Appeal from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
The defendant herein was tried by the court without a jury on charges of attempt to murder and of aggravated battery. He was tried on April 12, 1967, was found guilty on both counts and was sentenced to the Illinois State Penitentiary for a term of not less than five nor more than ten years. From this conviction defendant appeals.
The defendant on appeal contends that (a) the method of the identification of the defendant was improper and highly prejudicial and (b) he was not proven guilty beyond a reasonable doubt because he tendered an alibi which was disregarded and because his identification was vague and uncertain.
On December 2, 1966, Michael D. Davis, the complaining witness, was riding in an automobile with Clarence Simmons, Yvette Shannon and James Macon. At about 11:30 p.m. the car, which was driven by Simmons, came to a stop at South Parkway where there was a flashing red light. There were fluorescent lights on all four corners and the car lights, which were bright, were turned on. The defendant with two other young men who were walking north on South Parkway approached the car. One of the young men threw a garbage can in front of the car. The three of them walked around the front of the car and were banging on the car with their hands. One of them also threw a bottle at the car. The three male occupants of the car got out. Davis and Macon were on the passenger side while Simmons was on the driver's side. One of the young men who had approached the car swung at Davis and then a voice said, "Shoot him! Shoot, him, God damn it, or I will." Davis was then shot in the back after which he ran west toward the back of the car. He was shot twice more and lost consciousness and was revived in the hospital. Davis did not know who shot him.
Clarence Simmons testified that he was the driver of the car and that he got out of the car on the driver's side. The defendant Sutton was on the driver's side of the car about ten feet from Simmons. Simmons saw Sutton with a gun and saw him fire three times. Sutton was wearing a three-quarter length black leather jacket and had on a plaid golf-like cap and a sport jacket under the leather jacket. Simmons said Sutton was very bowlegged. On December 4, 1966 Simmons identified a picture of Sutton "as the person who shot Michael Davis."
James Macon testified that he was a passenger in the car and got out on the passenger side. He heard a shot and saw Davis fall. Macon saw Sutton on the driver's side about fifteen feet away. Macon saw Sutton fire the other two shots. He noticed that Sutton was bowlegged and that he had on a dark coat and a light one under it. He was wearing some kind of cap. On December 4, 1966, one of the detectives showed Macon a picture and from it he identified Sutton. He also saw a lineup photograph. Sutton was in the lineup photograph along with eight other people. Macon saw both photographs on the same day.
Detective Donald J. Moriarity was called as a witness by the defense. He testified that two detectives had brought Sutton and eight other young men into the police station and that the police were unable to contact the witnesses so they took a polaroid photograph of the nine young men. Moriarity further testified that the victim and eyewitnesses identified the defendant from police photographs.
The defendant testified that he left his home at 4823 South Prairie Street on December 2, 1966 at about 8:00 p.m. He denied that he shot Davis and denied that he was at the scene. He also testified that he was in various business establishments and in some of them he talked with friends and acquaintances.
Defendant first contends that the identification of the defendant was improperly made and highly prejudicial and that it was based on inadmissible testimony of the complaining witness and the police officers. Defendant cites Stovall v. Denno, 388 U.S. 293, in support of his contention that a constitutionally invalid pretrial confrontation for identification purposes precludes admission of courtroom testimony concerning that identification. Stovall, however, also stated that the principle set forth in the cases of United States v. Wade, 388 U.S. 218, and of Gilbert v. California, 388 U.S. 263, that defendant is entitled to counsel at his pretrial identification would not be applied retroactively, but would only be applied prospectively from June 12, 1967. The photographs of Sutton were shown for identification purposes on December 4, 1966, and December 5, 1966, and the trial was concluded on April 12, 1967.
[1-3] While the case at bar is a pre-Wade and pre-Gilbert case, there remains the issue whether the totality of the circumstances surrounding the identification of the accused was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." (Stovall v. Denno, supra, at page 302. See also: People v. Bey, 42 Ill.2d 139, 246 N.E.2d 287.) The circumstances surrounding the instant identification in no way deprived the defendant of due process of law since there is nothing in the record to indicate that anyone suggested to the witnesses that the defendant was a participant in the crime prior to their clear and unequivocal identification of the defendant from police photographs. It is also significant that James Macon identified the defendant from a lineup photograph of nine men. There is no requirement that a lineup must be held to insure a proper identification, and generally the manner or method of identification goes to the weight rather than the competency of the identification evidence. (People v. Brinkley, 33 Ill.2d 403, 211 N.E.2d 730; People v. Capon, 23 Ill.2d 254, 178 N.E.2d 296; People v. Tunstall, 17 Ill.2d 160, 161 N.E.2d 300; People v. Ford, 89 Ill. App.2d 69, 233 N.E.2d 51; People v. Lewis, 92 Ill. App.2d 463, 236 N.E.2d 417.) In People v. Tunstall, supra, and in People v. Capon, supra, the defendants were identified by pictures only.
The defendant quotes from Wall, Eye Witness Identification in Criminal Cases, which emphasizes that photographic identification procedure must be employed with great care for it creates certain grave problems in the administration of criminal justice. Wall also contends that where a suspect is identified from a photograph, there should be numerous photographs shown and in addition thereto such photographic identification is inherently weak. However, in this case one photograph containing nine persons was shown and the defendant was identified as the one who committed the offenses. Furthermore, in People v. Capon, supra, the Supreme Court held that there is no requirement that a defendant be identified at a police lineup. In that case the police brought photographs to the victim. She identified one photograph as that of the defendant. After the robbery in Capon, the witness first saw the defendant some six months later in court. The court on page 257 said:
"Considering the conditions under which defendant was observed, and considering that her identification was positive, credible, and unshaken on cross-examination, we cannot say that the jury's verdict was against the manifest weight of the evidence or that the identification was doubtful, vague, and uncertain."
The identification of the defendant in the instant case was neither doubtful, vague nor uncertain. Both Simmons and Macon testified that they saw the defendant shoot Davis. There were fluorescent lights on four corners of the intersection where he was shot and the car lights were on. Davis, the victim, testified that he identified the defendant based upon his view of the defendant when the car was stopped and that the police did not tell him that Sutton was the man who was present at the time of the occurrence. Simmons testified that he was able to identify the person portrayed in the picture as the man who shot Michael Davis. He testified that he was able to identify him from what he saw on the night of the occurrence. He also stated that his first identification was predicated upon what he saw on the night of the shooting.
As mentioned before, defendant quotes at length from Wall, Eye Witness Identification in Criminal Cases, Chapter III, concerning alleged weaknesses of identifications made from photographs. In commenting on Wall's observations, this court in People v. ...