OCTOBER 6, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
CHARLES BREWER, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Cook County; the Hon. MINOR
K. WILSON, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
The defendant, Charles Brewer, was indicted for robbery and entered a plea of not guilty. At a bench trial he was found guilty and sentenced to a term of not less than five nor more than ten years in the Illinois State Penitentiary.
The defendant chose to appeal, and the public defender was appointed to represent him. The public defender now seeks to withdraw. He has filed a brief in support of his motion pursuant to the case of Anders v. California (1967), 386 U.S. 738. He states that a review of the record indicates two possible bases for appeal: whether the defendant was deprived of his Sixth Amendment right to counsel at the lineup, and whether the in-court identification of the defendant by the complaining witness was tainted due to a suggestive prior photographic and lineup identification.
The public defender notes the lineup was conducted prior to indictment, so there was no violation of the defendant's constitutional rights. People v. Palmer (1969), 41 Ill.2d 571.
He further notes that photographic identification is proper (People v. Caldwell (1969), 117 Ill. App.2d 64; People v. Williams (1969), 117 Ill. App.2d 34), and a four-man lineup is acceptable (People v. Caldwell, 117 Ill. App.2d 64). He therefore concludes under the totality of the circumstances test of People v. Blumenshine (1969), 42 Ill.2d 508, the three-man lineup cannot be deemed unfair.
The defendant received a copy of the public defender's motion and brief. He was also sent a letter from this court notifying him of the motion and giving him an opportunity to file any points he might choose to support his appeal. He has not responded to the letter, although three months have elapsed.
• 1 After a complete examination of the record, we have concluded the public defender is correct and there is no merit to this appeal. There is evidence the defendant was fully informed of his rights at all times during the proceedings from the time of his arrest. The photographic identification was made by the complaining witness from a group of ten or twelve photographs of men with similar physical characteristics after rejecting another group of twelve photographs in which no picture of the defendant appeared.
• 2 The defendant was identified at a lineup consisting of himself and two other men with similar physical characteristics. While it would be preferable to have more men in the lineup, the fact the complaining witness had seen the defendant prior to the crime, along with other identification evidence in the case, convinces us there was no unfairness.
The motion of the public defender to withdraw as counsel for the defendant is allowed and the judgment is affirmed.
ADESKO, P.J., and BURMAN, J., concur.
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