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People v. Stewart

JUNE 30, 1969.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH A. STEWART, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. MARK E. JONES, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

In a bench trial defendant was found guilty of burglary and sentenced to the penitentiary for a term of four to eight years. On appeal he contends that he was not proved guilty beyond a reasonable doubt, and he was erroneously identified because of "unconscious transference."

The complaining witness, DeJean R. Criswell, a guard in the Cook County House of Correction, testified he lived on the second floor of a 9-unit building located at 733 East 80th Street in Chicago. At approximately 4:45 p.m. on June 28, 1967, as he entered the vestibule of his building, he looked up the stairway and saw a man, carrying a little bag, leave the Criswell apartment and walk casually downstairs. Realizing that his wife was at work and the man had no business being in his apartment, Criswell ran upstairs and found that his apartment had been ransacked. He ran downstairs and outside to look for the man. A bystander, Ben Gatewood, told him that a man had run down the alley, so he proceeded in pursuit. He finally saw the man in a parking lot, where the man turned to face Criswell from a distance of about fifteen feet. The man pointed a gun at Criswell and warned him if he did not break off the pursuit he would be shot. Criswell recognized the gun as the type he had in his home. When he returned home he found that his gun and a transistor radio were missing.

Ben Gatewood testified that he was a neighbor of Criswell and saw a man running out of the courtway of the building in which Criswell lived. The running man almost ran into Gatewood as he turned down the alley. Gatewood saw Criswell chasing the man and he followed.

Immediately after the burglary, Criswell and Gatewood looked at police photographs, and both testified that they picked out two pictures, one of the defendant and one of Donald Mann.

About a month after the burglary, on July 25, 1967, Criswell saw the defendant in a poolroom. The defendant said, "Hi, fellow," as he passed Criswell. Criswell stopped the defendant and accused him of the burglary. Defendant denied the burglary and suggested that a man called "Cat Man," who resembled the defendant and who had gray eyes, could have committed the burglary. Criswell told the defendant that he worked for the House of Correction, and that he knew Cat Man, and that Cat Man was in the penitentiary. Criswell hailed a passing police car and had defendant arrested.

Criswell drove Gatewood down to a preliminary hearing in court. Before they arrived in court Criswell told Gatewood that they had caught "the fellow" in a poolroom. Gatewood then identified the defendant at the preliminary hearing. At the trial both Gatewood and Criswell identified the defendant as the man they had seen on June 28, and both men noted that defendant had an unusual way of walking, described as a limp. Gatewood testified that he remembered the burglar because of the color of his eyes, which were grayish-green. He was not sure whether the burglar had a mustache.

The defendant, Kenneth Stewart, testified he did not remember exactly where he was on the date in question but he probably was at home. He denied being in Criswell's apartment and denied walking with a limp.

In support of defendant's sole contention that he was not proved guilty beyond a reasonable doubt, defendant points out that the two witnesses for the State identified defendant about a month after the occurrence, but immediately after the crime, while the incident was still fresh in their minds, they identified a photograph of a man named Donald Mann as the man they saw running June 28. Defendant also notes that a police report, in evidence by stipulation, indicates that both witnesses identified only one photograph, the photograph of Donald Mann, as the burglar, and not the defendant.

Defendant argues that accepting as true the testimony of Criswell that he "recognized" the defendant in the poolroom about a month after the crime, he was uncertain at the time he viewed police photographs whether the burglar was the defendant or Donald Mann. Defendant further argues that if Donald Mann instead of the defendant had walked into that poolroom, it is likely that Criswell would have "recognized" Donald Mann as the burglar instead of the defendant. Defendant further states, "Neither of the eyewitnesses had a favorable opportunity to observe the fleeing burglar. Criswell could not very well view the burglar's face while running after him. . . . [Gatewood] merely saw a man running out of an apartment building courtway. He had no reason to pay attention, because at that time he did not know that a crime had been committed."

Defendant's authorities include Patrick Wall, Eyewitness Identification in Criminal Cases, pp 101, 102:

"One of the most serious and most frequently arising indications that a witness's trial identification may be erroneous is the fact that the witness had previously identified someone else as the perpetrator of the crime. . . . If the witness, having taken this position, later reverses himself and identifies another, how can one be sure that he is not as wrong on the second identification as he now must admit he was on the first? If more time passed, might he not also retract this second identification and accuse a third person?"

Also, People v. Cullotta, 32 Ill.2d 502, 207 N.E.2d 444 (1965), where the court held the identification by two witnesses was insufficient to convict, where neither of the witnesses had favorable opportunities for observation.

Defendant also asserts that "before Gatewood identified the defendant in person, it is clear that he was influenced by Criswell. Criswell drove him to the preliminary hearing. Before arriving in court, Criswell told him that `the fellow' had been caught. In effect, Gatewood was told that the criminal had been caught and was waiting to be identified. He no doubt believed that the defendant was the burglar before he arrived at the hearing to identify him. Under these circumstances, Gatewood's identification was very much dependent on Criswell's, and it is hard to believe that Gatewood would have identified anybody if Criswell had not identified him first." In support of the premise "that the influence of ...


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