APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
In May of 1967, a jury in the circuit court of Cook County found the defendant, William Lee, guilty of murder. He was sentenced to death. On appeal the death sentence was set aside under Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770. The judgment of conviction was also vacated and the cause was remanded for a hearing at which the State would be given an opportunity to show that the in-court identifications of the defendant had an origin independent of the improperly suggestive identification procedures that had taken place. (People v. Lee (1969), 44 Ill.2d 161.) On remand the trial court heard evidence and then reinstated the conviction and sentenced the defendant to imprisonment for not less than 30 nor more than 50 years. The case is again here on direct appeal.
The murder for which the defendant was convicted occurred about 2:00 P.M. on January 13, 1966, during the robbery of J.P. Graziano, Inc., a wholesale grocery store located at the corner of Randolph and Peoria Streets in Chicago. Two Negro men, one "real tall, more like a giant" and the other a "little short fellow," entered the store and walked to the office at the rear. One of the men then shot an employee in the back with a shotgun. The employee, Gaetano Pampinella, eventually died from this wound. The shorter man took money from the owner's pocket and from a cash drawer, and the two men forced the occupants of the store to lie down on the floor. As they were leaving by the front door, Police Officer Neil Francis entered the store and walked past them. The two men continued out the door. The officer learned of the robbery and shooting, and began to pursue the two men. As he reached the corner in front of the Graziano store he saw the men about 20 feet away getting into an automobile. He managed to fire three shots at them before the car sped off.
Shortly thereafter, an automobile with three bullet holes in the back and a shotgun on the rear seat was discovered by a police officer four blocks south of the Graziano store. The car, which had been stolen earlier that day, had been abandoned after striking another car. At about the same time, three blacks engaged a taxi approximately four blocks from the scene of the automobile accident and were driven to a location on the west side of Chicago.
A few days after the shooting the police arrested Lawrence Anderson, who implicated the defendant in the crime. At his trial the defendant was identified as the taller of the two gunmen by two witnesses Fred Graziano, the son of the owner of the grocery store, and Officer Francis. The owner of the store, James Graziano, then 76 years old, also identified the defendant as the taller gunman, but his identification was extremely weak. He was unable to identify the defendant when he was within four feet of him, and then he identified someone in the courtroom other than the defendant. He did not identify the defendant until the defendant stood up in the courtroom at the request of the prosecutor.
Three other persons who were present in the store at the time of the shooting testified at trial, but none of them identified the defendant. Angeline Alioso, a bookkeeper at the store, testified that after she heard a loud noise she looked up and saw a rather tall Negro standing about four or five feet away from her with something in his hand. She stated that she then stooped behind her desk. She was unable to give any further description of the man and stated that she would be unable to identify him. Margaret Incavo, a clerk at the store, testified that she heard a blast and then stooped behind her desk. She apparently did not see the gunmen. Tony Genna, a friend of James Graziano, testified through an interpreter that immediately after he heard a strong noise a tall black man with a rifle grabbed his arm and led him into a smaller office located behind the main office. He stated that the man asked him for money and then left the room. Despite the fact that he looked at the tall man's face, Genna could not identify the defendant in the courtroom after the defendant was required to stand up. All he could say was that the defendant was the same size as the taller gunman.
The State also presented the testimony of Raymond Nault, a truck driver, and Louis Austin, a cab driver. Nault testified that at approximately 2:00 P.M. on January 13, 1966, while parked at Peoria and Adams Streets in Chicago, he saw, from a distance of 10 feet, three Negro men "galloping" away from an automobile accident. The only description of the men that he could give was that one was real tall and the other two were of medium height, and that all three were wearing black leather jackets and were bareheaded. He further testified that about a week later the police showed him some photographs but he was unable to identify any of them.
Austin testified that at about 2:00 P.M. on the day in question three Negro men entered his cab at Jackson Boulevard and Sangamon Street in Chicago and that he drove them to a location on Hamlin Avenue. The only description he could give of the three men was that one was taller than the other two. Although he testified that the taller man paid the fare, he was unable to identify the defendant as that man. He could only say that the defendant was about the same height and build as the man who had paid him.
From this summary of the evidence it is clear that the only substantial evidence connecting the defendant with the crime was the identification testimony of Fred Graziano and Officer Francis. The considerations that made it impossible to sustain the judgment of conviction were thus stated in the opinion of the court in the earlier appeal:
"It was stipulated by the State that, following his arrest and during the hours that defendant was in the immediate custody of the police, he asked for and was denied the services of a lawyer. Actually, defendant had no counsel until March 11, 1966, when the public defender was appointed for him. It was during this period that the police arranged identification procedures which defendant argues were so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny him due process of law.
The first of these occurred January 26 when defendant was being held in a cell adjacent to and behind the felony courtroom at 2600 South California awaiting preliminary hearing. Officer Neil Francis testified that this cell, referred to as a bullpen, was about 10 feet wide and 15 feet long, and it was then occupied by about 25 men including both Caucasians and Negroes. Officer Francis said he walked back to the restricted area of the bullpen and that when he saw the defendant he pointed and said: `William Lee, come here.' Then the officer asked: `Have you ever seen me before?' The defendant said nothing and walked away.
The second confrontation which defendant complains of occurred March 1, 1966, at a coroner's inquest as to the cause of decedent's death. Fred Graziano testified that prior to the inquest he received a phone call from the Chicago Police Department and was told he should come to the coroner's inquest because the police `had the guys that did it, come on down and identify them.' He informed his father of this communication and they both appeared at the inquest. While they waited in the hearing room the defendant was brought in handcuffed to Lawrence Anderson, a man whom both had previously identified in a lineup as the `short guy'. Both Grazianos saw the defendant handcuffed to Anderson.
The defendant contends that the circumstances of the confrontation at the inquest, where he was seen handcuffed to a previously identified participant in the crime, were `inherently tainted with unfair suggestion.' There is a dangerous degree of suggestion by association where a suspected accomplice is viewed together with a person previously identified by the viewers as a perpetrator of the crime. (See People v. Blumenshine, 42 Ill.2d at 512.) This suggestive influence was even ...