Appeal from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding. Judgments affirmed.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 5, 1970.
Defendants were found guilty by a jury of the crimes of murder and robbery; each was sentenced to a term of fifty years to one hundred years in the penitentiary. They appeal.
Shortly after 5:00 on the morning of July 16, 1966, Henry Dority, the operator of a newspaper stand located at the corner of 53rd Street and Indiana Avenue in Chicago, was robbed and shot to death near the newsstand by two men who fled the scene. Several months later two persons who allegedly witnessed the incident identified the defendants as the perpetrators of the crimes by means of police photographs.
On November 14, 1966, the defendants, who were in custody at the Cook County Jail awaiting trial on indictments unrelated to the instant case, were transported to the Cook County State's Attorney's Office in the Criminal Courts Building where they were shown in a lineup, again identified as the offenders, and subsequently indicted for the crimes. After the lineup had been concluded and in response to a comment made by one of the police officers assigned to the defendants, Stringer allegedly admitted shooting Dority; Stringer then allegedly asked Taylor how much money they got in the robbery, but Taylor stood mute.
Pretrial motions were filed by the defendants, consisting of a motion to suppress the oral statement allegedly made by Stringer, a motion for a severance of the trials, and a motion to suppress the identification testimony of the witnesses who identified the defendants at the November 14th lineup. After hearings, the trial court ruled inadmissible the portion of Stringer's statement relating to Taylor and denied all motions.
At the hearing on the motion to suppress the Stringer statement, Police Officer John Fitzgerald testified that the defendants were brought to the Criminal Courts Building for the purpose of being shown in a lineup in connection with the robbery and murder of Dority. He testified that the defendants were fully advised of their constitutional rights when they were placed in his and his partner's custody, but that the defendants responded only by shouting and demanding that they not be shown in a lineup but that they be returned to County Jail.
After the lineup had been concluded, in which the two defendants and four other men were shown, Officer Fitzgerald and his partner, Officer Joseph Marin, returned to the room where the defendants were being held and informed them that they had been identified in connection with the murder and robbery. Officer Fitzgerald testified that Stringer thereupon shouted, "Okay, okay, I killed him, let's get it over with." The officer stated that he then inquired of Stringer as to the type of weapon which was used and that Stringer told him it was a .32 automatic pistol which he thereafter left with a friend. After Stringer declined to divulge the friend's name, the officer testified, he asked Stringer how much money was taken in the robbery. Stringer thereupon turned to Taylor and asked, "How much did we get?" but Taylor did not answer. Stringer stated that he was willing to give a written statement concerning the incident, but refused to do so when assistant state's attorney Thomas Hett was later brought into the room.
Officer Fitzgerald further testified that, prior to showing the defendants in the lineup, he was aware indictments were pending against both defendants for other crimes and that he at no time made an attempt to contact the defendants' attorney who was of record in those matters. He also stated that he did not seek permission from the defendants, their attorney of record in those other matters, or any court to have the defendants brought from the County Jail to the Criminal Courts Building.
Officer Marin substantially corroborated the testimony given by Officer Fitzgerald and likewise testified that the defendants were advised of their constitutional rights prior to being shown in the lineup and also that Stringer made the statement related by Officer Fitzgerald.
Defendant Stringer testified at the hearing on the motion to suppress the statement that he had been arrested and indicted in September 1966 on robbery charges and was represented by counsel with respect thereto. He testified that on November 14, 1966, he was taken from the County Jail, under the pretext that he was being released on bond, and was transported, with defendant Taylor, to the Criminal Courts Building. He further testified that Officer Fitzgerald told him that he and Taylor were to be placed in a lineup to determine if they could be identified in connection with a murder. He stated that he demanded to see his attorney, but was refused, and that he was given no constitutional warnings prior to appearing in the lineup.
Stringer also testified that immediately prior to appearing in the lineup, he and Taylor were seated in a small room and he noticed two persons peer into the room from the outside; he stated that he later saw the same two persons viewing the lineup. (The two persons referred to by Stringer were Perry Smith, a People's witness at trial, and Carl Dunbar, a defense witness at trial.) Stringer testified that at the conclusion of the lineup, he and Taylor remained in the room with Officer Fitzgerald and several bailiffs, and Officer Fitzgerald informed the defendants that they had been identified in connection with the Dority murder.
Assistant state's attorney Thomas Hett testified that he had been summoned to the room where the defendants were being held and that he asked them if they wished to make a statement; Stringer refused. He further stated that neither defendant complained to him at that time that he had been threatened or intimidated; they wished only to be taken back to County Jail. He also testified that he did not recall either defendant state that he had been denied his rights.
At the hearing to suppress the identification testimony of the witnesses, assistant state's attorney Louis Garippo testified that he authorized the removal of the defendants from County Jail to the Criminal Courts Building to have them appear in the lineup. He stated that he did not seek the permission of the defendants, an attorney or a court to effect that removal.
Defendant Stringer testified and again related that he and Taylor were removed from the County Jail to the Criminal Courts Building. Prior to appearing in the lineup when he and Taylor were seated in a small room handcuffed to chairs, he noticed Smith and Dunbar peer into the room at him and Taylor; he saw both men later viewing the lineup.
Stringer testified that he and Taylor were placed in the lineup with four other men. He testified that the heights of the four other men ranged from five feet, seven inches to five feet, eleven inches, and that their clothing was dirty and in disarray, whereas he and Taylor were taller and were more neatly dressed. Stringer also stated that he was asked his name during the lineup, but refused to give it. He testified that he wore eyeglasses during the lineup, that he was not certain whether Taylor wore eyeglasses, and that the four other men were not wearing eyeglasses.
Perry Smith testified that he viewed the November 14th lineup at the Criminal Courts Building, at which time he identified the defendants as the persons he observed shoot Dority. He testified that there were six men in the lineup, whose heights ranged from about five feet, four inches to five feet, nine inches. He stated that prior to viewing the lineup he had identified both defendants from photographs shown to him by the police, and again saw the photographs later at police headquarters.
Smith denied having told anyone that he had seen the two defendants in the small room in the Criminal Courts Building prior to the lineup. He further denied telling anyone of having identified Taylor's photograph at police headquarters, rather than at the same time as he identified Stringer's.
An assistant state's attorney, John McGarry, testified that he had been an assistant public defender and was assigned to represent the defendants in this case. He stated that in the course of his investigation of the matter, he had occasion to speak with Smith at his home. The witness identified a statement which he said he took from Smith, which was reduced to writing by himself, and corrected and signed by Smith. He related that Smith told him that he saw the two defendants seated in a small room in the Criminal Courts Building immediately prior to viewing ...