Appeal from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a jury trial, defendant was found guilty of armed robbery. He received a sentence of five to fifteen years. On appeal defendant contends (1) that he was deprived of a fair trial and due process of law by an improper identification lineup and prejudicial final argument by the State; also, (2) the sole eyewitness identification was insufficient to prove defendant guilty beyond a reasonable doubt.
Early in the morning of February 13, 1967, at about 5:00 a.m., a cabdriver, Wallace Kupsik, was robbed by three passengers, male Mexicans, after he arrived at an address they had ordered. When the cab stopped, the passenger sitting in the middle of the back seat grabbed and secured the cabdriver by locking his left arm around the driver's neck. Kupsik testified he was facing both the ceiling of the cab and the assailant holding him. The passenger to the left of the one holding the driver moved into the front seat and drove a short distance. The third passenger moved into a position in the far right of the front seat and removed the cabdriver's glasses as they left the cab. During the robbery, until the assailants fled, the cabdriver's head was held in the armlock by the assailant who wielded a beer bottle in his right hand. The assailant was later identified by Kupsik as the instant defendant, Joe Castillo.
Nine days after the robbery, February 22, 1967, the defendant and his two brothers were arrested for disorderly conduct. They were photographed, fingerprinted, and released on bail. The next day, February 23, 1967, they were arrested again. At the station their photographs were among a total of fifteen or twenty viewed by the cabdriver. He positively identified photographs of the defendant and his brother as two of his assailants.
A lineup composed of defendant, his brother, and two white policemen immediately followed. The policemen were both 5' 10", weighing over 200 pounds. The defendant and his brother were 5' 6"-5' 7" and weighed 110-130 pounds. The cabdriver identified defendant and his brother as two of his assailants. The two arresting officers testified that prior to the lineup, at the time of the arrest, the full constitutional warnings were given the defendant, the defendant stated he understood them, and the defendant never thereafter requested counsel. There was testimony for the defense that later requests for counsel were ignored.
On April 4, 1968, the court denied a pretrial petition of defendant to suppress any in-court identification of any witness the State had intended to call at the trial, because it would have been tainted by an improper lineup identification and related activity, including the illegal use of photographs.
At the trial, which commenced on April 25, 1968, the cabdriver made an in-court identification of the defendant and testified that defendant and his brothers, Jesse and David, robbed him. He further testified as to his identification of the defendant by photograph and at the lineup.
At the trial, and as witnesses for the defense, defendant's brothers, Jesse and David Castillo, who had previously pleaded guilty to the robbery, testified that the third person involved in the robbery was not their brother Joe, but John Garcia. The night preceding the robbery was the first time they had ever met John Garcia. Jesse and David were in front of their house drinking. Between 10:00 and 11:00 p.m., Garcia came up to them and asked them for a drink, and all three of them started drinking. They went to Bessmer Park about 1:00 a.m., and sat on a bench for two or three hours. They then robbed the cabdriver. It was John Garcia who did all the talking with the cabdriver, and it was he who grabbed the cabdriver's neck and held the beer bottle over his head.
David Castillo, on cross-examination, testified that neither he nor his brothers since February 23, 1967, made any attempt to locate John Garcia. Jesse testified that although he had visited Joe about five times since the robbery, they had never discussed it.
Considered first is defendant's contention that his identification was "from a lineup which was patently a nonexigent showup, devoid of counsel's presence," and "denied defendant due process and right to counsel."
Defendant contends that the standards for identification procedures set forth in Stovall v. Denno, 388 U.S. 293 (1967) (the right to a fair lineup), and Gilbert v. California, 388 U.S. 263 (1967) (the right to a lawyer at the lineup), were not met here and resulted "in an ineradicable taint of the identification on which his conviction was grounded." See People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152 (1969).
As argued by the State, the rule set forth in Gilbert does not apply here. It applies only to identification procedures conducted in the absence of counsel after June 12, 1967, and the identification lineup in this case took place on February 23, 1967.
As to the composition of the lineup, which consisted of two short Mexicans and two or three heavy non-Mexicans, it is obvious that the lineup was fundamentally unfair for the purpose of identification. However, we are not persuaded that the receipt of the evidence of the lineup identification in this case and at the trial tainted the in-court identification by the cabdriver. In People v. Lee, 44 Ill.2d 161, 254 N.E.2d 469 (1969), our Supreme Court stated (p 169):
"The test is whether the identification procedures were `unnecessarily' suggestive and the methods used must be examined in light ...