APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Lawrence Coleman was found guilty of robbery by a jury and was sentenced to a term of four to ten years in the penitentiary. On appeal defendant urges reversal of the conviction on the grounds that the evidence was insufficient to support the conviction; that the prosecutor improperly argued facts not in evidence; and that he was denied a fair trial due to the introduction of prejudicial evidence. Alternatively, defendant contends, and the State concurs, that the sentence should be modified to conform to the applicable provisions of the Unified Code of Corrections. Resolution of defendant's first contention requires a summary of the evidence presented at trial.
James Terry, the complaining witness, and his companions on the night of August 29, 1970, Delcine Bell and Mary Harris, testified for the State. The three had met at a lounge where Mr. Terry, who had consumed a "couple of beers," had been shooting pool. At approximately 2:15 A.M., they took a cab to Madison and Loomis and proceeded to walk down Madison Street when three men approached and said something to Ms. Bell and Ms. Harris. The complainant, who had momentarily stopped to light his pipe, caught up with the group and asked the three men to leave the girls alone. At this point the three turned their attention to James Terry, grabbed him and forced him across the street where one of the three, later identified as defendant, pulled out a gun and robbed the victim of approximately $70. During this time, Ms. Bell and Ms. Harris flagged a second cab and told the driver to pull up to the four men who then broke and ran. Immediately thereafter a police car approached, was hailed by Terry, pursued the fleeing men, and apprehended Edgar Shorter, one of the three robbers.
The women, James Terry, and Edgar Shorter were then taken to the police station where complainant and Ms. Bell gave descriptions of defendant. The victim stated that Coleman had a red streak in his hair; Ms. Bell indicated that two of the assailants had red coloring in their hair.
On October 2, 1970, James Terry saw defendant and the third robber at the intersection of Madison and Ogden. Upon seeing the complainant, they turned and walked away. The police were called, but no apprehension resulted. Approximately a week later, the victim identified Lawrence Coleman from a group of pictures shown to him by the police. On October 25, 1970, two officers accompanied Terry to the trauma ward of the Cook County hospital where Terry identified Coleman from a group of fifteen male patients. At that time, the victim "didn't think" that the accused then had a red streak in his hair.
Both Ms. Bell and Ms. Harris recalled at trial that two of the men had red streaks in their hair. Each witness identified defendant as one of the perpetrators of the crime but testified that they had not seen him from the night of the robbery until the day before trial.
Police officers Richard Topel, Robert Elam, and Clifford Berti testified for the State. Officer Topel had been in the police car hailed by Terry immediately after the robbery. He testified that Mr. Terry had identified his three assailants on the street, but that only Shorter had been apprehended. He also corroborated previous testimony that the area was illuminated by overhead mercury vapor street lights and by light emanating from a commercial establishment. The officer further testified that he detected a "weak" odor of alcohol on the victim's breath, but that Mr. Terry was "definitely sober."
Officers Elam and Berti had interviewed Edgar Shorter on the morning of the incident. Based on that conversation, they had attempted to obtain records and photographs of a "James Johnson." Their search had been unsuccessful, but subsequent investigation revealed that Lawrence Coleman had previously used the alias "James Johnson." The officers had then obtained photographs of Lawrence Coleman which were shown to the victim, who had then identified defendant. The officers had held another conversation with Shorter; based on this conversation, they had visited the Cook County Hospital and had ascertained that Lawrence Coleman was a patient. The victim subsequently had been brought to the hospital, where he had identified defendant who then had, according to the officers, a red streak in his hair.
Edgar Shorter, called by the defense, testified that he, one "Willie Smith," and one "James Johnson" had robbed James Terry near Madison and Throop Streets on August 30, 1970. He had been acquainted with Lawrence Coleman for several years, and had known him to use the alias James Johnson. However, Lawrence Coleman was not the "James Johnson" with whom he had committed the robbery. Shorter further testified that he had been the only one with a red streak in his hair; that he had never known Lawrence Coleman to have a red streak in his hair; and that he had not told the police to go to the Cook County Hospital.
Elizabeth Coleman, defendant's mother, testified that defendant lived at home; that on the night of August 29, 1970, her son and his girl friend were at home with another couple, celebrating defendant's birthday; and that her son had never had a red streak in his hair.
On rebuttal, Officer Berti testified that Mrs. Coleman had told him that Lawrence did not live at home and that defendant's correct birth date was August 24.
Defendant initially contends that the evidence was insufficient to support the conviction in that it rested entirely upon identifications which were doubtful, vague and uncertain. Defendant cites People v. Kidd, 410 Ill. 271, 279, 102 N.E.2d 141, where it is said:
"[I]dentification of one person by another who had never seen him before is an opinion or conclusion of the identifying witness, and the attendant circumstances, together with the probability or improbability of affording an opportunity for a definite identification, must be considered in weighing the evidence of one stranger by another."
Under this standard, defendant submits the following circumstances as reflective of an inconclusive identification: that Ms. Bell's testimony tended to indicate that the lighting conditions surrounding the incident were poor; that subsequent to the night in question neither Ms. Bell nor Ms. Harris had had an opportunity to see or identify defendant until the time of trial, which was almost a year later; that a discrepancy existed between the testimony of Mr. Terry and Officer Topel relating to the complainant's description of defendant prior to his apprehension; and finally, that none of the identifying witnesses had referred to any distinguishing facial characteristics of the accused.
The State urges that complainant's testimony by itself sufficiently supports the conviction, and that the absence of described facial characteristics is not controlling. We are referred to People v. Miller, 30 Ill.2d 110, 113, 195 N.E.2d 694, wherein the court stated:
"Precise accuracy in describing facial characteristics is unnecessary where an identification is positive. * * * We have often held that the testimony of one witness alone, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. [Citations.]"
In support of its position, the State notes that the victim had ample opportunity to observe defendant at close range. The entire incident from the time the three men walked up to the girls to the time they fled occurred in the span of seven or eight minutes. During that time complainant spoke with defendant several times; defendant dragged complainant across the street and upon reaching the other side, pulled out a gun and said "Put your hands up." Not only did the complainant have sufficient time ...