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People v. Payton

APRIL 22, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RICHARD PAYTON (IMPLEADED), DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Defendant was convicted after a bench trial of the offense of armed robbery. He was sentenced to a term of five to ten years. Defendant raises three points on appeal: (1) the method used for identification was so highly suggestive and conducive to mistaken identity as to require reversal; (2) it was error to introduce into evidence a gun which was never connected with him; and (3) it was error to consider a police officer's testimony as to defendant's statements obtained in violation of his constitutional rights, even though defense counsel did not raise any objection at the time the officer testified.

Testimony of Fred G. Anderson, complaining witness, for the State:

He lives at 2355 East 74th Street in Chicago. On May 24, 1967, he was working as a bartender at the South Side Swedish Club. He finished working at 1:00 a.m. on May 25, 1967. He drove home and parked his car about a quarter of a block from his home. When he got in front of his house two men, a tall one and a shorter one, came down the street towards him. As they approached him they separated and the little one (defendant) got hold of his arm and started twisting it up. The taller man (Erman Haskins) grabbed him by the throat and started to pistol-whip him. The taller man had the weapon. He required nine stitches to close the wounds. His wallet with his paycheck for $180 was taken during the robbery by the defendant.

He started to holler and his wife and neighbors heard the commotion and called the police. Several minutes later a squad car came by with two police officers, Beam and Schultz. They asked him to get in the car and describe his assailants, which he did. The squad car then drove west on 74th Street and down Crandon between 71st and 72nd. He pointed out the two suspects as the ones who robbed him. He was told to stay in the car. The taller assailant ducked into a gangway and the officers followed him. After that he heard shots.

He saw the defendant at 2:00 or 2:15 a.m. in Billings Memorial Hospital. A police officer later gave him back his wallet with the paycheck still inside it.

On the morning of May 25 the lighting conditions in front of his house were good. He uses hundred watt bulbs in the entrance on the first and second floors of his building to light up the front. He could see the defendant "plain then and there." His assailants came around the corner on Yates and walked towards him. When he got in front of his doorway they separated and grabbed him from the back.

He had never seen the defendant before. The taller man (Haskins) was wearing a light gray topcoat with a tam or beret. He was a Negro of light complexion and was about six feet or six feet one in height. The shorter man (defendant) was also a Negro and he was wearing a three-quarter length dark brown coat. He was not wearing a hat. He did not notice the color of their trousers. He knew the taller man had a gun because he saw it. The taller man had a gun in his hand and he saw "a flash of chrome" as he was hit. He identified the gun at the police station.

After he was taken to the hospital, he identified a man in the emergency room as the taller man who had robbed him, Erman Haskins. This man had been shot by the police. "The police didn't put nothing in my head" as to who the man was.

He saw the shorter man (defendant) when the police brought him into the hospital. The man was handcuffed. The police said, "We brought in a suspect." He was thirty feet away when he first saw the defendant at the hospital and he moved closer to him to take a good look. He identified him as the other robber.

He identified defendant in court as one of the men who robbed him. He also identified a gun as the one used to pistol-whip him.

Testimony of Alfred Schultz, for the State:

He is a police officer. On May 25, 1967, his partner and he responded to a call at approximately 1:20 a.m. of a man needing assistance at 2355 East 74th Street. When they arrived they observed a white man standing there, bleeding from the head. The man identified himself as Fred Anderson. They placed him in the back of the squad car.

They drove westbound on 74th and then turned northbound on Crandon. Between 72nd and 71st "Mr. Anderson called to us and pointed out one of the offenders that was walking down the street." Mr. Anderson remained in the squad car and they chased the man down an alley. Another car had responded to the "lookout message" they had made immediately after Mr. Anderson was placed in the squad car. They ordered the man to halt. They noticed a nickel-plated revolver in his hand and they opened fire. The man fell to the ground. They took the gun from him and called for a wagon. They had a conversation with the man, Erman Haskins, and then put out another lookout message giving a full description and name of the second offender, Rick Payton. They took Mr. Anderson to Billings Hospital.

They were in full uniform when they gave chase to Erman Haskins. Mr. Anderson described Haskins as "a male Negro, approximately six foot, approximately 185 to 190, a light complexion, wearing a brown coat, dark pants and a tan hat." Mr. Anderson described the defendant as "a male Negro, approximately 5,8 to 5,10, between 165 and 175, wearing dark pants." He was also wearing a light colored coat and a cap.

Mr. Anderson observed Haskins as they were wheeling him into the hospital. Mr. Anderson stated that "that was the man that attacked him." He never told Mr. Anderson that Haskins was a suspect.

He identified the gun introduced into evidence as the one seized from Haskins.

Testimony of Gerald Beam, for the State:

He is a police officer. He corroborated the testimony of his partner, Alfred Schultz. He also identified the gun as the one taken from Haskins after he had been shot. The gun ...


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