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People v. Ortiz

AUGUST 15, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. ALFONSE F. WELLS, Judge, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT: Defendant was charged with robbery. After a bench trial, he was found guilty of that charge and sentenced to a term of 2 to 10 years. During the pendency of his appeal to this court, he filed a post-conviction petition in the trial court, which was dismissed without an evidentiary hearing. Defendant has also appealed that order of dismissal, and we have granted his motion to consolidate the two appeals.

• 1 Defendant's brief makes no distinction between the direct appeal from his conviction and the appeal from the order dismissing his post-conviction petition. As we stated in People v. McCarroll (1973), 10 Ill. App.3d 249, 294 N.E.2d 52, issues properly relating to one cannot be argued interchangeably with issues germane to the other. Thus we will consider the appeals separately.

On direct appeal, defendant argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt; that he was denied his constitutional right to effective assistance of counsel; that the trial court erred in permitting a State's witness to testify in rebuttal; and that the trial court improperly considered irrelevant matters in determining defendant's sentence.

Mrs. Ruth Long testified that at approximately 7 A.M. on April 5, 1970, she was walking alone on her way to work. It was a bright morning and visibility was very good. As she approached 530 Arlington Place in the city of Chicago, she noticed a man walk out of a gangway about 10 to 15 feet ahead of her. She continued to walk as the man came to the sidewalk, turned, and began walking in her direction. As they were about to pass each other, the man grabbed her and clamped a hand over her mouth. They struggled face to face as the assailant attempted to take her purse. After Mrs. Long had managed to scream, her attacker knocked her to the ground. Her attempts to regain her feet were met by repeated kicks to her head and body. After some 60 to 90 seconds had elapsed, the attacker succeeded in snatching her purse and running away. The victim crawled to her nearby home and instructed her husband to call the police.

A couple of days after the robbery, Mrs. Long scanned several books of photographs at the police station, but did not see her assailant. On April 10 she returned to the station to look at more photos, at which time she selected defendant's photograph. Although she testified at trial that she was positive in her selection at that time, she stated that she asked the police at the second viewing to supply her with a more recent photograph of the same man. Sometime later the police gave her 15 pictures of both bearded and nonbearded men to view. Although he was clean shaven at the time of the robbery, she selected defendant's photograph from the group of bearded subjects.

On April 28 Mrs. Long viewed a five-man lineup at the police station, and again picked out defendant. She also identified defendant at trial. She testified that on the day of the attack defendant wore a brown jacket and blue or brown trousers, was hatless, did not wear eyeglasses, and bore a scar near one of his eyebrows.

The investigating police officer testified that Mrs. Long had viewed approximately 500 mugshots before she selected defendant's photograph. Nothing was done to influence the victim's several pretrial identifications of defendant.

Defendant, testifying in his own behalf, denied robbing Mrs. Long. He stated that he had been asleep at his parents' home from 1 or 2 A.M. to 10 or 11 A.M. on the day of the crime. His alibi was corroborated by his father, brother, cousin, and girl friend. Defendant denied ever having given a different version of his whereabouts at the time of the robbery.

In rebuttal, the investigating police officer testified that he asked defendant at the time of arrest where he had been on the night preceding the robbery. Over defendant's objection, the officer testified that defendant had said that he had attended a party at a friend's home until 4:30 or 5 A.M., and from there had gone to his girl friend's apartment. The girl friend's apartment was located two blocks from the scene of the robbery.

Defendant's initial contention on direct appeal is that he was not proved guilty beyond a reasonable doubt. This argument is grounded in his assertion that his identification by the victim was weak, tainted, and insufficient to surmount defendant's corroborated alibi.

The identification testimony of a single witness is sufficient to sustain a verdict of guilty if the witness is positive, credible, and had an opportunity to observe the accused. (People v. Bennett (1973), 9 Ill. App.3d 1021, 293 N.E.2d 687.) Mrs. Long was positive in her identification of defendant as the robber, and her opportunity to observe her assailant was excellent. The day was bright, and the visibility was very good. Her view was unobstructed as the man walked out of the gangway and then towards her. Once the man grabbed her, she was looking at his face from a very short distance away. Indeed, at one point, the robber lay directly on top of Mrs. Long, who "was looking at him all the time."

• 2, 3 While her description of defendant was not detailed, it was adequate. The proper test to be applied is not whether the witness gave a full description of the features and attire of the defendant at the time of the crime but whether the witness was close enough to defendant for a sufficient length of time under adequate lighting conditions to be able to make a positive identification. (People v. Catlett (1971), 48 Ill.2d 56, 268 N.E.2d 378.) Moreover, the trier of fact is under no obligation to accept an accused's corroborated alibi over the positive identification of the complaining witness, where the latter had ample opportunity to observe the defendant. People v. Catlett.

• 4 Under his reasonable doubt argument, defendant also contends that the pre-trial photographic identification of him made by the victim was so vague and weak as to establish a grave doubt as to its correctness. We do not agree. Mrs. Long selected defendant's photograph out of a group of several hundred only a few days after the robbery. Although she did request to see a later photograph of the same man, she testified that she had been positive in her initial photographic selection. She subsequently selected defendant's bearded photograph out of a group of 15 bearded and non-bearded pictures. The photographic identification was not weak or vague, and the procedures employed were proper.

Still arguing that he was not proved guilty beyond a reasonable doubt, defendant next contends that the procedures used at the lineup were improper. He maintains that they were so suggestive as to create a reasonable doubt of ...

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