APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN SCHWARTZ, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 27, 1971.
The defendant, John L. Finch, was convicted of unlawful sale of a narcotic drug (Ill. Rev. Stat. 1967, ch. 38, par. 22-3) after a bench trial in the circuit court of Cook County and sentenced to a term of not less than 10 nor more than 20 years. Contending that constitutional questions are involved, the defendant has appealed directly to this court. See Rule 603. 43 Ill.2d R. 603.
The evidence shows that on April 30, 1968, at about 4:30 A.M. Officers Arnold and Westbrook of the Chicago Police Department met with Willie Miller, a special employee of the police department, in the vicinity of 43rd and Indiana in Chicago to prepare Miller to make a controlled purchase of narcotics. A "strip search" in the automobile insured that Miller was not in possession of narcotics and he was given $15 in pre-recorded funds. Officer Arnold and Miller proceeded to the vicinity of 312 East 43rd Street, and Miller looked into the window of the O.K. Restaurant at that address. A man came from the restaurant and he and Miller began a conversation. The man was identified at trial by Miller and Officer Arnold as the defendant, Finch. Miller testified that he told the defendant that he wanted to purchase some narcotics and that Finch told him he would have to return with the narcotics. Miller said that he gave the defendant the $15 dollars of pre-recorded funds at that time. Officer Arnold, who was observing from an alleyway testified that he saw the hands of the defendant and Miller meet and it appeared that something was passed.
Miller and the defendant, according to the testimony of Miller, agreed to meet at the corner of 44th and Calumet. Officer Arnold observed Miller proceed to the northwest corner of 44th and Calumet. Several minutes later the defendant emerged from an alleyway between Calumet and the adjacent street, South Park. The defendant walked to Miller and handed him a tin-foil package then walked back to the alleyway.
Officer Arnold said that he had seen the defendant leave the alleyway between Calumet and South Park and that after a brief meeting something appeared to pass between the defendant and Miller. Miller then came to where Arnold was standing and handed him a tin-foil package. Officer Arnold testified that he did not lose sight of Miller at any time from the time he and Miller parted near 312 East 43rd Street until Miller handed him the package. Officer Arnold opened the package and found that it contained a white powder. This was later shown to have been heroin. He and Officer Westbrook, he testified, then made an unsuccessful effort to apprehend the defendant but could not locate him.
An arrest warrant was subsequently issued for the defendant and he was arrested on May 9, 1968 at 7:20 A.M. at 43rd and Calumet. On this evidence the defendant was found guilty of the unlawful sale of a narcotics drug.
The defendant contends that his constitutional rights were violated in that (1) the identification of the defendant at trial by Willie Miller was tainted by an improper pretrial confrontation; (2) the in-court identification of the defendant was itself so unnecessarily suggestive that it violated his right of due process; (3) the trial court's refusal to require Miller to disclose his address in open court violated his right to confront the witness; and (4) the failure of the trial court to quash the arrest warrant, which had been issued without probable cause, violated his assurance against unreasonable seizures.
The defendant first complains that the State's witness, Willie Miller, was present in court the day before trial when some preliminary motions in the case were being argued before the court, and that the witness viewed the defendant without his knowledge. He argues that this viewing constituted a pre-trial confrontation, after indictment, which under United States Supreme Court holdings in United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, and Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951, required that he have been given notice of the intended confrontation and the opportunity to have his attorney present. This secret and improper exhibition of the defendant to the State's witness one day before trial tainted the witness's in-court identification of the defendant, and accordingly, he says, the State witness's in-court identification was improperly permitted. Under the circumstances it must be presumed, he contends, that the in-court identification was the product of the illegal prior confrontation and that there could not reasonably be an independent source for the witness's in-court identification.
The State declares that it has no knowledge of any pretrial viewing and that if there was one as described, it was completely unaware of it. Further, even if there had been such a viewing the record here clearly shows that the witness's in-court identification of defendant had an independent source, unconnected with and uninfluenced by any pretrial confrontation.
The contention that there was such a pretrial viewing is based on the following, which occurred during the cross-examination of Willie Miller:
"Q. [Defense Counsel]: Now when did you see Mr. Finch next [after the alleged transaction on April 30, 1968]?
The defendant concludes from this, that unknown to him and his trial counsel, he was surreptitiously viewed by Miller at the prompting of the State for purposes of identification while he was in court the day before trial on pretrial motions. However, there is absolutely nothing to suggest that Miller's seeing the defendant was because of anying other than a chance encounter. There is no evidence that the State knew of the incident, much less inspired it. The defendant's trial attorney's motion to interview the witness prior to trial had been granted and for all one can tell from the record the incident may have occurred because of this. The trial attorney did not evince surprise or alarm at Miller's reply to his question, nor did he object to any of Miller's in-court identification testimony. Finally, there is nothing to suggest that Miller's identification of the defendant on the day before trial was anything but a spontaneous recognition of a person known by him.
We do not find the defendant's citation of Mason v. United States (D.C. cir. 1969), 414 F.2d 1176, persuasive. In Mason the court held that a confrontation at a preliminary hearing entitled the defendant under Wade and Gilbert to have his counsel present. However, there the police had arranged for the witness to be present at the defendant's preliminary hearing for the purpose of identifying the defendant. We need not examine the Mason holding that an identification made at the defendant's preliminary hearing was within the command of Wade and Gilbert, for the factual situation here is obviously distinguishable. There is no evidence, as we have said, that Miller was in the courtroom at the request of the State, or even with its knowledge.
Too, the record presents strong evidence of an independent basis for the witness's in-court identification. Immediately prior to trial the defendant had moved to suppress the anticipated identification testimony of the State's witness charging that there was no basis for a courtroom identification. The court granted a hearing to ascertain whether there was a basis. At the hearing, which was conducted in the absence of the defendant, the witness testified that he had known the defendant for four months before the crime charged; he described the physical characteristics of the defendant; he described the neighborhood in which the crime had occurred; and he stated that at the time the defendant made the sale to him he had a good opportunity to observe the defendant under well-lighted conditions.
Considering this, we believe that the record establishes an independent source for the witness's in-court identification. See People v. Watkins, Docket No. 42759; People v. Harris, 46 Ill.2d 395; People v. Triplett, 46 Ill.2d 109; People v. McMath, 45 Ill.2d 33; ...