APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 29, 1972.
In a bench trial in the circuit court of Cook County, the defendant, Hector Pagan, was found guilty of the murder of Frank Cmiel and sentenced to a term of 25 to 40 years in the penitentiary. He appeals from that conviction alleging various errors.
On Saturday, February 15, 1969, at about 4:00 P.M., the decedent, Frank Cmiel, and five other young persons were walking along a street in Chicago when a black Cadillac containing about six people pulled up. All four doors flew open, and one of the occupants jumped out with a gun in his hand. Someone said: "We'll get you `Fish'" "Fish" being the nickname of one of the decedent's companions. The decedent and his friends started to run. As they were running, a shot was fired which struck and killed Cmiel.
Shortly after the incident, the decedent's companions told the police that the person with the gun had a goatee and a moustache. On the following day, February 16, the defendant voluntarily turned himself in to the police in Aurora, Illinois. He was taken to Chicago and agreed to appear in a lineup. Four of the persons who had witnessed the incident the previous day were present at the lineup, and each of them identified the defendant as the person he had seen at the scene of the shooting with a gun in his hand. At the lineup the defendant was clean-shaven.
Four of the decedent's five companions testified at the trial, and each of them made courtroom identifications of the defendant. They testified that after the defendant jumped out of the car and before they turned and started to run, they were able to observe the defendant for a brief period of time. They each saw a gun in his hand and noted that he had a goatee and a moustache. The occurrence witnesses also testified that they had either seen or talked to the defendant on previous occasions.
The defendant denied shooting Cmiel and presented an alibi defense. Several witnesses, including the defendant's brother, his step-father and a barber testified that the defendant was in Aurora on February 15 at or near the time the shooting occurred and that he did not have a goatee or a moustache on that date. Testifying in his own behalf, the defendant stated that he had not been in Chicago at any time on the day Cmiel was killed. On cross-examination, he said that at one time he had a goatee but that he had shaved it off before Christmas.
During the People's case in chief, Detective Frank Bertucci testified that subsequent to the lineup on Sunday, February 16, the defendant made a statement that he had shaved off his moustache and goatee on the preceding morning, i.e., the morning of the day that Frank Cmiel was shot. This statement was in conflict with the defendant's subsequent testimony to the effect that he had been clean shaven for approximately 1 1/2 months prior to the occurrence. On this appeal, the defendant urges that his statement to Officer Bertucci should not have been admitted into evidence, since he was not given adequate Miranda warnings of his right to appointed counsel prior to questioning. This contention cannot be sustained. During the trial, Officer William Lenz testified that he was present with Detective Bertucci and the defendant at the time Bertucci warned defendant of his rights. Officer Lenz testified as follows:
"Detective Bertucci advised him that he did not have to say anything at this time. And secondly advised him that if he did say anything that it could and would be used against him at a future date in a court of law. He thirdly advised him that he had a right to have an attorney present at any time that he was being questioned and at this time.
He fourth advised him that if he did not have the money to obtain counsel that free counsel would be provided for him by the state and that he had a right to have this counsel present at any time that he was being questioned. He asked him if he understood and Mr. Pagan indicated that he did understand.
Mr. Pagan said that he had nothing to hide and knew nothing about the shooting. He was then asked about a beard or a moustache and he told us that he did have a beard but he had shaved it off on Saturday morning."
Detective Frank Bertucci testified that he warned defendant as follows:
"I told Mr. Pagan, `You have the right to remain silent. Do you understand that?' He replied `Yes,' he did. I then told him that anything he said could and would be used against him in a court of law. I asked him if he understood that. He replied that he did.
I then told him he had the right to have an attorney present during any and all questioning and asked if he understood that. He again replied that he did. I also told him that if he could not afford an attorney, one would be appointed to defend him by the court and asked him if he understood that. He replied that he did.
I then told him that we would like to have him stand in a show up and I advised him again of his constitutional rights, also telling him that he had a right to have an attorney present during any and all show ups or lineups conducted."
In our opinion, there was sufficient uncontroverted evidence before the trial court to sustain a conclusion that the defendant had been sufficiently apprised of his right to an attorney, either retained or appointed, prior to any questioning.
Defendant raises a similar contention with respect to the lineup. Relying on decisions of the United States Supreme Court in United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951; and Coleman v. Alabama (1970), 399 U.S. 1, 26 L.Ed.2d 387, 90 S.Ct. 1999, defendant argues that he was entitled to assistance of counsel at the lineup and that he was not sufficiently advised of his right to have counsel appointed for him prior to the lineup if he could not afford to hire his own attorney. Again, we believe the record amply indicates that the defendant was sufficiently informed that he could have the assistance of appointed counsel prior to questioning and during the lineup. The record establishes that despite such warnings, the defendant voluntarily chose to participate in the lineup without the assistance of counsel, and waived any right to counsel under circumstances indicating that such waiver was knowingly and voluntarily made.
As previously noted, all of the State's occurrence witnesses made courtroom identifications of the defendant. Defendant contends that the identification testimony of three of those witnesses Bobby Gaytan, Clyde Bobnock and Joe Lochirco resulted from unnecessarily suggestive pretrial identification procedures. On the date of the shooting, and apparently again the next day prior to the lineup, Bobby Gaytan viewed two photographs shown to him by the police and selected one of them which showed the defendant without a goatee or moustache. Bobnock was also shown pictures (an undetermined number), and he also identified one as that of defendant. The record contains no other details as to the circumstances under which the photographs were exhibited to the two witnesses. During the lineup itself, Gaytan, Bobnock and Lochirco separately viewed a lineup of three men which did not include the defendant. Each witness indicated that no person in that lineup was the assailant. Subsequently, each witness separately viewed a four-man lineup which contained the three persons previously viewed plus the defendant. Each witness identified the defendant as the person he had seen with a gun in his hand at the scene of the shooting the previous day.
Although the pretrial identification procedures may not have been perfect in all respects, we are of the opinion that on the facts of this case the defendant has not met his burden of establishing that the pretrial events were so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967; Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Eubank (1970), 46 Ill.2d 383; People v. McMath (1970), 45 Ill.2d 33; People v. Watkins (1970), 46 Ill.2d 273; People v. Johnson (1970), 45 Ill.2d 38; People v. Nelson (1968), 40 Ill.2d 146.) Of particular significance is the fact that each of the identification witnesses had some acquaintance with the defendant prior to the shooting. Gaytan testified that he had seen the defendant on several occasions, the most recent having been about two weeks prior to the incident. Bobnock had talked to the defendant about a month before the shooting and had been struck by the defendant at that time during an incident involving the defendant and Joe Lochirco. Lochirco also testified as to his acquaintance with the defendant and the confrontation he had with him in the presence of Bobnock a month prior to Cmiel's death. The defendant himself corroborated Bobnock's and Lochirco's testimony in this regard. It is thus clear that the defendant was no stranger to the three witnesses prior to their brief observation of him at the scene of the shooting.
We have given due consideration to selected portions of Bobnock's and Gaytan's testimony on cross-examination which defendant relies on to support his contention that their lineup identifications of him were in fact unduly influenced by a photograph shown to them at the police station. While it is apparent that Bobnock did not entirely understand some of the questions asked of him on cross-examination, the substance of his testimony was simply that the picture he saw at the police station refreshed his recollection of what happened at the incident. This is understandable. Although Gaytan testified that the picture he saw at the police station may have helped him a "little" in his subsequent lineup identification of the defendant, he too exhibited lack of understanding as to the meaning of defense counsel's questions on cross-examination as can be seen from the following excerpts from the record:
"Q. Did this picture help you in any way to refresh your memory as to what Dino looked like?
A. The picture that I looked at?
Q. Did that help you in ...