APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendants, Merrill Scott and Henry Crutcher, were indicted for armed robbery, theft, and unlawful restraint. After a joint trial in the circuit court of Cook County the jury found defendants guilty of all three offenses. Scott was sentenced to 10 to 24 years in the penitentiary for armed robbery and 1 to 2 years for unlawful restraint, the two sentences to run consecutively. Crutcher was sentenced to 8 to 16 years for armed robbery and 1 to 2 years for unlawful restraint, the two sentences to run consecutively. Defendants have appealed.
Both defendants contend that they were not proved guilty beyond a reasonable doubt, that the trial court improperly admitted hearsay identification testimony into evidence, and that their sentences were excessive. In addition, Scott contends that the lineup at which both he and Crutcher were identified was unduly suggestive.
The facts follow. The complaining witness, Steven James, testified at trial that on April 5, 1972, at 9:30 P.M., he drove his new automobile into the alley behind his home. As he pulled into the alley he saw three men walking together toward the front of his car. James unlocked the door of his garage, which faced the alley, and backed his car into it. As he was sitting in his car with the garage door open, he observed the three men walk by. When they had passed James got out of his car and locked the car door. Immediately thereafter he remembered that he had locked his cigarettes in the car. While he was looking for the cigarettes, one of the three men he had seen in the alley, identified as defendant Scott, placed the barrel of a .38-caliber revolver to his left side. Scott searched him and removed his billfold which contained $41. Two other men entered the garage. One of them, whom James identified as Crutcher, placed a revolver to his head. James was told to lie face down on the garage floor. He remained on the floor for 4 to 5 minutes, during which time he was again searched. His watch, keys, gloves, and cigarettes were taken.
Defendant then put James into the trunk of his car and drove away. He remained in the trunk for approximately 2 hours but was unable to ascertain where the men were driving. While he was in the trunk he heard one of the men say that he was going to kill him. He heard another man object. When the trunk was finally opened, he saw three men, two of whom he identified as defendants. They pulled him out of the trunk and forced him to walk approximately 75 feet in a bent over position until they reached an abandoned building. Once inside the building Scott bound James with a belt and took the coat that he was wearing. After his assailants had left, James freed himself, signaled a squad car to stop, and reported the incident.
On cross-examination, James testified that he gave a description of his car to the first police officer he encountered but did not give a description of his assailants until another group of police officers arrived at the scene. James could not remember the clothing that the men were wearing nor could he give any description of the third man who was involved. Officer Guisinger of the Chicago Police Department testified that he arrived at the scene at about 11:30 P.M. or 11:45 P.M. that night and interviewed James for over an hour. According to the police officer James described one of the men as a male Negro, between 18 and 23 years old, about 5'10" tall, 150 lbs., black or brown hair, brown eyes, and medium complexion and the other man as a male Negro, 5'8" tall, 150 lbs., black hair, brown eyes, and medium complexion.
The testimony further showed that there were no lights in the garage, but that a lamp in the alley near the garage provided illumination. At various times during the episode defendants told James not to look at them. However, James maintained that he looked at them every chance he had. The testimony further showed that James' driver's license restricted him by requiring him to wear corrective lenses while driving. At the time of the robbery and thereafter he was not wearing his glasses. He explained that he only needed his glasses for reading and that he could drive his car without wearing them.
Defendants' arrest occurred as a result of the description of James' new car. At 4 P.M. on April 6, 1972, the day after the incident, Officer Cronin of the Chicago Police Department observed four men in a car proceeding suspiciously, very slowly, westbound on Fillmore Avenue, as he was proceeding eastbound in a squad car. Officer Cronin did not realize that the car had been stolen until he passed it and noticed the license plate number to which he had been alerted. He chased the car but momentarily lost sight of it. He also radioed for assistance and gave a description of the two men he observed in the front seat of the car to other police officers. He testified that he described the clothing that the men were wearing. He described one as wearing a dark black fur coat and the other as wearing a green army type jacket and a beard. Approximately 5 minutes later, Officers Bolton and Anderson returned in their squad car with two men in the back seat to the location at which the stolen car had been abandoned and Officer Cronin identified the two men by their faces as the men he had observed earlier. Likewise, at trial, he identified defendants as the men he had observed in the front seat of the stolen car. Officer Anderson apprehended defendants near the location where Officer Cronin first spotted them. He recognized them walking together on the street by the description which Officer Cronin had given.
At a lineup which the police conducted on April 7, 1972 James selected both defendants from a group of six men and positively identified them as two of his assailants. Officer Cronin and Assistant State's Attorney Fagan testified, in addition, that James had selected defendants at the lineup. As the men were leaving the lineup area, James noticed that Crutcher was wearing the coat that James wore during the robbery and abduction. However, James testified that he selected Crutcher at the lineup by his facial features. James further testified that before the lineup the police telephoned him and told him that they had someone in custody. They did not tell him how many suspects they intended to place in the lineup. Officer Cronin testified that he recognized defendants at the lineup as the men he had observed in the front seat of the stolen car.
The prosecutor introduced into evidence James' coat which was allegedly taken and later recovered from Crutcher. Officer Guisinger testified that although his report of the incident did not indicate that a coat had been taken, it did show that the officer observed that the complaining witness was not wearing a coat at the time. Aside from the coat and automobile, the police did not recover any of the other stolen items.
The defense did not present any evidence.
Scott contends that the lineup at which he and Crutcher were identified was unduly suggestive and that the trial court committed reversible error when it denied Scott's pre-trial motion to suppress all identification testimony. Scott's motion alleged that the manner in which the police conducted the lineup was a denial of due process. In particular, Scott argues that the lineup was suggestive in that he stood apart from the others in terms of age, height, and the fact that he was the only person who had a full beard.
The lineup included six male Negro subjects, two of whom were the defendants. Scott was in position number 1 and Crutcher was in position number 4. Scott was age 28 at the time; Crutcher was 19. The other men were aged 18, 20, 19, and 18 respectively. At the hearing on the motion to suppress, a police officer who witnessed the lineup testified from a photograph of the lineup that two subjects were approximately the same height as Scott. We were unable to examine the photograph itself, which was later introduced into evidence at trial, as it was not included in the record on appeal. We infer from the record, however, that Scott was the tallest member of the lineup. The police witness further testified that the police tried to find someone else in the lockup who had a beard but were unsuccessful. At the conclusion ...