APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. HERBERT C. PASCHEN, Judge, presiding.
MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
The defendants, Holice Black and Richard Black, who are brothers, were charged with the murder of a Chicago police officer and the armed robbery of a food store. They were tried together by a jury in the circuit court of Cook County and were found guilty of both charges. Defendant Holice Black was sentenced to concurrent sentences of 100 to 200 years for murder and 20 to 40 years for armed robbery. Richard Black received concurrent sentences of 75 to 100 years for murder and 20 to 40 years for armed robbery. The appellate court affirmed the convictions (130 Ill. App.2d 996) and we granted leave to appeal.
On August 4, 1965, shortly before 9:30 A.M., the Treasure Island Food Store at 2540 Lawrence Avenue in Chicago was robbed by a man armed with a gun. As he was taking money from the safe, Marilyn Moline, the cashier, set off a silent police alarm. Later a shrill whistle by an accomplice was heard from the front of the store and the robber hastily departed. A policeman responding to the silent alarm stopped a man who was running across the parking lot of the store and forced him to put his hands against the wall. The robber, emerging from the store and seeing this, shot and killed the policeman. Both men were then observed fleeing through the streets and alleys in the neighborhood as will be recounted later. They then disappeared. In December, 1965, some four months after the crime, defendant Holice Black was arrested in Miami, Florida, and a few days later defendant Richard Black surrendered in Chicago.
Four eyewitnesses identified either one or both of the defendants as the men involved in the robbery and murder. Dennis Ewing, about whose testimony no question of taint has been raised, was walking on Lawrence Avenue next to the food store parking lot about 9:30 A.M. on August 4, 1965. He saw a policeman running toward the lot. Another man started to run across the lot but stopped at the officer's command and started to put his hands against the wall as directed. This man was wearing a grey fedora hat. The witness then heard a noise and as he turned he saw another man emerge from the food store with a bag in one hand and a gun in the other. When he saw the officer he raised the gun and fired, killing the officer. The witness was about ten feet from the gunman. Shortly thereafter, at the police station, this witness identified Holice Black's picture from a book of photographs as the man who shot the policeman. Later the same day he also identified Richard Black from a picture as the other man in the parking lot who was wearing the grey fedora hat. In December he identified both defendants in different lineups and he identified both defendants at the trial. His positive identification has not been questioned by the defendants.
Marilyn Moline was the cashier of the food store. She identified Holice Black as the man who pointed the gun at her face and announced the holdup. He then entered the small cashier cage with her and proceeded to put the money in a bag he was carrying. While the robbery was in progress she was never more than three feet from him and had an excellent opportunity to observe him. After the robbery she went to the police station and identified Holice Black from photographs as the robber. She also subsequently identified him at a lineup and later at the trial. She testified that the robber was wearing a beanie-type hat. During the robbery she had seen the other man at the front of the store but was unable to identify him.
In addition to the two eyewitnesses there is substantial additional evidence which connects the defendants with the crime and corroborates the testimony of these witnesses.
A young woman testified that she had met Holice Black about 11:00 P.M. on August 3, 1965, and spent the night with him. She last saw him in his blue and white Buick at about 7:00 A.M. on August 4. At that time he was wearing a checkered shirt similar to the one that had been offered in evidence. At about 7:45 that morning a woman who lived in the vicinity of the food store saw a blue and white Buick park at the curb near her house and two Negro men get out. About 10:45 that morning a policeman investigating the crimes saw the blue and white Buick still parked where it had been left earlier. On its windshield was a license-applied-for sticker made out to Holice Black. About 5:30 P.M. that same day Holice and Richard Black went to their cousin's home in Harvey, Illinois, and asked him to take them to Gary, Indiana, which he did. They were taken into custody over four months later as previously indicated.
On August 4, 1965, at about 9:45 A.M., a lady who lived near the food store saw two Negro men run across the street and enter the gangway between her house and an adjacent one. She walked through her house watching the two men and saw them cross her backyard and jump over her back fence. She could not identify the men but stated one was wearing a checkered shirt similar to the one in evidence. About the same time a man who lived in an adjacent block was visiting on the porch of his neighbor when he saw two Negro men emerge from the gangway next to his house, run across the street and enter another gangway. Upon investigating he discovered in his gangway a checkered shirt rolled up which he identified as the shirt in evidence. He stopped a squad car which was passing and gave the shirt to a policeman. The policeman found a beanie-type hat rolled up in the shirt and a traffic ticket in the shirt pocket. The traffic ticket was identified by a traffic officer as one he had issued to Holice Black and had taken his driver's license in lieu of bail. The officer who had recovered the rolled up shirt, upon investigating in the gangway across the street in the direction that the two men had run, found a grey fedora hat in a garbage can. The male eyewitness to the shooting in the parking lot identified the checkered shirt as similar to the one that the gunman had worn and the grey fedora hat as similar to the hat worn by the other man whom the deceased officer had stopped. The cashier, who had been the victim of the holdup, identified the beanie-type hat found in the shirt as being similar to the one the gunman had worn. Also it was established that Holice Black had worked at an auto shop next to the food store and had cashed several of his paychecks in the store. The positive identification by the eyewitnesses coupled with the physical evidence and circumstantial evidence reviewed, when considered with the flight of the defendants after having abandoned the automobile near the scene of the crime, definitely tie Holice Black and Richard Black to the crimes with which they were charged.
Defendants did not file a motion to suppress the identification testimony of the witnesses prior to trial but on the third day of the trial filed a petition alleging that during the first and second days of trial attempts had been made by the prosecutor to have certain witnesses view the defendants in the courtroom and in the corridor. The petition contains no allegation as to suggestive pretrial identification tactics and asks no relief in relation thereto. The trial court denied the petition following argument but without hearing evidence. Defendants now contend that this was error. Had they been given the opportunity to be heard, they state that "perhaps" they could have shown even more suggestive lineup and prelineup procedures than they were able to show by way of cross-examination of the eyewitnesses during the trial. The simple answer is they did not request such a hearing. Not having done so they are not now in a position to complain of the lack of opportunity to explore the issue further.
This case having been tried prior to June 12, 1967, the date of the decisions in Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951; United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; and Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967, the exclusionary rule fashioned in those cases for lineup identification absent counsel does not apply, the rule being applied prospectively only. (Stovall v. Denno; People v. Nelson, 40 Ill.2d 146; People v. Dennis, 47 Ill.2d 120.) However, whether the identification confrontation occurred before or after Wade, Gilbert and Stovall, a defendant may allege and prove that the procedures used were so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the defendant due process of law. (Stovall v. Denno, People v. Dennis.) Had the defendants raised this issue in the trial court, they would have been entitled to present evidence to prove the issue.
Defendants complain of certain suggestive incidents which occurred after the cashier, Marilyn Moline, had identified Holice Black's picture at the police station but before she identified him in a lineup. We note however that her identification of this defendant at the police station occurred before the complained-of tactics. We also note that she had an excellent opportunity to observe this defendant and there is no indication in the record that her identification of Holice Black at the lineup or at the trial had its origin from other than her independent observation. If the witness has an adequate opportunity to observe, and there is little likelihood that the procedures used led to a mistaken identification, the conviction based on a subsequent in-court identification will not be set aside. Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967; People v. Fox, 48 Ill.2d 239; People v. Nelson 40 Ill.2d 146.
Defendants also contend that the identifications of the other two eyewitnesses were inadmissible because of suggestive pretrial procedures. These two eyewitnesses, one a check-out girl in the store and the other a female pedestrian in the parking lot, had less opportunity than Marilyn Moline, the cashier, to observe the defendants under conditions that would be conducive to an identification independent of any subsequent taint. However, as noted above, the question of pretrial identification procedures was not raised in the trial court. Constitutional questions as well as others may be waived by the absence of prior objections and the failure to preserve the same for review. (People v. Hanna, 42 Ill.2d 323, cert. denied, 399 U.S. 929, 26 L.Ed.2d 796, 90 S.Ct. 2229.) In light of the overwhelming evidence discussed above linking the defendants to these crimes, the admission of the unobjected-to identification testimony was harmless error beyond a reasonable doubt.
Considering defendants' petition to suppress the testimony of identification witnesses, it is their contention that the viewing of defendants in the court building rendered the witnesses' identification testimony inadmissible. Although no evidence was heard, there was a hearing on the petition at which counsel for the defense, the prosecution, and the court all expressed what, in fact, had occurred. It appears that on the first day of the trial, while a jury was being selected, three witnesses were brought into the courtroom. Defendants' counsel objected to their presence and the court ordered them to leave. The next day before the trial started two more witnesses were brought into the courtroom and upon objection by defense counsel they were asked to leave. They were then taken to an adjacent room from which position it would be possible to observe defendants as they passed through the corridor. When defense counsel again objected they were removed to another room. On the first day the defendants were in the courtroom when the witnesses appeared; however, on the second day the defendants had not been brought into the courtroom at the time that the witnesses were present, nor did they pass ...