APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
P. DELANEY, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Defendant, Peter Newsome, was indicted for the offenses of aggravated battery causing great bodily harm, attempted murder, and aggravated battery by use of a deadly weapon against the person of Stanley L. Brown. A fourth count of the indictment charged the defendant with the attempted murder of Ronald Epting. After a bench trial in the Circuit Court of Cook County, the defendant was found guilty of both attempted murder of Stanley Brown and aggravated battery by use of a deadly weapon against him. The court then sentenced the defendant to not less than five nor more than twelve years in the Illinois State Penitentiary.
The issues presented on appeal are: whether the defendant was denied due process of law by the refusal of the trial court to grant a pretrial hearing on the issue of certain identification testimony; whether the State proved beyond a reasonable doubt the defendant was the person who committed the offenses alleged in the indictment; and whether the court considered incompetent evidence which was prejudicial to the defendant in arriving at its findings.
On January 10, 1970, at about 4:00 P.M., Stanley Brown left his home at 6030 South Carpenter Street, Chicago, with two teen-age companions. One of these companions was Ronald Epting. As Brown walked down the stairs and turned to walk south on the street, he looked over his shoulder across a nearby vacant lot and saw the defendant, Peter Newsome, and another youth, Carleton Thomas, in a gangway. This gangway is directly across the street from Brown's house about fifty to sixty feet away. Brown testified the defendant had a single barrel shotgun and Carleton Thomas had a pump shotgun. At this point, Thomas fired a shot at Brown hitting him in the left side of the head. As he attempted to get away, Brown saw the defendant shoot him in the forehead. Brown's stepfather then came to his aid, dragged him to the street and hailed a passing police car which took Brown to the Englewood Hospital. Ronald Epting was also wounded and taken to Englewood Hospital. As a result of his injuries, Stanley Brown lost his right eye and suffered damage to his left eye.
Brown testified he knew both assailants by their first names and approximately where each lived. Thelma Brown, the victim's mother, also testified as to the first names of the assailants and approximately where each resided. She further testified that following the shooting she observed three boys in the gangway across the street. Two of the boys had guns. Mrs. Brown identified the two with guns as the defendant and Carleton Thomas, both of whom she had seen around the neighborhood.
Ronald Epting, who was also wounded by a shotgun blast, testified he saw two assailants with shotguns immediately after Stanley Brown was shot. They were in the gangway across the street from the Brown house. He identified the assailants as the defendant and Carleton Thomas. As he ran from them he was wounded in the back and taken to Englewood Hospital. He testified that while he was in the hospital the defendant and Carleton Thomas' brother saw him and threatened his life if he appeared in court.
The defendant, Peter Newsome, attempted to refute this and other testimony by presenting alibi witnesses who testified that at the time the shooting occurred he was at home. The alibi witnesses were his mother, aunt, uncle and cousin. All established that at approximately 4:00 P.M. on January 20, 1970, Peter Newsome was at home.
Five days after the shooting, the defendant entered the Seventh District Police Station with some other boys looking for a friend. Thelma Brown, the victim's mother, then identified the defendant as one of the assailants, and he was immediately taken into custody.
Defendant was subsequently indicted and tried for the shooting of both Stanley Brown and Ronald Epting. It is from his conviction on two of the four counts of his indictment that he herein appeals.
Following assignment of the instant case for trial, defense counsel requested the trial court grant a pretrial hearing to determine whether any suggestive influences had been brought to bear upon Ronald Epting in his identification of the defendant. Epting was named as the victim of attempted murder in the fourth count of the indictment against the defendant. The trial court denied this request. The defendant contends this refusal by the trial court was a denial of due process of law. We do not agree with this contention.
Defendant predicated his request for a pretrial hearing upon the holding in People v. Bean (1970), 121 Ill. App.2d 332. In Bean, the defendant was arrested without probable cause. This arrest led to the identification of the defendant by a robbery victim. On appeal it was conceded the arrest was improper and that without the improper arrest the identification would never have taken place. Consequently, the in-court identification testimony of the victim should have been suppressed as the product of an unlawful arrest.
The instant case is clearly distinguishable from Bean. In this case, the defendant made no showing of an unlawful arrest. Moreover, defense counsel admitted probable cause for the arrest of the defendant arising from the alleged shotgun attack had been shown at a preliminary hearing two months prior. Consequently, since there was no unlawful arrest in the instant case, the Bean decision does not apply.
A second argument urged by defendant in attempting to gain a pretrial hearing is such hearing was necessary to determine whether any suggestive influences had been brought to bear upon the witness in his pretrial identification of the defendant. After interviewing Ronald Epting, defense counsel admitted to the trial court that up to that time there had not been any pretrial confrontation or identification by the witness.
• 1 This court readily recognizes the right of an accused to show a pretrial confrontation is so wanting in fairness that it is conducive to a deprivation of due process. (Stovall v. Denno (1967), 388 U.S. 293.) The denial of defendant's motion for a pretrial hearing, by defense counsel's own admission, could not have prejudiced the defendant in any respect since there was never any pretrial identification upon which suggestive influences could have been brought to bear. When both the trial court and defense counsel know there is no identification susceptible to suppression, there is no reason to hold such a hearing. Since the defendant failed to ...