APPEAL from the Circuit Court of Kankakee County; the Hon.
WAYNE P. DYER, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 10, 1972.
Defendant was found guilty by a jury in Kankakee County of the crime of armed robbery. Judgment was entered thereon and defendant sentenced to serve a term of four to seven years in the penitentiary.
On December 22, 1969, at about 1:30 P.M. an armed robbery was committed in a store known as Rudy's Market. The robber entered the store and after a brief discussion with the store manager, Larry Enz, revealed a sawed off shotgun under his coat and advised Enz it was a hold up. The two went to the courtesy booth and advised the cashier, Mabel Owen, to take the money from the cash register and put it into a paper bag. She complied and Enz and the hold up man, who insisted on more money, went to the office where Enz removed money from the safe and put it into a bag. The two of them then walked out of the store, side by side, and around to the back of the store. Donald Nelson, a salesman who serviced the store, was present both inside and later outside the store and saw Enz and the robber while they were together, however, he was unaware that a robbery was taking place. He testified as to seeing the two in the store and that as he passed them outside the store he exchanged greetings with them.
Prior to trial defendant filed a motion to suppress in-court identification of the defendant. The court denied the motion and denied defendant a hearing on the motion, advising that the motion could be taken up at trial. The trial court, believing that the motion to suppress had been heard and denied, refused to consider the motion. Subsequent to trial the trial judge discovered the error and hearing was then held on that motion. No point is raised in regard to this procedure, however, defendant contends that the methods of identification employed by the police were impermissibly suggestive and that it was prejudicial error to admit evidence based thereon.
At the hearing on the motion to suppress Sgt. Chaney of the Kankakee Police Department testified that one Larry Hawkins was identified as being in the store at the time of the hold up but was not involved in the same. Hawkins apparently had a criminal record and was suspected of having committed the crime. He was questioned immediately thereafter and according to Chaney advised him that he had witnessed the hold up. He identified the defendant as the participant. It was ascertained that the defendant worked at Uniroyal, a plant located in the Kankakee area. Chaney testified that his office had no photos of defendant and he went to Uniroyal where he obtained a colored photograph of the defendant taken from the plant's personnel file. He testified that he obtained the photograph either late on the evening of the 22nd of December or early in the morning on the 23rd. He then made a black and white Polaroid copy of the picture and placed it on an index card. He then removed 14 photographs from a high school yearbook and put each of the photographs on an index card and the 15 photographs were shown to Enz on the 23rd of December. He testified that by the time Enz had examined the photographs it was too late to obtain a warrant and he and another police officer "went out to locate the defendant and made the arrest."
Enz's testimony is not clear at one point as to whether the identification of the defendant made from these 15 photographs took place on the 23rd or the 24th. During the trial efforts by defense counsel to pinpoint the date were unsuccessful. He insisted the identification took place on either of the two dates, the 23rd or 24th. Subsequently at the hearing to suppress he stated he was certain the identification took place on the 23rd and based his conclusion on the fact that he attended the preliminary hearing on the 24th where he saw the defendant personally and that the identification from the photographs was made a day prior thereto. The record is clear that Enz's identification of the defendant from the photographs took place prior to defendant's arrest.
Defendant was identified at the trial by Enz, Owen and Nelson. Owen was the only other witness who made a photographic identification of the defendant prior to trial. This identification was apparently made after defendant's incarceration but the record does not indicate that her photographic identification was the same as that of Enz. The defendant was photographed after his arrest and from all that appears Owen's identification of him was from this photograph. No other attempt at identification of the defendant was made and a lineup was not employed at any time.
Defendant's argument on this point centers on whether or not defendant was in custody at the time Enz made his identification from the photographs. The record clearly indicates that the defendant was not in custody. Defendant acknowledges the need to use photographs during an investigation where the police are without knowledge of the identity of the criminal, then argues that People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634, governs the situation in the case at bar. In that case the Supreme Court stated:
"There is no need to resort to the use of photographs when a suspect is available for a fair lineup, which may be expected to yield a better opportunity for observation and accurate identification."
• 1 In the case at bar it cannot be said that the police were totally unaware of the identity of the criminal for Larry Hawkins had apparently advised them as to his identity. We do not think it was the obligation of the police to pick up the suspect and bring him in for the purpose of a lineup, but are more inclined to believe that the police had the duty to obtain some corroboration of Hawkins' statement before making the arrest. On the surface this appears to have been the situation.
• 2 It is noted that in People v. Holiday, supra, the court said, quoting from Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, "that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial 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." Defendant urges that the circumstances in the case at bar were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
The 15 photographs used by the police in their first identification of defendant by Enz are not in the record and there is no way this court can judge the quality of the photographs. It also suggests that the photograph of defendant was a glossy print while the other 14 pictures were taken from a book and that the picture of the defendant showed a man in his late 20's as opposed to 14 others of high school teenagers. If the argument has any merit this court is unable to judge, for the photographs are not available to this court for examination.
• 3 In any event we do not feel that the procedure followed by the police in this case was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. All witnesses had ample opportunity to see the ...