APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 26, 1971.
A jury of the circuit court of Cook County found the defendant, James Fox, guilty of murder and he was sentenced to the Illinois State Penitentiary for a term of not less than 25 nor more than 40 years. He has appealed directly to this court, a constitutional question being involved. Supreme Court Rule 603, 43 Ill.2d R. 603.
On January 1, 1968, at about 5 P.M. Harry Bailey and his wife, Gladys, were in the living room of their apartment at 4451 North Mauldin in Chicago. Their station wagon was parked on the street in front of their apartment. There was not room for another car to park behind their station wagon without blocking the crosswalk. As Mr. Bailey was looking out his front window he observed a car pull up behind his and push it forward. He called his wife and they watched a man get out of the car and walk away. Mr. Bailey went out while Mrs. Bailey continued to watch from the window. She saw the man return with a woman. The woman got in the car and the man started talking to Mr. Bailey. Mrs. Bailey then joined her husband on the street. An argument developed over the fact that this man had pushed the Bailey car and the bumpers had become locked. There are different estimates as to how long the argument lasted. It appears to have lasted at least 30 minutes and at times was quite heated. It was described by one witness as being "face to face". Finally it appeared that the argument had run its course. Mr. and Mrs. Bailey started toward their house and the other man got into his automobile. As he did so he called Mr. Bailey a foul name. Mr. Bailey then returned to the car and when he was two or three feet from it the man shot him three times. Mrs. Bailey was about four feet from the man when this happened. The man immediately drove away. Mr. Bailey died the next day.
Melvin Poisso and his wife, Gladys, were walking to her brother's apartment that evening. As they passed the intersection they noticed three people arguing. Mrs. Poisso's brother was not home so they returned. At the intersection they noticed that the argument was still in progress so they remained and watched. Mr. Poisso stated that they were there almost 30 minutes. They were standing about fifteen or twenty feet away from the three participants and they witnessed the shooting. After he was shot Mr. Bailey told Mr. Poisso to call the police and to get the license number of the car. Although Mr. Poisso gave chase he was unable to secure the license number.
The lighting at the scene was described as good. There was a street light in front of the Bailey vehicle and one at the intersection behind the other car. There was snow on the ground. Mrs. Bailey and Mr. and Mrs. Poisso were able to give detailed descriptions of the car. It was described as a 1955 blue Chevrolet. On the driver's side there were two broken windows and the front bumper was bent. There was no chrome on the side of the car. Mrs. Bailey observed that there was primer paint around the headlights. Both Mrs. Bailey and Mrs. Poisso observed that the man was wearing a red sweatshirt with a hood and he was wearing a jacket over the sweatshirt. Mrs. Bailey observed that the woman who was with the man looked very young, around 19 or 20 and had long, brown hair. Mrs. Poisso stated that during the argument she was able to see all three participants and was able to get a clear view of the man's face.
On January 12, 1968, the police located a car that fit the description that had been given them of the one involved. The car was parked behind a building in which the defendant, James Fox, resided with his wife. The police took Mrs. Bailey and Mr. and Mrs. Poisso to view the car and they identified it as being the one involved in the incident on January 1. The police then went to the Fox apartment. Mr. Fox was not home but the police spoke to Mrs. Fox. At the request of the police she stepped to the rear porch of her apartment where Mrs. Bailey could see her. Mrs. Bailey said that Mrs. Fox was not the woman who had been in the car with the man who shot her husband. The three witnesses were then taken to the police station. Mrs. Bailey was not in the same car with Mr. and Mrs. Poisso. Mrs. Fox was also taken to the station.
After arriving at the station, at the request of a police officer, Mrs. Fox gave him two pictures of her husband which she had in her billfold. One picture showed her husband with her and the other showed her husband with another man. The officer then exhibited the pictures to the three witnesses. The evidence indicates that the witnesses were separated when the pictures were shown to them. It also appears that a different grouping of the pictures was used for each witness. Some of the witnesses were shown a picture of two men neither of whom was James Fox. All of them were shown at least one picture which showed the defendant. All three of the witnesses identified the defendant from these pictures as the man who shot Mr. Bailey. They remained at the police station while some police officers were dispatched to the Fox apartment. When the defendant returned from work the police officers were waiting for him and he was taken to the station and seated at a table in a large room in the Auto Theft Division. A plainclothes detective was seated at the table with him. There were 15 to 20 other people in the room. All, with the possible exception of one, were dressed in street clothes. Some were employees of the police department and some were people who had come to the station concerning the thefts of their automobiles.
After the defendant was seated the three witnesses were asked to step into the room one at a time to see if anyone was in the room whom they could identify. There is a conflict in the evidence as to the sequence in which the witnesses entered the room but it appears that each identified the defendant as the man who had shot Mr. Bailey. It also appears that there was no communication between a witness after he had identified the defendant and the other witnesses until after all three had identified the defendant. The defendant was then formally placed under arrest. Until that time the defendant had not been informed of his right to counsel nor did he have counsel representing him.
Prior to trial the defendant filed a pleading called a petition to suppress evidence which alleges that he was arrested on January 12, 1968, and taken to a police station where he was confronted by the three witnesses who identified him as the man who committed the offense; that this confrontation was a critical stage in the proceedings against him and he was entitled to representation by counsel and that at said confrontation he was not represented by counsel nor was he informed of his right to have counsel and, if indigent, of his right to have counsel appointed for him. The petition alleges that because of the denial of his right to counsel during the confrontation when the witnesses identified him as the man who committed the crime, any testimony by the witnesses identifying the defendant in any way as the man who committed the crime charged should be suppressed. The petition further alleges that the procedures followed were suggestive and conducive to mistaken identification, thereby denying the defendant due process of law. The petition then prays that the testimony of the witnesses concerning the identification of the defendant as the person who committed the crime charged be suppressed. Following a hearing, the court denied the relief prayed in the petition and the case proceeded to trial before a jury.
At the trial of the case each of the three witnesses made an in-court identification of the defendant as the person who shot Mr. Bailey. Each of the three witnesses also testified as to the proceedings at the police station on January 12, 1968, and told how they had identified the defendant from photographs and also had identified him personally in the room at the station. At the trial, the defendant made no objection, either to the in-court identification of the defendant, or to the testimony concerning the extra-judicial identification of the defendant at the police station.
The defendant claims the confrontation proceedings at the police station were constitutionally deficient for two reasons. First, he was denied his right to counsel at a critical stage of the proceedings in violation of the sixth amendment of the Federal constitution. Second, he was denied due process of law in violation of the fourteenth amendment of the Federal constitution, because the procedure of permitting the witnesses to view photographs of the defendant and then permitting them to view him personally while seated at a table was unnecessarily suggestive and conducive to mistaken identification.
Concerning his contention that he was denied his constitutional right to counsel at a critical stage, the defendant urges this court to reconsider its holding in People v. Palmer, 41 Ill.2d 571. Under the rule announced in Palmer, the defendant recognizes that he would not be entitled to counsel because in Palmer this court held that the constitutional right to counsel at a pretrial confrontation as defined in United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951, and Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967, applies only to post-indictment confrontations and not to confrontations which occur prior to the time that the defendant is formally charged with an offense. Because of the view which we take of this case it is unnecessary for us to consider the same in the light of Palmer.
The evidentiary question involved in identification testimony is two-fold: (1) in-court identification of the defendant and (2) testimony given in court concerning extra-judicial identification of the defendant by the witnesses in this case the identification of the defendant by the witnesses from pictures and from personal viewing at the police station. In the first situation, if the identification is based on a source independent of and untainted by the identification at the pretrial confrontation, the same is admissible even if the pretrial confrontation was conducted in violation of the defendant's right to counsel under the sixth amendment. (United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149 at 1166; Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178 at 1186.) Also, if the confrontation is conducted in a suggestive manner conducive to mistaken identification, the question of whether the defendant was denied due process of law in violation of his rights under the fourteenth amendment depends on the totality of the circumstances. If the witness had an adequate opportunity to observe, and there is little likelihood that the procedures used led to a mistaken ...