APPEAL from the Circuit Court of Cook County; the Hon.
REGINALD J. HOLZER, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 13, 1972.
The defendant, Ezell Rodgers, was found guilty by a jury of murder, (Ill. Rev. Stat. 1965, ch. 38, par. 9-1 (a)), attempted murder, (Ill. Rev. Stat. 1965, ch. 38, pars. 8-4(a), 9-1(a)1), and armed robbery, (Ill. Rev. Stat. 1965, ch. 38, par. 18-2(a)). Rodgers was sentenced to the penitentiary for terms of from 75 to 100 years for murder, from 19 to 20 years for attempted murder and from 20 to 40 years for armed robbery, the sentences to run concurrently.
The facts, as testified to by Willard Ingersoll, the State's chief witness, are as follows: On November 7, 1965, Ingersoll was employed as an attendant in a gas station located at 1234 West Cermak Road, Chicago, Illinois. At approximately 6:30 P.M. on that date a truck was driven onto the station grounds in order that it might be weighed, the station being equipped with a truck scale. After the weighing, the truck driver, Harry Ganzen, left his truck and went into the stationhouse washroom. At about the same time the assailant, later identified as the defendant, drove a car, identified as a maroon 1963 Oldsmobile sedan, into the station stopping at the pump area approximately 100 feet from the stationhouse.
The assailant came into the stationhouse and asked Ingersoll to fill his gas tank, check the oil and wipe the windows. Ingersoll went out to the car and proceeded to service it. As he was doing so, one Hugo Rodriguez, a fellow employee of Ingersoll who was off duty at the time, drove into the station. He walked to where Ingersoll was servicing the car. Rodriquez and Ingersoll walked back to the stationhouse where Rodriguez showed Ingersoll how to turn on the station's outdoor vapor lights.
At this time the assailant was in one of the phone booths inside the stationhouse. Rodriguez and Ingersoll went back outside. Rodriguez then departed in his car, and Ingersoll went back to finish servicing the Oldsmobile.
Being unable to locate the oil dipstick, Ingersoll came back to the stationhouse and asked the assailant where it was located. The assailant accompanied Ingersoll back to the car, pointed out the dipstick and went back into the stationhouse. All of the station lights were on at this time. Ingersoll finished servicing the car and returned to the stationhouse where he told the assailant what the bill would be. The assailant told Ingersoll that the bill would be charged, and he gave Ingersoll a charge card. Ingersoll informed him that such a charge was not acceptable, and the assailant pulled out a gun. Ingersoll put up his hands, and the assailant told him to put them down. The assailant walked him to the back of the stationhouse near the washroom area. All of the stationhouse interior lights were on at this time.
When Ganzen came out of the washroom, he saw the gun and lunged for it grabbing the assailant's arm. The assailant fired, and Ganzen fell to the floor mortally wounded.
The assailant told Ingersoll to go into the washroom and put his hands against the wall. The assailant then moved away from the washroom for one or two minutes and came back. Ingersoll heard another shot and started to turn around. The assailant then shot Ingersoll, the bullet penetrating his right eye. Ingersoll was hospitalized for a period of approximately three weeks, the result of the shooting being that he was blinded in his right eye. Ingersoll stated that he subsequently determined that a total of $190 in United States currency had been taken from the station consisting of $40 of his personal funds and $150 of the gas station's money.
Subsequent to his release from the hospital, Ingersoll and Rodriguez together gave a description of the assailant to the police in which the assailant was described as being a Negro about six feet tall, weighing 160 pounds and having black hair, brown eyes, light brown complexion, being rather well dressed and wearing a hat. They further stated that the assailant had about one day's growth of beard, sunken cheeks with pock marks, Caucasian features and was approximately 45 to 50 years of age. This description, later repeated to a police artist, was the basis for the making of a composite sketch of the assailant by the police.
During the following months Ingersoll viewed many police photographs of possible suspects. He never identified any of these, although he did note that several exhibited facial characteristics similar to those of the assailant. On December 28, 1967, some two years after the homicide, a police detective came out to Ingersoll's home and showed him a picture of the defendant. The picture portrayed the defendant with a hat which had been drawn thereon by a police artist. Ingersoll identified the defendant's photo as being a picture of the assailant, and later that day he picked the defendant out of a police lineup consisting of five men. Ingersoll stated that at the lineup the defendant appeared worried and started bouncing on his feet. At defendant's trial Ingersoll made an in-court identification of the defendant. In addition, he testified as to the pre-trial lineup identification.
A summation of the testimony of Hugo Rodriguez concerning the facts is as follows: On November 7, 1965, at approximately 6:30 P.M. he drove into the gas station located at 1234 West Cermak Road, Chicago, Illinois, where he worked as an attendant. Alighting from his car, he went to turn on the outside station lights. Going inside the stationhouse, he first saw a Negro man in the phone booth; later he saw the same man standing on a stoop or raised platform on which the phone booths were located. He described the man as being between 45 and 50 years old, 160 pounds and about 6'2" tall and well dressed. He further stated that the man had "something dark, something on his face in the cheek area. He was a Negro, wearing a small hat and had pock marks on his face." After turning on the lights he went outside and over to the car on which Ingersoll was working. Rodriguez later identified the car as a maroon 1963 Oldsmobile "98." He then got back into his car and left.
Detective William Thompson's testimony can be summarized as follows: In December of 1965 he was investigating the Harry Ganzen homicide. Among other activities his police unit was assigned to locate the car used in the crime. He came upon a car matching the description parked on a street in Chicago. A check revealed it was registered to the defendant. Officer Thompson interviewed the defendant at his home and received the latter's consent to "go and look" at the car. At Thompson's request, but not under arrest, the defendant accompanied Thompson to a local police station where he was photographed and questioned concerning his employment. He was then returned home by the police.
Officer Thompson stated that the defendant's photograph was taken for the purpose of having it viewed by the victim in the instant case. Nevertheless, he did not show it to Ingersoll or anybody else at that time. He stated he placed it in his personal police file where it remained until January 8, 1968, when he turned it over to Detective Sandburg who had visited Ingersoll on December 28, 1967, and shown him a picture of the defendant. (We note that the record is silent as to the origin of the picture shown to Ingersoll on December 28, 1967.)
Mr. Donald Tilton, the Collection Manager for an automobile finance company which had financed the purchase by the defendant of the automobile previously identified herein, testified as follows: In December of 1964 his company made an auto loan on a 1963 Oldsmobile "98" to the defendant which was to be repaid in 36 monthly installments of $87.54 each. The payments were due on the 10th of each month. From December of 1964 up to November of 1965 none of the payments were made on time. However, in November of 1965 two past due installments of $87.54 were paid by the defendant. No payment was made in December of 1965, and subsequently, in October of 1967, the car was repossessed and sold.
Mr. John Niesen, the retired manager of an industrial cafeteria, testified that through the end of 1965, when he quit, the defendant had been employed by Niesen for about two and one-half years. At the time of his termination, the defendant's net take-home pay was approximately $90 per week.
• 1 On appeal one of the issues raised by the defendant is that the identification procedures involved here denied him due process of law. The thrust of his argument is that Ingersoll was shown a photograph of the defendant on December 28, 1967, which photograph was presented singly and with a hat drawn thereon. The hat served to create an added resemblance of the defendant to the assailant and thus suggestively induced the identification of the defendant's photo as that of the assailant.
In Stovall v. Denno (1967), 388 U.S. 293 the Supreme Court said at page 302:
"The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, * * *."
Individual "showups" under suggestive conditions have been held to be a violation of due process. (Biggers v. Tennessee (1968), 390 U.S. 404.) Some exceptions to this are Stovall v. Denno, supra, where the confrontation was deemed "imperative" because of the critical condition of the only witness; People v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208 where the witness had an excellent opportunity to view the defendant over a very long period of time; People v. Robinson (1969), 42 Ill.2d 371, 247 N.E.2d 898 where the defendant was known by the witness prior to the crime; People v. Bey (1969), 42 Ill.2d 139, 246 N.E.2d 287 where uncommon distinguishing characteristics were the principal means of distinction.
Whether a "confrontation" by means of a photograph of the defendant could, under the "totality of circumstances" test, be held to violate a defendant's right to due process was a question recently considered by the Illinois Supreme Court in People v. Gersbacher (1970), 44 Ill.2d 321, 255 N.E.2d 429 where photographs of the defendant were identified by the critically ill prosecutrix. The Court held that in view of the totality of circumstances there was no violation of due process. However, the Court said at page 324:
"But for the exigent situation confronting the police the pre-trial identification procedure here employed could have been questioned * * *."
In Simmons v. United States (1968), 390 U.S. 377, photographs of the defendant were shown to the five witnesses to a bank robbery. All identified the defendant, and he was convicted although at trial only the in-court identifications of the witnesses were used. The defendant there argued that the identification procedure was so unduly prejudicial as to taint his conviction. The Court in Simmons recognized the potential for incorrect identifications with the use of photographs when such procedures were not carefully employed. Nevertheless, the Court was unwilling to set down a general prohibition of such identification procedures either in the exercise of their supervisory power over the federal courts or as a matter of constitutional doctrine. Rather, they said at page 384:
"Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pre-trial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. ...