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People v. Anderson

MARCH 10, 1970.




Appeal from the Circuit Court of Cook County; the Hon. RICHARD J. FITZGERALD, Judge, presiding. Judgment affirmed.


Defendant was found guilty by a jury of the crime of murder and was sentenced to a term of 35 years to 50 years in the penitentiary. On appeal he contends that certain identification testimony was improperly admitted into evidence and that he was denied the right to elicit the address of a witness for the People on cross-examination. (William Lee and Gerald Washington were indicted with Anderson for the murder. Severances were allowed and each man was tried separately.)

At approximately 2:00 p.m. on January 13, 1966, Gaetano Pampinella was shot to death during an armed robbery of a wholesale grocery store located at 901 West Randolph Street in Chicago. The two robbers were armed with a pistol and a sawed-off shotgun, and escaped the scene in an automobile driven by a third man. A week later Anderson was arrested and charged with participation in the crimes.

Defendant filed a pretrial motion to suppress the identification testimony of two witnesses for the People, Chicago Police Officer Neil Francis who observed the assailants leaving the premises after the incident, and Fred Graziano who was the owner of and present in the store at the time of the incident.

At the hearing on the motion to suppress the testimony, defendant testified that he was arrested on January 20, 1966, as he and two companions were leaving a pool hall on West Madison Street in Chicago. He testified that they were taken to the Maxwell Street police station. He was placed in an interrogation room and threatened, beaten, tortured and interrogated by police officers for about fourteen hours. He stated that he was not advised of his constitutional rights, nor was he allowed to use the telephone. Defendant testified that about two and one-half hours after he was taken into custody, Officer Francis entered the interrogation room and conversed with him for fifteen to twenty minutes.

Defendant further testified that he was shown in a lineup during the fourteen-hour period and that there were three other men in the lineup beside himself, all of whom were darker complexioned and taller than the defendant. After the lineup had been concluded, an officer informed defendant that he had been identified in connection with the murder, after which the police again beat him.

On cross-examination, defendant testified that the only other time he was shown in anything approaching a lineup was when a man was brought into the interrogation room. The man was unable to identify the defendant and was cursed by a police officer in attendance, who stated that the man was mistaken because defendant was the guilty party. Defendant also testified that he had an infection on his right wrist at the time of his arrest which resulted from a burn. He further stated that Officer Francis inspected the wound at the time they conversed in the interrogation room and stated to another officer present that defendant had not been shot. (This statement apparently related to the theory of the police that defendant had been struck by one of the bullets fired by Officer Francis at the automobile fleeing the murder scene.) Defendant further stated that during the entire fourteen-hour interrogation period he was not questioned about any matter other than the robbery and murder in question.

Officer James Burns testified that he and his partner arrested the defendant on January 20, 1966, pursuant to a communication from another branch of the police department. Defendant was transported to the police station where he was placed in an interrogation room. The officer testified that Officer Francis arrived at the station about 6:30 p.m. that day and conversed with the defendant in the interrogation room; the officer testified that Officer Francis did not interrogate defendant, but merely spoke with him. Officer Burns testified that Officer Francis asked defendant, "Do you remember me?" to which the defendant replied, "No." Officer Francis then looked at the defendant's infected wrist, but did not state that the defendant had not been shot.

Officer Burns further testified that defendant was then placed in a five-man lineup which was viewed by Officer Francis. A second lineup was conducted about two hours later which included the defendant and the same four men who were in the first lineup. The second lineup was viewed by James and Fred Graziano, both of whom were present in the store at the time of the incident, and both of whom identified defendant as one of the participants therein. The second lineup was also viewed by victims of other robberies; one of the parties viewing the lineup failed to identify the defendant, but that party had no relationship to the instant matter.

With respect to the makeup of the two lineups, Officer Burns testified that the men who were placed in the lineup with the defendant ranged in height from five feet, ten inches, to six feet, one or two inches. Defendant's height was about five feet, ten inches. One of the men in the lineup was described as "light complected," another as "very dark" and defendant as "dark." Defendant and another of the men wore mustaches.

Officer Neil Francis testified that he spoke to the defendant in the interrogation room just prior to identifying him at the lineup later that same day. The officer testified that he asked defendant how he injured his wrist, that the defendant replied that he had burned it, and that the officer turned to Officer Burns and laughed.

Two other police officers in attendance after defendant was brought to the station testified that he was placed in three lineups on January 20th, two relating to the instant matter and one unrelated. All of the officers who took part in the interrogation of the defendant denied beating or intimidating him in any manner.

At trial the evidence for the People was that on the afternoon in question, two men invaded the store belonging to Fred Graziano, and by means of a shotgun fired pellets into the back of Gaetano Pampinella, causing his death, and fled with over $300 in cash. Fred Graziano identified the defendant as the shorter of the two men, stating that he was "the man who had the handgun."

As the assailants were departing the store after the robbery and shooting, they encountered Officer Francis at the front door, who was just about to enter the premises. The officer testified that he had his hand on the outer doorknob at the same time that defendant had his on the inner doorknob. The officer stated that, "I proceeded to open the door and as I opened up the door there was a short . . . fellow. He looked at me and I looked at him and he glanced over to his right and looked up and I saw a tall . . . fellow. They both looked at me and they proceeded on by me and as I walked in the door closed. . . ." The officer identified the defendant as the smaller of the two men. The officer then went into the store and found that a crime had been committed. He returned to the street, saw the taller man enter the passenger side of an automobile driven by a ...

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