People v. De Leon (40 Ill. App. 3d 308, 1976)

Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendants William De Leon and Gilberto Villegas were charged by indictment with the offense of armed robbery. After a bench trial, both were found guilty of robbery and sentenced to 180 days of periodic imprisonment as a condition of five years’ probation. Three issues are presented on appeal: (1) whether it was error for the trial judge to deny defendants’ motion to call as their witness a police officer not listed on their witness list; (2) whether defendants were proven guilty of robbery beyond a reasonable doubt; and (3) whether the trial court improperly considered defendants’ silence as being indicative of guilt.

Samuel Clemons and his brother Herman testified to substantially similar acts: On the evening of November 18, 1973, they were at the corner of North Avenue and Leavitt Street with William Fletcher when defendants and another approached them. Defendant De Leon, who appeared intoxicated, told them, “I want some change from you, you, and you.” When De Leon was told that they had no change, he asked whether they belonged to a gang and if they wanted to “rumble.” Samuel Clemons replied that they didn’t belong to a gang or want to fight. A second, larger group began to approach, and after making several more demands for money, De Leon attempted to punch Samuel Clemons. After moving out of the way, Samuel struck De Leon, and both brothers ran from the scene.

William Fletcher testified that after the Clemonses had run away, he struggled with members of the group and was thrown to the ground. When he got up, he saw De Leon holding a knife. De Leon told defendant Villegas to “look in his pockets.” Villegas reached into Fletcher’s pocket and removed 550 and two door keys. The police arrived within moments, and the group scattered in various directions. As De Leon was attempting to flee, Fletcher pushed him into the street. The police then arrested De Leon after Fletcher told them that he had been robbed.

Officer James Maurer of the Chicago Police testified that he was on patrol, driving an unmarked car, on the evening of November 18, 1973. With him were his partner, Officer Walter Murawski, and Sergeant Nick Miljanovich. They stopped for a red light at North and Leavitt and observed a group of eight to ten Puerto Rican men standing around one black male. Officer Maurer testified that one of the men was “standing approximately two feet from the victim, and he had an object in his right hand, I believe, which was approximately four inches long, shiny resembled a knife blade.” Another, identified as Villegas, had his hand in Fletcher’s pocket and an arm around his body. As he was leaving the car, he heard the victim yell that he had been robbed. Villegas fled, running west on North Avenue. Officer Maurer gave chase and apprehended Villegas after firing two warning shots.

On cross-examination Officer Maurer stated that he did not complete or sign the arrest reports for either defendant although each bore his name and signature. He thought that Officer Murawski may have completed the reports since his name and signature also appeared.

Sergeant Miljanovich testified that he saw Fletcher grab for the man who had pointed an object at him, delaying him long enough for the sergeant to take him into custody. Sergeant Miljanovich identified the man as defendant De Leon. On cross-examination he stated that a knife was never found, and that 55