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People v. Mcgrew

NOVEMBER 18, 1968.




Appeal from the Circuit Court of Cook County; the Hon. WILLIAM S. WHITE, Judge, presiding. Affirmed.


In a bench trial, Joseph McGrew and Alford Brown, Jr., were found guilty of the offense of armed robbery. McGrew was sentenced to two to six years in the penitentiary and, on appeal, he contends that he was not proved guilty beyond a reasonable doubt.

On August 26, 1966, at about 10:30 p.m., Clemmons Otte approached his automobile, which was parked on Ogden Avenue in Chicago, and within a half block of the laundromat he operated at 1500 Clybourn. The area was illuminated by streetlights and by cars on Ogden. As Otte was about to enter his car, two men approached and asked if he had any money. Otte replied he had $20. While defendant McGrew prevented Otte from entering the car by pressing his knee in the door and holding a knife, Brown removed Otte's wallet containing the $20.

On the same evening, Otte gave the police a description of the two men and told them he could identify both of them, but he knew one better than the other. On September 27, 1966, police officers came to his laundromat with about six pictures, and he identified pictures of McGrew and Brown as the two who robbed him on August 26. Later on the same day, at a lineup in the Chicago Avenue station, in which there were four Negroes of similar physical appearance, he "recognized both of them as the men who held me up." During the trial Otte identified McGrew and Brown as the men who committed the holdup.

On direct examination, Otte testified that he had seen Brown in his place of business "a hundred times or more," and "my wife used to do the laundry for him." He had seen McGrew in the laundromat "a couple of dozen times."

On cross-examination, Otte testified that he was 62 years old and wore glasses. He made no outcry, and McGrew had a knife in front of him. Brown brought his laundry in for a period of a year, and "my wife done that as a favor to them because they loved to play cards." They would leave the laundry, and after two or three hours they would return and pick it up and take it home.

Otte was cross-examined at length regarding the description he gave the police of his assailants and of what transpired when the police showed him the photographs and at the lineup. He said when the police officers showed him the pictures, he was asked, "`Can you recognize any of these fellows as the men who held you up?' And as I looked at them I recognized both of them right away, and I said `These are the two fellows.' He said, `O.K., do you want to come to the station this evening?' I said, `Yeah, after I close up, after eight o'clock.' So I went there after eight o'clock, and that's when I recognized both of them as the men who held me up." He was not informed by the police that the men would be in the lineup. He was told to go to the station and look at a lineup. As to the question, "Now, in other words, you had that picture in your mind at the time when you picked these men out at your place of business, you could remember what these pictures looked like?," Otte responded, "Listen, I could have picked those men out of a thousand pictures. . . . I have had the pictures of these men in my mind — right along, from the date that I was held up until the day the officer came to my place of business. That's what I am trying to say. I didn't need no pictures to recognize the men, believe me."

Both Brown and McGrew testified and denied the robbery. Brown testified he lived with his parents. He knew Otte and went every week to the laundromat. He usually dealt with Otte's wife. "We left our clothes in the laundromat and she would take them and dry them for us." He testified as to his activities on the evening of August 26 — he arrived home at about eight o'clock and stayed home all night.

Defendant McGrew denied the robbery or that he carried a knife. Brown and he were friends and met several times a week. He was not with Brown on August 26, and at the time of the robbery he was in a pool hall on North Avenue. As to Otte, he testified that he had seen him around the neighborhood, and "I used to go by the laundromat and see him." He did not see Otte on August 26.

Alibi witnesses testified for each of the defendants. Robert Griffin testified that on the evening of September 26, he played pool with defendant McGrew at a pool hall on North Avenue until 11:30 and then remained with him at McGrew's sister's home until the next morning. James Brown testified that he was with his brother, the defendant, Alford Brown, throughout the evening at their home watching television.

Defendant McGrew's contention that he was not proved guilty beyond a reasonable doubt is based upon the assertion that Otte's identification was uncertain and police induced. He maintains that there was "no clear and positive identification of these men," and if Otte's identification of defendants "was clear and positive why was further identification by photographs and lineup necessary? . . . As a matter of fact, the only reason pictures were shown to Otte was to bolster up a doubtful and uncertain identification of the defendant and Brown."

Defendant's citations on single identification include People v. Ikerd, 26 Ill.2d 573, 188 N.E.2d 12 (1963), where it is said (p 579):

"This court has reiterated the rule that a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful and uncertain. . . . However, a single ...

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