APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE MODIFIED OPINION OF THE COURT:
The defendant Eddie L. Franklin was indicted for the offenses of murder and attempted armed robbery. (Ill. Rev. Stat. 1969, ch. 38, par. 9-1; Ill. Rev. Stat. 1969, ch. 38, par. 8-4.) After a jury trial he was found not guilty of the offense of murder, but guilty of the offense of attempted armed robbery, and sentenced on that conviction to a term of 9 to 14 years in the penitentiary.
In this appeal the defendant presents a number of issues for our consideration. First, whether the trial court erred in failing to suppress the defendant's warrantless arrest, which resulted in the seizure of certain physical evidence and the defendant's subsequent identification by certain witnesses. Second, whether the indictment charging the offense of attempted armed robbery was fatally defective as it failed to allege an essential element of the offense, and in the same vein, whether the State failed to prove a material allegation of the indictment. Third, whether the trial court erred in refusing to suppress a certain lineup which resulted in the defendant's identification and subsequent in-court identification. Fourth, whether the trial court erred in refusing to give an offered instruction concerning the weight to be given the testimony of a narcotics addict. Finally, whether his sentence must be reduced to conform to the requirements of the Illinois Unified Code of Corrections.
Judgment vacated and remanded.
The relevant facts surrounding this case are as follows. On December 12, 1969, four men attempted to rob the Gateway National Bank of Chicago. During the attempted robbery, a bank guard, Richard Mix, was critically wounded by one of the offenders and died 4 days later. On December 22, 1969, two Chicago Police officers assigned to investigate the Gateway robbery arrested two men, Lee Bates and Gerald Brooks, who were eventually indicted along with Franklin for the murder and attempted armed robbery. During the questioning of these suspects both admitted their participation in the crime, and also implicated Franklin as one of the robbers.
Later that day, at approximately noon, the officers, investigators Moore and Craig, along with other officers, proceeded to Franklin's apartment and there arrested him. While making the arrest the officers also seized certain items from the defendant's apartment, among which were a pair of men's pants, variously described as burgundy, lavender or "hot pink", a three-quarter length camel hair coat with a fur collar, an afro-style wig and a black cap. These items were seized because they seemed to fit the description of the clothing worn by one of the Gateway gunmen given by witnesses to the attempted robbery. These items of clothing were not worn by the defendant at the time of his arrest, but, the officers testified, were in plain view in various areas of the apartment when defendant was taken into custody.
Still later that day, December 22, the defendant was placed in a lineup at a Chicago Police Station at which time he was identified by two bank employees as a participant in the December 12 crimes. Prior to the lineup the defendant was instructed to change from the clothes he wore when arrested into the pants, coat and cap that were seized in the apartment. After viewing the lineup one witness, Alexia Byrd Jackson, positively identified the defendant and another, Gloria Clifford Jones, told police that the defendant "was the man," although his hair, among other things was different than on December 12. The defendant was then instructed to put on the seized wig, whereupon witness Jones again viewed him and again identified him as one of the offenders. None of the other witnesses who viewed the lineup could identify the defendant.
Subsequently, the defendant filed motions to suppress his illegal arrest and to suppress any lineup or in-court identification of him by the State's witnesses. After an extensive hearing on the motions the trial judge denied defendant's motion to suppress his arrest finding that the arrest was based on a sufficient showing of probable cause and the items seized at the time of arrest were in plain view. In regard to the December 22 lineup the trial judge found that although the lineup "was to an extent suggestive," witness Jones identified the facial features of the defendant and was not influenced by defendant's clothing and therefore denied the motion as to her. As to witness Jackson the trial judge found that in her testimony her concern seemed "to be centered more on the clothing that was worn" and therefore granted the motion to suppress her testimony.
At trial Gloria Clifford Jones testified that she was an employee of the bank and was working as a teller on the morning of December 12, 1969. She stated that while working that morning she heard a scuffle and looked up to see a man fighting with the bank guard, Richard Mix. She saw the man aim a gun at Mix's head and shoot. The man then turned and pointed the gun at her and she ducked behind the counter and remained there until after he had left. She described the man who shot Mix as a Negro with a goatee, mustache, and an afro hair style. He was wearing a beige coat with a fur collar and "hot pink" pants. She further identified the defendant as the man who shot Mix and the pants and coat seized at the time of his arrest as exactly like those worn by the defendant on that morning. Further, she stated that she had seen the defendant three times near the bank 2 days before December 12. She remembered him because he had tried to "flirt" with her on these occasions and he wore the same coat and pants as on the morning of the shooting. She also testified that on December 22, 1969, she viewed a lineup at which time she identified the defendant. At that time he was wearing the same coat, pants and wig that she had identified previously.
Alexia Byrd Jackson testified that she also was an employee of the bank on December 12, 1969. On that morning she saw four men enter the bank. One of the men had a "natural" hairdo, a mustache and goatee, and was wearing a tan coat with a fur collar, "hot pink" pants and a black cap. After these men entered, she heard a shot and fell to the floor. Although the trial judge had previously allowed a motion to suppress her identification testimony, she was allowed to testify that she viewed a lineup on December 22, 1969, at which time she saw the number one man in the lineup wearing a brown coat with a fur collar and "hot pink" pants. She also identified a picture as accurately representing the lineup that she had seen. After this testimony the defendant moved for a mistrial, which motion was denied by the trial court.
Marcia Kazwara testified that she was the vault manager at the Gateway Bank on December 12. She heard a shot and looked up to see Mix fall backwards and a man in a beige coat with a dark collar. Another man with a gun came up to her and ordered her to open the vault. She told the gunman that she could not open the vault because she did not have the combination, whereupon the gunman turned and left the building.
Gerald Brooks testified that he was one of the four men who attempted to rob the Gateway Bank on the morning of December 12, 1969. He testified that the defendant was also one of the four men and that on that morning the defendant was wearing a camel coat with a mink collar and burgundy pants. Brooks stated that he was the man who ordered Marcia Kazwara to open the safe, and the defendant's assignment had been to disarm the guard. He further stated that after they left the bank the defendant told him that he had to shoot Mix because the guard had tried to pull his gun. Brooks admitted that he had been a heroin addict for 5 years prior to December 12, 1969, and that at the time of trial he was receiving methadone at Cook County Jail to support his habit.
Other witnesses testified as to the events at the bank on December 12 and to the circumstances surrounding the defendant's arrest. In defense the defendant testified that he did not shoot Mix or participate in the attempted robbery on December 12. He further denied that he had been near the bank prior to December 12.
At the close of all the evidence the defendant offered an instruction on the credibility of narcotics addicts which was refused by the trial judge. The jury returned verdicts finding defendant not guilty of murder and guilty of attempted armed robbery whereupon he was sentenced as aforementioned.
The first issue presented for review is whether the defendant's arrest on the morning of December 22, was lawful. The defendant argues that because his arrest was effectuated without a warrant, when the police had the opportunity to secure a warrant, his arrest was unlawful and the clothing seized in his apartment and his later identification by witnesses should have been suppressed as they were a consequence of the unlawful arrest. The defendant does not argue that the police either lacked probable cause to make the arrest or exceeded the scope of a search incident to arrest, but merely that the lack of a warrant when they had time to secure one, voided the arrest. We cannot agree with defendant's contention.
• 1 Section 107-2(c) of the Code of Criminal Procedure of 1963 provides: "A peace officer may arrest a person when: (c) He has reasonable grounds to believe that the person is committing or has committed an offense." (Ill. Rev. Stat. 1969, ch. 38, par. 107-2(c).) Further our supreme court, passing upon the ...