Appeal from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding. Affirmed.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT.
In a five-count indictment, defendant was charged with two armed robberies, two aggravated batteries and an attempt to murder. He waived trial by jury. The court found him guilty and imposed concurrent terms of six to ten years on one count of armed robbery and one count of aggravated battery.
Defendant appeals, contending that (1), the trial court erred in denying his motion to suppress identification evidence; (2), his waiver of trial by jury was not knowingly and understandingly made; (3), the pretrial identification procedure used by the police was unnecessarily suggestive and so conducive to irreparable mistaken identification that defendant was denied due process of law; (4), the trial judge committed prejudicial error admitting in evidence a gun without proof connecting it with the defendant; and (5), he was not proven guilty beyond a reasonable doubt.
On July 19, 1967, at about 11:00 a.m., Gloria Stewart was working as a barmaid in a tavern at 1018 North Wells Street, Chicago. Two men entered. A short time later, Jeff Wright, a regular patron of the tavern came in. He went to his favorite booth but found it occupied by a man whom, at the trial, Wright identified as the defendant. Not being able to sit in his usual spot, Wright sat at the bar, his back to the booth. Neither Gloria Stewart nor Jeff Wright had ever seen the man before. This man remained in the tavern for about half an hour, his companion having left earlier.
While Wright was seated at the bar, he saw the man in the booth drop a gun to the floor. The man picked up the gun. Gloria Stewart, who also saw the incident, left the bar to go call the police. As she did, the man took the gun, held it on Miss Stewart and told her to get back behind the bar. He gave similar orders to Jeff Wright. He forced Gloria Stewart and Jeff Wright to their hands and knees. Gloria Stewart was ordered to open the cash register and the man took the money that was in it. He then struck Jeff Wright with the gun. As Wright pulled at the man's legs, the man shot him in the face, just below the right eye. The man then took a pint of whiskey off the shelf and left the tavern. The police were called. Jeff Wright was taken to a hospital. Either that day or the next, Gloria Stewart picked out a picture of the defendant from a number shown to her by the police. On October 17, 1967, defendant was arrested and the five-count indictment was returned against him.
Prior to trial, defendant moved to suppress the State's identification evidence. When the motion was heard, Detective Vincent Sandore, the officer who investigated the robbery, and Jeff Wright were in court. Defendant called them as witnesses in support of his motion. Their testimony disclosed that one hour before the hearing, Sandore showed Wright two photographs, both of the same person, the defendant. In addition, Wright testified that on December 1, 1967, after Detective Sandore told him "that he had the man" who committed the robbery, he identified defendant in the felony court.
After Sandore and Wright testified, defendant's counsel inquired if Gloria Stewart was in the courtroom. He was told she was not. Counsel then told the court that he had expected Miss Stewart to be present and be called as a witness. He requested that hearing of defendant's motion be continued to the next day. The request was denied. The trial judge then said that he was denying the motion to suppress with leave to renew it if evidence at trial warranted its reconsideration.
Defendant contends this was error. He argues that Sandore's showing of the two photographs to Wright was an attempt to condition the witness so he could make an identification. Defendant argues that the incident concerning the photographs, combined with the confrontation in the court, was suggestive and conducive to irreparable mistaken identification.
This argument assumes that the in-court identification by Jeff Wright was based on the two occurrences about which complaint is made. The record, however, shows that when Wright testified, he was asked how long and how close the man he identified as the defendant was in his presence in the tavern on July 19, 1967 when the robbery was committed. Wright's answer was "[a]bout 15, 20 minutes, maybe longer. . . . I would say about five feet, three stools from me." At the time the robbery was committed and he was shot, Wright said he was close enough to his assailant to touch him. He never wavered from this testimony.
These questions were asked Wright in order to establish that his in-court identification of the defendant was based on observations of the suspect other than the felony court appearance and the showing of the photographs by Sandore. See United States v. Wade, 388 U.S. 218, 242, 18 L.Ed.2d 1149, 87 S Ct 1926 (1967). We think it undeniable that Wright's viewing of defendant in the felony court after being told that the police had the man who committed the robbery, and his being shown the two photographs by Sandore, were unnecessarily suggestive. Compare People v. Rahming, 26 N.Y.2d 411, 259 N.E.2d 727 (1970); United States v. Zeiler, 427 F.2d 1305 (3d Cir 1970), 38 LW 2663.
These conclusions, however, do not dispose of the contention before us. The test which applies to situations like this one, granting there was an unfair or unconstitutional pretrial identification procedure, is one that will determine whether the in-court identification of defendant was induced by the tainted procedure or had a prior independent origin. See Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963). Application of this test requires consideration of what prior opportunity Jeff Wright had to observe defendant at the time of the alleged criminal acts. People v. Taylor, 123 Ill. App.2d 430, 258 N.E.2d 823.
Consistent with these principles, we have held that where an unfair pretrial identification procedure is shown, the subsequent in-court identification may nevertheless be admissible if the prosecution shows that the in-court identification had a prior independent origin, arising from other uninfluenced observation of the person later identified as the defendant. People v. McMath, 104 Ill. App.2d 302, 244 N.E.2d 330, affirmed 45 Ill.2d 33, 256 N.E.2d 835; People v. Cook, 113 Ill. App.2d 231, 252 N.E.2d 29. By these standards, the unshaken testimony of Jeff Wright established a prior independent source for his in-court identification of the defendant. People v. Gates, 123 Ill. App.2d 50, 259 N.E.2d 631. Therefore, it was not error for the trial court to overrule the motion to suppress.
The next contention concerns defendant's waiver of trial by jury. The record discloses a colloquy, in Chambers, while a jury panel was waiting in the courtroom.
THE COURT: ". . . Mr. Lenair, do you wish to be tried by this ...