APPEAL from the Circuit Court of Madison County; the Hon.
JAMES O. MONROE, JR., Judge, presiding.
MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Lamar Sanders, a/k/a Michael Jones, the appellant hereinafter referred to as defendant, was charged by indictment with armed robbery, was tried before a jury and a verdict of guilty was returned. After a hearing on aggravation and mitigation, the defendant was sentenced to serve not less than three nor more than ten years in the Illinois State Penitentiary. The defendant has brought this appeal, contending the court erred in allowing the identification testimony to stand, and that he was not proven guilty beyond a reasonable doubt.
On the 14th of November, 1969, at approximately 7:30 P.M. the Tri-City Grocery on St. Louis Street in Edwardsville, Illinois was the scene of a robbery. Twenty-one hundred dollars was taken from Mrs. Margaret Schmidt. She was the cashier of the grocery store and the only eyewitness to the robbery. Mrs. Schmidt described the men who entered the store's office as Negroes, one about 5'8" in height and heavy about one hundred and ninety pounds. The other individual was smaller about 5 feet to 5'2" in height and weighing about one hundred pounds. She further described the smaller individual as wearing a black felt hat, blue shirt, dark trousers, and a black three-quarter length coat. She testified that the smaller of the two men pointed a gun at her and demanded the money. After taking the money, the two men left the store, at which time Mrs. Schmidt called the police.
The store manager, Mr. Ed Nelson, then testified that he was told by Mrs. Schmidt of the robbery, at which time he ran out of the store after the assailants. He stated he saw a white or gray, 1963 or 1964, Chevrolet automobile with two people in it. The two in the car then left the car and ran. Later he saw three men run across the road. Mr. Nelson returned to the store after hearing a noise which he thought to be a shot. Mr. Nelson could not identify the persons running, other than that they were of "the colored race".
Another witness, Mr. Kenneth Erb testified that he saw three men in the car and three men running after the automobile began to stall. He also testified to hearing a noise which sounded like a shot. He also could not identify the men except that he believed them to be Negroes.
A short time later Officer Epperson of the Edwardsville Police Department arrived upon the scene. Officer Epperson stayed with the car until Madison County Deputy Sheriff Rizzi arrived. Deputy Rizzi dusted the car for fingerprints. A disposable Falstaff quart bottle, a one-half pint bottle of Old Crow Whiskey, and one dollar bill were removed from the front seat of the car. The removed items were turned over to Officer Connor who subsequently delivered them that night to Edwardsville Chief of Police, Robert Dillon.
The defendant was arrested by Officer Connor the same evening of the robbery at about 10:20 P.M. At the time of his arrest the defendant was wearing pale blue trousers, a dark three-quarter length coat, and a camouflage type hat. Immediately after being taken to the police station, the defendant was fingerprinted by Officer Trever. The prints were also delivered that night to Chief Dillon. The items removed from the automobile and the fingerprints were sent to the F.B.I. and received back by the Police on December 8, 1969.
Shortly after 10:00 P.M. on the night of November 14th, the Police contacted Mrs. Schmidt at a bowling alley, picked her up and brought her to the police station to see if she could identify the defendant and another individual who had been similarly arrested, and was also in custody. Mrs. Schmidt viewed the suspects through a one-way mirror into the Chief's office. The two were brought into the office one at a time. Mrs. Schmidt identified the defendant.
The F.B.I. report on the fingerprints identified one print on the Falstaff bottle as belonging to the defendant. There were no other identifiable prints.
The defendant testified that he was at a tavern in Edwardsville at the time the robbery occurred. An attorney testified that he had given the defendant a ride to the tavern after seeing him at a hardware store. Olivia Townsend, the tavern owner, also corroborated defendant's testimony stating that she saw him in the tavern between 7:30 and 8:00 P.M. on the evening of the robbery.
A State's witness testified that on the night of the robbery he talked with someone who was in the abandoned automobile. He stated that he did not see the defendant in the car or in the parking lot when the man he was talking to began to run.
There was also testimony from the defendant, Mrs. Schmidt and Chief Dillon that at the time the defendant was brought to the Chief's office (for identification) the Falstaff bottle was sitting on the Chief's desk. The defendant testified that he touched the bottle while on the Chief's desk. Chief Dillon and Mrs. Schmidt testified that they did not see the defendant touch the bottle but that the Chief did ask the defendant not to touch the bottle. Mrs. Schmidt did testify, however, that she did see one of the suspects reach for the bottle.
Finally the defendant testified under cross-examination that his height was 5'6" to 5'7" and that his weight at the time of arrest was between one hundred and thirty to one hundred and thirty-five pounds.
The defendant made timely objection to Mrs. Schmidt's testimony identifying the defendant. The court reserved its ruling and the testimony was allowed to stand, after a hearing out of the presence of the jury, from which the court apparently determined there was an independent origin for the in-court identification. Defendant's objection was renewed and preserved for appeal by the post trial motion.
The defendant urges that the court below erred in denying defendant's motion to strike the identification testimony of Mrs. Margaret Schmidt. The appellee has failed to file a brief and thus we are not aware of the arguments that the State may have brought in opposition to the appellant's assertions. The burden that the defendant in the case must overcome in order to prevail in his argument is set forth in People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152. Referring to Stovall v. Denno, 388 U.S. 293, 87 S.Ct., 1967, 18 L.Ed.2d 1199, our Supreme Court said:
"We believe that Stovall requires that a defendant so claiming must prove that `the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' 388 U.S. at 301-2, 18 L.Ed.2d at 1206, 87 S.Ct. at 1972." (40 Ill.2d at 150.) If an accused can support this claim the evidence of identification is rendered inadmissible and not simply affected as to credibility. (See Gilbert v. California, 388 U.S. 263, 272-3, 18 L.Ed.2d 1178, 1186-7; Stovall v. Denno, 388 U.S. 293, 299-300, 18 L.Ed.2d 1199, 1205; People v. Caruso, 68 Cal.2d 183, 436 P.2d ...