.) A defendant may be convicted of the substantive offense of armed robbery committed by another, if:\n\u201cEither before or during the commission of an offense [armed robbery], 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 [armed robbery].\u201d (Ill. Rev. Stat. 1975, ch. 38, par. 5 \u2014 2(c).)\nWe note also that a conviction for armed robbery may be sustained on circumstantial evidence, where the evidence adduced was of a conclusive nature and produced a reasonable and moral certainty that the offense charged was actually committed by the defendant. People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161.\nStone was found guilty by the court \u201cin manner and form as charged in the indictment.\u201d According to Illinois law, a finding of guilty \u201cin manner and form as charged in the indictment\u201d is a finding of guilty as to all counts of the indictment. (People v. Spector (1964), 47 Ill. App. 2d 103, 196 N.E.2d 507.) Therefore, Stone was found guilty of the armed robbery of both David Thomas and Dennis Harrison. The evidence showed that David Thomas, an employee of the Kar-Life Battery Shop, customarily carried the cash receipts from the shop in his pocket. On the morning of February 20,1976, Thomas told William Richardson, the general manager of Ear-Life, that business was slow that day. When Richardson asked whether he had a lot of money, Thomas said no. At approximately 5 p.m. that day, McTush entered the battery shop and shot David Thomas. While McTush was going through the pockets of David Thomas, Stone entered the shop and proceeded to the rear of the shop where he shot Dennis Harrison. After the bodies of the victims were discovered, Richardson came to the shop and searched for the day\u2019s cash receipts. He did not find any of the receipts.\nThe question of the sufficiency of circumstantial evidence to prove a \u201ctaking\u201d necessary to sustain a conviction for armed robbery was presented in People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161. In that case, the victim, who was driving from Kentucky to Wisconsin, parked on the roadside to sleep for the night. Defendant apparently shot the victim as he slept. The police later discovered the victim\u2019s empty wallet outside the victim\u2019s vehicle. Thus, no direct evidence of a taking of property from the victim was produced at trial. Affirming the armed robbery conviction, the court reasoned that a jury could reasonably infer from the evidence that a person travelling several hundred miles on the highway would have money in his possession.\nSimilarly, in the instant case, we believe there is sufficient evidence for the jury to infer that David Thomas had some cash receipts on him at the time of his death. Thomas\u2019 statements that business was slow and that he did not have a lot of money on him allowed the jury to reasonably infer that some business had been conducted that morning and, as a result, he did have some money on him. We, therefore, affirm Stone\u2019s armed robbery conviction of David Thomas.\nWith regard to Stone\u2019s conviction of armed robbery of Dennis Harrison, the State candidly admits that the evidence at trial was insufficient to support a conviction for armed robbery. We agree. No evidence was adduced that property was taken from the person or presence of Dennis Harrison. Consequently, Stone\u2019s conviction for the armed robbery of Dennis Harrison is reversed.\nStone\u2019s third contention on appeal is that he was not proved guilty beyond a reasonable doubt. He argues that the identification testimony of Terrence Watson is not strong enough to support his conviction.\nWe have previously reviewed the Illinois law on the function of a reviewing court in determining whether a defendant has been proved guilty beyond a reasonable doubt. The evidence against Stone is overwhelming. Terrence Watson identified him as the second man in the shootings of February 20. Clifford Lawrence testified that shortly after the murders of Thomas and Harrison defendant Stone said, \u201cI just got through popping two dudes.\u201d We believe there was ample evidence in support of the court\u2019s finding of guilty. As we have noted above, minor discrepancies as to the suspect\u2019s clothing, prior inconsistent statements by the identification witness, and the witness\u2019 failure to identify the defendant at an earlier lineup affect the weight of the identification testimony and are to be evaluated by the trier of fact. (See People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915; People v. Lawson (1977), 52 Ill. App. 3d 343, 367 N.E.2d 560.) The court, who saw and heard the evidence, determined the credibility of the witness and the weight to be afforded their testimony. The trial court found Stone guilty and we do not believe the evidence was so improbable as to raise a reasonable doubt of defendant\u2019s guilt.\nStone\u2019s fourth contention on appeal is that an inconsistency between the verdict rendered against him by the trial court and the verdict rendered against defendant McTush by the jury raises a reasonable doubt as to his guilt. The State maintains that Stone has waived this issue by failure to allege it as error specifically in his motion for a new trial. We agree. Stone\u2019s failure to raise this issue in his motion for a new trial constitutes a waiver of the issue for review. People v. Donnenfeld (1978), 62 Ill. App. 3d 991, 379 N.E.2d 710.\nStone\u2019s final contention on appeal is that his sentence of from 25 to 50 years imprisonment is excessive. In light of our reversal of defendant Stone\u2019s conviction for the armed robbery of Dennis Harrison, we must vacate his sentence because the trial court may have considered this conviction in imposing the sentence. (People v. Deal (1979), 69 Ill. App. 3d 74, 387 N.E.2d 21; People v. McGaha (1973), 10 Ill. App. 3d 1051, 295 N.E.2d 476.) Although the sentence imposed here may have been warranted in light of the crimes for which the defendant has been convicted and defendant\u2019s background, we conclude that the case must be remanded for a reconsideration of the sentence. We express no opinion as to the sentence which should be imposed.\nTo summarize, with regard to McTush, the judgment of the circuit court of Cook County is vacated and the cause is remanded to the circuit court for further proceedings in accordance with the views expressed herein.\nWith regard to Stone, we reverse the conviction for the armed robbery of Dennis Harrison; affirm the remaining convictions; vacate the sentence; and remand the cause with directions to hold a new hearing in mitigation and aggravation and thereafter to resentence the defendant.\nReversed in part; affirmed in part.\nSentence vacated and remanded with directions.\nSULLIVAN, P. J., and MEJDA, J., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "Peter C. Rolewicz, of Chicago, for appellant Lonzell Stone.", "Ralph Ruebner and Gary Jay Ravitz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant John McTush.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Paul C. Gridelli, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN McTUSH et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 78-725\nOpinion filed October 26, 1979.\nPeter C. Rolewicz, of Chicago, for appellant Lonzell Stone.\nRalph Ruebner and Gary Jay Ravitz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant John McTush.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr and Paul C. Gridelli, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0603-01", "first_page_order": 625, "last_page_order": 649 }