APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT: Rehearing denied December 4, 1973.
After a jury trial defendant was found guilty of the crime of armed robbery *fn1 and sentenced to a term of 10 to 20 years. On appeal he contends:
1. He was denied due process;
(a) by the refusal of the trial court to allow his request for representation by his own attorney at the preliminary hearing, and
(b) because of the suggestive nature of the pretrial confrontation and the subsequent reception of identification testimony.
2. The identification evidence of him as the perpetrator of the crime was insufficient to support the conviction.
From the facts adduced it appears that on December 22, 1970, at 9:30 A.M., three men entered a small grocery store, owned by Charles and Florice Porter, and one of the men, Kenneth Murray, produced a gun and announced "they were holding up" the store. The gunman's accomplices grabbed Mrs. Porter, standing at the front of the store, by the arms and began pulling her towards a counter; the gunman "calling her all kinds of dirty names" and saying "he was going to blow her brains out." Thereupon, they ripped her apron and took the contents, cash and a check (made out for $4.03 and stamped on the back with the store's endorsement) and then rifled the cash register of its contents. Mr. Porter, who was in the back of the store, rushed down the aisle towards his wife and her assailants and as he approached, the gunman fired a short at him which missed. Defendants then fled with the money and the check.
The police were summoned and Officer Charles Johnson was given a description of the men by the Porters. Thereafter, a short distance from the robbery scene, Johnson observed someone fitting one of the descriptions. The suspect darted into a building and Johnson radioed for assistance, following which he and two other officers entered the building and proceeded to conduct a floor by floor search. On the top floor they found the suspect (defendant), earlier seen by Johnson. Defendant gave the officers the name of a person he said he was looking for in the building. When Johnson knocked on the apartment door he was informed that no one by that name lived there. Defendant was then arrested and, when searched, had currency totaling $56.41 and the check for $4.03, stamped as heretofore described. He was taken to the police station where, a police officer testified, he named the persons who committed the crime with him as "Cowboy" and "Peewee", "Peewee" being Kenneth Murray, who defendant said was the gunman. Acting on this information the police arrested Kenneth Murray at his apartment and found a .45 caliber pistol in the bedroom where Murray was hiding. This weapon was later identified by the Porters and further linked to the robbery, via the fired bullet, by a firearms examiner.
Later, on the day of the robbery, Mr. Porter tentatively identified defendant through a one-way mirror at the police station, and Mrs. Porter identified defendant as one of the perpetrators of the crime. There is conflicting testimony concerning whether the police showed the $4.03 check to the Porters before or after the showup. Defendant testified he did not commit the robbery, stating he was in the area looking for an apartment, incident to his impending marriage.
A preliminary hearing was subsequently held, where defendant, appearing without counsel, requested a continuance in order to have his retained counsel represent him. Defendant's mother indicated he was to be represented by attorney James Montgomery, whose appearance was not on file at the time. The court appointed Kenneth Murray's counsel, over defendant's objections, to represent him at the hearing and, following testimony of the victims and the police, the court made a finding of probable cause. Subsequently, an indictment was returned against the defendant by the Grand Jury.
At the commencement of the trial the defendant made motions to suppress a confession and the in-court identification as well as a motion to quash the indictment. All were denied.
Defendant first contends he was denied due process of law when the trial court disregarded his request to be represented by his own attorney at the preliminary hearing and further, that the trial court committed reversible error by appointing co-defendant Kenneth Murray's attorney, over defendant's objections, to represent him. *fn2
• 1 At the time of the preliminary hearing herein, February 25, 1971, there was, under Illinois law, no constitutional right to a preliminary hearing. (People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527, cert. den. 392 U.S. 910, 88 S.Ct. 2067, 20 L.Ed.2d 1368; People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276. Subsequently changed by the adoption of the 1970 Illinois Constitution, article I, section 7; effective date, July 1, 1971.) However, under the holding of Coleman v. Alabama (June 22, 1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, the preliminary hearing is deemed to be a "critical stage" of the criminal proceeding and, to that extent, a defendant is entitled to be represented by counsel. Moreover, the right to counsel guaranteed by the sixth and fourteenth amendments to the Federal Constitution, by section 8 of article I of the Illinois Constitution and by section 113-3 of the Code of Criminal Procedure, Ill. Rev. Stat. 1969, ch. 38, par. 113-3, includes the right to be represented by counsel of one's own choice. (People v. ...