APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Defendant, Anthony Williams, appeals from a jury verdict and judgment of the Circuit Court of Cook County, wherein he was found guilty of attemted aggravated kidnapping of a nine year old girl and sentenced to the Illinois State Penitentiary for not less than seven nor more than twenty years.
On February 26, 1968, about 7:00 A.M., Annette Ambrose, a nine year old Caucasian girl, was walking north on the west side of Rockwell Street just north of 45th Street in Chicago, on her way to school. A stranger (later identified as the defendant herein) grabbed the girl from behind and began to carry her across the street toward an automobile, a 1968 Oldsmobile with license No. 911-508. She struggled and managed to escape when a motorist traveling north on Rockwell, Donald Schimek, drew near and stopped his car. Miss Ambrose ran away, and the man, a Negro, about twenty-one years of age, climbed into his car and drove off. Schimek followed him for a short time, noticed the license number of the car, and then stopped to find out what had happened. Miss Ambrose had run to a woman working in her yard nearby, and when Schimek asked the woman "if anything was wrong," the woman told him the Negro man had tried to kidnap Annette. Schimek gave a description of the man to the police and the license number of the automobile. Miss Ambrose also gave a description of her assailant to the police.
On March 1, 1968, a Robbins police officer found the defendant asleep in a 1968 Oldsmobile bearing license No. 911-508. The car had been stolen on February 25. Defendant was arrested and taken to the Blue Island police station and later transported to a Chicago police station in connection with the Annette Ambrose case by Officer William O'Connor of the Chicago police. On the same day, the Chicago police conducted a lineup with seven participants. Miss Ambrose identified the defendant, as did Mr. Schimek. Officers O'Connor and Richard Bedran, who conducted the lineup, did not advise the defendant of his right to be represented by an attorney at the lineup. Defendant claims the trial court erred in allowing the identifications into evidence because the defendant was not represented by an attorney at the lineup, arguing that United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), endow the defendant with an absolute right to counsel at a lineup proceeding. The defendant overlooks the fact that in both the Gilbert and Wade cases the lineup was held after the defendant was indicted. In the instant case the defendant had not yet been indicted, and this distinction was drawn by our Illinois Supreme Court in People v. Palmer, 41 Ill.2d 571 (1969), where the court said (p. 572):
"Each of those cases involved a lineup proceeding which was conducted after the defendant had been indicted and after counsel had been appointed for him. In each case the defendant's attorney was not notified of the lineup and was not present. The Supreme Court held that the lineup was a critical stage of the proceedings and that defendant was entitled to the presence of counsel. In our opinion these `lineup' decisions apply only to post-indictment confrontations. We reach this decision because of the language of the United States Supreme Court in these cases and in the subsequent case of Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967."
The court further said (pp. 572-573):
"In Wade, the court stated that the question was `whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identification purposes without notice to and in the absence of the accused's appointed counsel.' (388 U.S. at 219, 18 L.Ed.2d at 1153, 87 S.Ct. at 1928.) In Gilbert the court summarized its decision in Wade as follows: `We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.' (388 U.S. at 272, 18 L.Ed.2d at 1186, 87 S.Ct. at 1956.) In Simmons the court in referring to the `lineup cases' stated `The rationale of those cases was that an accused is entitled to counsel at any "critical stage of the prosecution", and that a post-indictment lineup is such a "critical stage."' 390 U.S. at 382, 19 L.Ed.2d at 1252, 88 S.Ct. at 970."
In People v. Cesarz, 44 Ill.2d 180 (1970), the court reaffirmed the conclusion it reached in Palmer (p. 184):
"As we pointed out in People v. Palmer, 41 Ill.2d 571, the Gilbert decision applies only to post-indictment confrontations and the rule requiring automatic exclusion because of the absence of counsel is not applicable here."
The trial court in the instant case was correct in its ruling.
Defendant was indicted in the following language, in part:
"He, with the intent to commit the offense of aggravated kidnapping, attempted to knowingly and secretly confine Annette Ambrose, a child under the age of thirteen years, by putting said Annette Ambrose into an automobile, in violation of ch. 38, par. 8-4 of the Illinois Revised Statutes, 1967."
A written motion was made to suppress the identification, stating:
"The identification by the witness was induced by actions of the police. The Manner in which the police acted directly caused the identification witness to point out the defendant in violation of his constitutional rights under the Fifth and ...