APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. McMILLEN, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Defendant Clarence Morris was convicted of aggravated battery and attempt with intent to commit robbery following a jury trial and was sentenced on both counts to two to five years in the State penitentiary, sentences to run concurrently. Defendant appeals his conviction on the grounds that (1) the in-court identification of the defendant was tainted by an improper line-up identification; (2) the search without a warrant that produced a weapon was too remote in time and place from defendant's arrest; and (3) the State failed to present an accurate Bill of Particulars within sufficient time to allow the preparation of a defense.
The evidence in this case indicates that on February 2, 1968, Mr. Frank Cooper left a wake at 8:35 p.m., in the City of Chicago and drove to 79th and Drexel where he parked his car. Because the snow was deep on the sidewalk he chose to walk down the middle of the street. After a few steps he heard someone behind him say, "Hold it, don't turn around; don't take your hands out of your pockets." Mr. Cooper testified that he did turn around and saw the defendant six to eight feet away crouched down at the rear end of a car. The illumination, according to the witness, was "light as day", since the street lighting was intensified by snow on the ground. As he turned around, Cooper testified that the defendant shot at him four times, hitting him once in the shoulder.
Mr. Cooper described his assailant as approximately 17 years old, better than 5 feet tall, wearing a cap, and having a dark complexion, a sloped face, and a smirk on his face that he (Cooper) would never forget. Frank Cooper testified that he also saw the gun which the defendant was holding and described it as being dark and of a small caliber.
Seconds after the shooting, Mr. Cooper followed his assailant toward a gangway, heard someone else with him, but gave up the chase and went to a drugstore to call the police. The police arrived and twenty minutes later brought in a youth for Mr. Cooper to identify at the drugstore. Mr. Cooper said the youth was not his assailant.
On March 24, 1968, the defendant Clarence Morris and a friend were apprehended by two police officers while they were standing on the corner of 68th and Stony Island. The officers suspected them of being curfew violators. Officer Jasagielnik testified that as he approached the defendant by car, the defendant ran down the street, put something behind a parked car, and returned to the corner. The officer went to the car with a flashlight and found a .32 caliber hand gun behind one of the tires. He put the gun in his belt and returned to the corner whereupon the defendant said, "that ain't my gun". Officer Jasagielnik then arrested the defendant and his friend.
On March 26, 1968, the defendant was arrested again and his home searched pursuant to a search warrant. Nothing was found. On the same day defendant was placed in a police line-up with two adults. One of the men was a police officer who had a mustache; the other man had a round face. Both men, like the defendant, were Negroes. Frank Cooper identified the defendant as his assailant, stating "that number three man I never will forget him."
Defendant contends on appeal that the line-up used by the police to obtain an identification of the defendant was so unnecessarily suggestive that the subsequent in-court identification of the defendant was prejudicial and violative of due process. Defendant relies exclusively on United States v. Wade, 388 U.S. 218, Gilbert v. California, 388 U.S. 263 and Stovall v. Denno, 388 U.S. 298. Two of these three landmark cases decided by the U.S. Supreme Court, United States v. Wade and Gilbert v. California, dealt with the abuses of the police line-up as a means of pre-trial identification, and the consequences thereof. Wade and Gilbert specifically held that the in-court identification by a witness to whom the accused was exhibited before trial in the absence of counsel must be excluded unless it can be established that such evidence had an independent origin or that error in its admission was harmless. (United States v. Wade, 388 U.S. 218, 219, Gilbert v. California, 388 U.S. 263, 264.) The holding in these cases applies to the case before us since the pre-trial line-up occurred after June 12, 1967, the date of the Wade and Gilbert decisions.
The Supreme Court and Appellate Court of Illinois have applied the rule enunciated in Wade, Gilbert, and Stovall v. Denno, in the following cases:
In People v. Nelson, 40 Ill.2d 146, 238 N.E.2d 378 (1968), the Supreme Court of Illinois, relying on Stovall v. Denno, supra, affirmed the conviction of a narcotics pusher. In that case the court found that the defendant stood out at a line-up not because of any suggestive conduct by the police, but because of his own attempt to conceal his face. The court also found that the in-court identification of the defendant was independent of the line-up since the witnesses had known the defendant as a customer up to five months before the sale in question.
In People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152 (1969), four victims of a robbery in a laundromat first viewed the defendant alone in a room in a police station, then viewed the defendant with a suspected accomplice in the same room. The Illinois Supreme Court found the viewing to be a suggestive confrontation and consequently vacated judgment, remanding to the trial court to afford the State an opportunity to prove that the four witnesses' identification of the defendant at trial had an origin independent of the improper confrontation.
In People v. McMath, 104 Ill. App.2d 302, 244 N.E.2d 330 (1968), the Illinois Appellate Court held that a pre-trial confrontation between the victim of a robbery and the accused first at a gas station shortly after the robbery and later at a police station where the accused was the lone suspect was unfairly suggestive. Yet, the court also held that the victim's observation of the defendant at the time of the robbery disclosed a sufficiently independent source to stand as the basis for the court room identification. The sufficiently independent source consisted of the victim's observation of his assailant's height, build, and dress (a dark zipper jacket and gray hat) even though the assailant wore a stocking cap over his face at the time of the robbery.
• 1 It appears from these cases that in an attack by a defendant on the admissibility of an in-court identification, it must be shown, first, that the pre-trial identification confrontation was unnecessarily suggestive and conducive to mistaken identification and second, that the State did not prove by clear and convincing evidence that the subsequent in-court identification had an independent origin arising from the uninfluenced observation of the defendant.
• 2 In the instant case, we believe the facts and circumstances of the pre-trial line-up were prejudicial and suggestive. The 18 year old defendant was placed in a line-up with two adults physically dissimilar to him. The police officer who conducted the line-up claimed that after the defendant was informed of his right to have an attorney present at the line-up, he stated he did not want an attorney. An attorney in the station spoke to the defendant before the line-up but was not present at ...