Appeal from the Circuit Court of Sangamon County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding. Affirmed.
Defendant appeals his conviction of armed robbery following a jury trial. The trial court denied the post-trial motions filed, and imposed a sentence of 5 to 10 years to run consecutively to a sentence of 5 to 15 years for another armed robbery.
Defendant's theory is that the denial of a motion to suppress witnesses violated his rights under the Constitution of the United States and the State of Illinois; that the evidence failed to establish guilt beyond a reasonable doubt; that the jury was improperly instructed by the court, and that the sentence is excessive.
Defendant was charged with the robbery of a drive-in restaurant at Pleasant Plains on March 4, 1966. Over the period of the next two weeks the investigating deputy sheriff showed a series of 15 to 20 pictures to the proprietor and three patrons present during the robbery. Each witness picked the picture of the defendant from the group of pictures shown. So far as it appears from the record the witnesses made such identification at different times and places, and separately from the other witnesses.
On March 25, 1966, defendant was being held in the jail upon another charge of armed robbery, an offense not at issue here. A public defender had been appointed to represent him on such charge, but the two had not yet conferred. On that evening defendant was placed in a lineup at the City Jail with four or five other men. The proprietor, Richards, and a patron, Talbert, were present and identified defendant as the person committing the robbery on March 4th. Thereafter, on March 28th, defendant was charged with the robbery at issue and was indicted for such offense on May 3, 1966. Certain testimony of the defendant relates to a lineup held on March 27th, but the record does not disclose whether the witnesses in this case were present.
On January 10, 1967, a witness, Mrs. Douglas, went to the County Jail and defendant was placed in a room with the expectation that she might observe him. She was, however, only able to see the back of his head and attempted no identification.
Counsel for defendant, appointed and serving at the time of trial and upon this appeal, filed a "Motion to Suppress Witnesses" upon the theory that the identification procedures were so unfair as to deprive him of constitutional rights. The evidence was heard upon the motion and the trial court reserved ruling pending the trial of the case, which commenced immediately thereafter. Such motion to suppress witnesses was presented to the trial court upon the authority of Butler v. Crumlish, 229 F. Supp. 565, which held that there was invidious discrimination against one held upon failure to make bond who is required to submit to the investigative process of the police when a person who is financially able to make bond is not subject to such procedure. The trial court noted that such authority was repudiated in Rigney v. Hendrick, 355 F.2d 710, from the same Federal District. In this court the motion is argued upon the authority of United States v. Wade, 18 L Ed2d 1149; Gilbert v. California, 18 L Ed2d 1178 and Stovall v. Denno, 18 L Ed2d 1199. In Gilbert and Wade, post-indictment lineups were staged without notice to counsel appointed to represent the several defendants. Noting at length the techniques and methods by which law enforcement officials might suggest to witnesses the identity of the accused in the lineup, or insure that the witness made a subsequent courtroom identification of the person charged, the United States Supreme Court held that such lineup without notice and opportunity for counsel to be present was a violation of the Sixth Amendment to the United States Constitution in that the accused was deprived of the right of counsel at a "critical stage of the proceedings." Denial of due process is not an element in these opinions. In Stovall v. Denno, the court announced that the rule of Gilbert and of Wade affected only cases where confrontations for identification purposes were conducted in the absence of counsel after the date of the opinions in Gilbert and Wade, i.e., June 12, 1967, for the reason that law enforcement officers, as in this case, had long relied upon the acceptance by the courts of pretrial confrontations for the purposes of identifications. Upon the authority of Stovall and People v. Boney, 38 Ill.2d 23, 230 N.E.2d 167, the constitutional rule asserted will not be applied retroactively.
Again, we have reviewed this record in the light of the standard stated in Wade to ascertain whether the courtroom identification had such origin independent of the lineup as to convince that it was made without improper influence of, or suggestion to, the witness through the process of confrontation.
The record shows an opportunity for the witnesses to observe the defendant, for the restaurant is described by all as brightly lighted, and each witness was in close proximity to the defendant the distances in evidence range from 8 feet to as close as 3 feet. No substantial discrepancy in the prelineup descriptions given by the witnesses to the investigating deputy and defendant's actual description has been pointed out, except a possible lower estimate of age made by one witness in conversation with defendant's counsel. We have found no other discrepancy in our examination of the record. No witness testifying had identified another person as committing the offense. While each witness made an initial identification from a picture of the defendant, the record shows that each chose defendant's picture from a group of some 20 pictures. In terms of time, such identifications were made within two weeks of the offense, and Richards and Talbert identified the defendant in the lineup on the 25th of March, 1966. From the record one can reasonably conclude that the photographs were employed to establish a basis for charging an offense and were not used to influence the witnesses in making a subsequent courtroom identification.
Finally, defendant testified at the motion to suppress that all persons in the lineup of four or five men held on March 25, 1966, put on the same garments and sunglasses and spoke the same words or phrases. The record fails to support the contention that the lineup confrontation was so unfair as to amount to a denial of constitutional due process.
Defendant urges that there was failure to prove him guilty beyond a reasonable doubt so that his conviction must be reversed as a matter of law. As opposed to the prosecution witnesses, and their identification of the defendant, the defendant and four witnesses testified to his presence at Bob's Corner Tavern in Springfield from 6:00 p.m. on March 4, 1966, until 1:00 a.m. the following morning. Defendant was a part-time bartender at the tavern and his witnesses were more or less regular patrons of the business, as well as defendant's acquaintances. The occasion was recalled as a champagne birthday party for one of the witnesses. Defendant was not working as a bartender on that occasion, but allegedly purchased the champagne. The witnesses for the prosecution and the witnesses for the defense produced complete contradictions in their testimony as to defendant's attire, appearance and degree of sobriety upon the evening in question. No alibi witness claims to have had defendant under continuous observation throughout the evening, but each speaks of seeing him from time to time.
The defendant testified that he gave an investigating deputy the names of three persons who would testify to his presence at the tavern and argues that there was no investigative attempt to determine whether such persons would corroborate the alibi. The deputy testified in rebuttal that defendant told him that he was at the tavern, but refused to discuss his acts and did not give the names of persons who would substantiate his presence there.
This case presents an issue of fact for the jury which includes the determination of the credibility of the witnesses. The trial judge, who also observed the witnesses, denied a motion for a new trial upon the sufficiency of evidence. The evidence upon which this conviction rests is not so unreasonable, improbable or unsatisfactory as to require this court to say that there is a reasonable doubt of guilt. People v. Scott, 38 Ill.2d 302, 231 N.E.2d 441; People v. Ashley, 18 Ill.2d 272, 164 N.E.2d 70. In the language of Ashley, it may be said that the identification of the defendant by the witnesses for the prosecution was positive and unhesitating, and indeed prompt.
Defendant complains of the refusal to give six tendered instructions severally directed to the defense of alibi, the presumption of innocence, and to the necessity of proof of material allegations beyond a reasonable doubt. Defendant filed a motion in writing for a new trial and an amendment thereto, neither of which made reference to the refusal of the tendered instructions. The Code of Criminal Procedure, chapter 38, § 116-1(c), Ill. Rev Stats 1965, provides that a motion for a new trial should specify the grounds for such. Our courts have determined that a party is limited to the claim of error set out in the motion for a new trial and that all other errors are waived. People v. Hunter, 23 Ill.2d 177, 177 N.E.2d 138; People v. Whitehead, 35 Ill.2d 501, 221 N.E.2d 256. In Hunter, error as to an instruction upon alibi is included in the doctrine of waiver. This case does not come within the fundamental ...