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People v. Elam

OPINION FILED JANUARY 14, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

ANDREW ELAM, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK WILSON, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

The defendant, Andrew Elam, was convicted in the circuit court of Cook County of the offense of armed robbery after trial by the court, and was sentenced to not less than 5 nor more than 15 years in the State Penitentiary.

About 11:00 P.M. on December 27, 1968, James McGarrity, a bus driver employed by the Chicago Transit Authority, was traveling east on 59th Street in Chicago when he stopped at Racine Avenue, where a man and woman boarded his bus. The woman paid her fare and took a seat immediately behind the driver. The man, however, remained standing next to the driver, and continued to fumble through his pockets. Finally, he dropped his hand behind McGarrity's back and said: "This is a small gun but it will blow your back out." He demanded money, and McGarrity gave him some folded currency from his shirt pocket. The man then stepped down on the step by the door to the bus, faced McGarrity and, with his hands still in his pockets, ordered McGarrity to open the bus door. McGarrity complied and let the man off the bus at a point about fifty feet from the regular stop at Halsted Street. The man then walked westerly along 59th Street — the direction from which the bus had come.

Moments later, two police officers, in an unmarked squad car, saw the flashing lights of the bus, and stopped alongside it. They were informed by McGarrity that he had just been robbed, were given a description of the robber, and McGarrity left the bus and rode with the police officers in the direction the robber had taken. The woman, who had been seated behind McGarrity, advised the police that she could identify the robber, and went in a second police car to search for him.

McGarrity described the man as being about 5 feet 9 inches in height, with medium brown skin, a short "process" hair cut, a scar on his chin, and a mustache. He stated that the man wore a small-checkered topcoat and that he had been able to observe the man for about 5 minutes while he was in the bus, which was well illuminated.

Within 10 minutes after the robbery and about one and one-half blocks from where it occurred, McGarrity observed the defendant standing with several other individuals at the intersection of 60th and Halsted streets, and asked the two officers to back up their vehicle to afford him a better view. At that point the bus driver identified the defendant and stated, "Why, sure, that's the fellow." The officers then arrested, searched the defendant and removed from his pockets a knife, a half-pint bottle of whiskey, and 13 folded one-dollar bills. The police car in which the woman was riding arrived shortly thereafter, and she also identified the defendant as the robber while he was seated in the other vehicle with McGarrity and the two officers.

At the trial, McGarrity testified that the dollar bills taken from the defendant were folded in the same manner as the bills which were taken from him on the bus. Both McGarrity and the arresting officer testified that when the defendant was arrested he attempted to kick McGarrity and asserted that the bus driver had robbed him.

The woman bus passenger testified that she had seen the defendant leaving a tavern before boarding the bus, that he had annoyed her while she was awaiting the bus so that she was forced to cross the street to wait until it arrived, and that she did not take her eyes off the defendant the entire time he was on the bus. She further testified that the defendant kept his hands in his pockets, and that he thrust something forward to a point from within one pocket.

The defendant testified in his own defense and denied that he had been on McGarrity's bus and that he had a knife when arrested. He admitted that a black and white checked coat which was admitted in evidence was the one he was wearing when arrested. The coat had been identified by McGarrity as the one worn by the robber.

Prior to the trial, the defendant moved to suppress the identification testimony of the bus driver and his woman passenger on the grounds that the defendant was without counsel when confronted by the two witnesses within 10 minutes after the robbery. The motion was denied.

The defendant, relying on United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, contends that the trial court erred in failing to suppress the identification testimony because the defendant was without counsel when the two witnesses confronted him minutes after the robbery. He also asks this court to reconsider its decision in People v. Palmer, 41 Ill.2d 571, wherein we held that the right to counsel at pretrial confrontations applied only to post-indictment confrontations.

The confrontation of which the defendant complains was not police-arranged, but rather, was a prompt on-the-scene identification of the accused by two eyewitnesses who aided the police in a search for the robber immediately after the robbery. This type of confrontation is common in the apprehension of criminal offenders.

In Bates v. United States (D.C. Cir. 1968), 405 F.2d 1104, the court at page 1106 stated: "There is no prohibition against a viewing of a suspect alone in what is called a `one-man showup' when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. The rationale underlying this is in some respects not unlike that which the law relies on to make an exception to the hearsay rule allowing spontaneous utterances a standing which they would not be given if uttered at a later point in time." The court further observed that such procedure fosters the desirable objectives of fresh, accurate identifications which may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing offender while the trail is fresh.

Such confrontations have been approved specifically by this court, and do not violate the principle announced by the United States Supreme Court 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 ...


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