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People v. Del Genio

FEBRUARY 15, 1973.




APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, JR., Judge, presiding.


Rehearing denied April 10, 1973.

The defendant, Anthony G. Del Genio, was indicted for armed robbery in which approximately $14,000 was taken on the evening of July 30, 1969. Defendant was found guilty in a jury trial and sentenced to 6-18 years in the penitentiary.

On appeal, defendant contends that the in-court identification of defendant was based upon a suggestive pretrial identification; that he was not proven guilty beyond a reasonable doubt, and that the prosecutor's closing argument contained prejudicial remarks constituting reversible error.

On the evening of July 30, 1961, two men went into the Pacemaker store in Rockford, Illinois. One was disguised in a red wig and wax mask. The other was not disguised. The disguised robber carried a brief case and went to the office where the manager opened the safe containing $13,000-$14,000 and the robber filled his brief case with the money. Six months after the robbery, Detective Francis of the Rockford police transported eyewitnesses, the cashier, Paula Dal Pra Corcoran, the store manager, Jerome Sullivan, and Shirley Scott, an employee of the store, to the Boone County jail at Belvidere to view two men believed to be the robbers of the Pacemaker store. When they arrived at Belvidere the Sheriff of Boone County asked the defendant to come out for a telephone call in the company of other prisoners. One Hollis Pruitt came out of the jail cell first and when he realized it was a surprise showup he shouted a warning back into the cell area to defendant, whereupon defendant refused to appear. Defendant never did appear and Detective Francis then showed the witnesses three photographs he had obtained from the Boone County sheriff. One photograph was of the first prisoner Pruitt, another was of the defendant, and a third picture was of a police lineup of four or five individuals, including the defendant. The witnesses Corcoran and Scott selected the defendant's picture as the undisguised robber. Store manager Sullivan was unable to identify defendant; he merely stated the picture looked more like the robber than anyone he had ever seen before.

On February 24, 1970, two weeks after the unsuccessful showup, the three eyewitnesses separately identified the defendant in a formal lineup in the Winnebago County jail. Two other witnesses, who did not have direct contact with the defendant, were unable to identify him.

Prior to trial two separate hearings were had on defendant's motion to suppress identification of the defendant. On January 6, 1971, the Public Defender conducted an extensive hearing on this motion. A motion for the substitution of private counsel for defendant was allowed and on February 17, 1971, before another Judge, once again an extensive hearing was had to suppress identification of the defendant. In both instances, the motions to suppress were denied.

At the trial, witnesses Corcoran, Scott and Sullivan, made an in-court formal identification of defendant. The cashier, Corcoran, definitely identified the defendant, testifying she had a face to face and side view of him under the store's fluorescent lights at a distance of a few feet for about a half a minute. She described his clothing, that he had a mustache, insisted he was not wearing glasses, and that she made a special effort to observe his features and clothing. Witness Shirley Scott testified she observed the undisguised defendant face to face at a distance of two and one-half to three feet for a matter of seconds. She recalled that when showed a photograph of defendant and others that she identified him. She described his physical appearance and the fact he did not wear glasses or have a mustache. The manager, Sullivan, testified he observed defendant from a distance of 6-10 feet. While he could not identify defendant prior to the lineup, he positively identified him in the lineup.

Detective Francis testified that it appeared between the time of trial and the showup at Belvidere, that the defendant had lost approximately sixty pounds. Two witnesses, who had not had a good view of defendant, indicated to the police artist who made a "composite" drawing of the robbers, that defendant and the other robber were wearing eyeglasses, and the official police description of the robber did include eyeglasses and a mustache.

The defendant asserts the trial court was in error when it denied his motions to suppress the identification testimony against him. Defendant contends the in-court identifications were based entirely upon a pretrial lineup procedure which was the fruit of a highly suggestive and tainted identification confrontation and photographic exhibition held six months after the armed robbery. He further contends the in-court identification did not have its origin independent and uninfluenced by the tainted pretrial lineup and photographic confrontations held prior to the in-court identification of himself. He claims, therefore, the in-court identification violates his right to due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. In support of his contention he has cited Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.

• 1 In further support of his contention he has cited People v. Lee (1970), 44 Ill.2d 161, 169, 254 N.E.2d 469, 473, which states in approval of Stovall v. Denno:

"The test is whether the identification procedures were `unnecessarily' suggestive and the methods used must be examined in light of the circumstances in each case."

With this, we agree. (See also, People v. Tuttle (1972), 3 Ill. App.3d 326, 278 N.E.2d 458.) In Lee the court found that the testimony of one witness in question was conflicting and inconclusive and the in-court identification by the other witness was "weak at best". That is not the factual situation in the case before us.

• 2 Defendant has further cited People v. Fox (1971), 48 Ill.2d 239, 246, 269 N.E.2d 720, 725, ...

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