APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 24, 1974.
The defendant-appellants were indicted for the offenses of robbery and aggravated battery and after a jury trial the defendants were found guilty of both crimes. The defendants were sentenced on the robbery charge and Boyd received a sentence of 3 to 6 years in the penitentiary and Richmond was sentenced to a term of from 5 to 15 years in the penitentiary. The defendants have raised four issues in this appeal. They contend that the trial court erred in refusing to grant their motions to suppress identification testimony; that the trial court placed a burden upon the defense of calling adverse witnesses as their own witnesses and thereby denied defendants the right to due process of law, counsel and confrontation; that the trial court unduly restricted the defense cross-examination of two witnesses; and that the evidence was insufficient to support the convictions. In addition defendant Boyd maintains that his sentence must be modified pursuant to the provisions of the Illinois Unified Code of Corrections.
The complaining witness, Robert Treskow, testified that on October 18, 1971, at approximately 11 P.M., he was walking east on Wilson Avenue in Chicago. He stated that as he crossed an alleyway and started up on the sidewalk two men grabbed him on each side and a third man grabbed him from behind. Mr. Treskow turned to his right and left and looked at the assailants who were on either side of him. He stated that the men dragged him into the alley and that he was hit below his left eye. Treskow was knocked to the ground and beaten and then he passed out. He stated that the two defendants and a third man whom he could not identify were the ones who beat and kicked him. Treskow did not know how long he was unconscious but when he regained consciousness he noticed his shirt was bloody and his pants had been ripped where he carried his wallet. He testified that his wallet was missing and that it contained approximately $4 and his identification cards which were contained in a plastic packet. He stated he left the alley and walked west on Wilson Avenue to a tavern, and asked someone to call the police.
A police officer arrived at the tavern and Treskow had a conversation with him. Treskow then got into the squad car and was taken to the Foster Avenue Police Station. When Treskow arrived at the police station, he was taken into a room with several desks. He stated he had a conversation with an officer-clerk and that this officer gave back his identification cards. Treskow testified that another policeman, Officer Freeburg, came into the room and took him into another room and asked Treskow if he could point out the people who had robbed and beaten him. Treskow stated that there were more than 10 people in the room but he was not sure of the exact number. He described the people in the room as civilians and dressed in either jackets or shirts and ties and sweaters. Treskow stated that he identified two men who were in the room as his assailants. These two men were the defendants. Treskow also made an in-court identification of the defendants as the men who robbed and beat him. He stated that at the time he identified the defendants at the police station they were not handcuffed. After the identification at the station, Treskow was taken to the emergency room at Weiss Memorial Hospital.
Upon cross-examination Treskow stated that he observed the assailants on either side of him for less than 5 minutes. He was then asked if he saw them for less than a minute and he responded that he looked to the left and to the right but for how long in each direction he did not know. He was asked if he was able to determine whether all three men who attacked him were Indians and he replied that he was able to ascertain that two of them were. However, Treskow did admit that on a previous occasion he had stated that all three men were Indians although he never saw the third man. Treskow was also questioned during cross-examination about the description of his assailants that he had given to the police. He stated he gave a description of three Indians but he was only able to identify two. One was wearing a light jacket and the other was wearing a blue jacket and Treskow also thought he had on blue denim pants. Treskow stated that he was not informed while at the police station how the police had recovered his identification cards nor was he told before he entered the room where he made the identification that the police had arrested two suspects.
On redirect examination Treskow stated that when he was first grabbed he was on a sidewalk next to the street. He was then asked what the lighting conditions were and he responded, "As I recall the North Shore Church is right across the street, a large church so the street side is fairly well lighted." However, Treskow did state it was dark in the alley.
The next witness called by the prosecution was Officer Lonnie Sides of the Chicago Police Department. He testified that on October 18, 1971, at approximately 11 P.M. he responded to a robbery in progress call. When Officer Sides arrived in the area of 1020 West Wilson, he observed Mr. Treskow. He stated that Treskow was bleeding severely from the face. Officer Sides took Treskow to his squad car, got a description of the assailants from Treskow and an account of what had happened. Sides then sent a flash message over his radio. During cross-examination Officer Sides stated that Treskow told him that one of his assailants was 22 to 30 years old and the other was between 30 and 40. According to Sides, Treskow also described the approximate height and weight of the robbers and told him that his assailants were Indians. Officer Sides also stated that two other policemen, Officers Hilden and Freeburg, arrived at the scene and told Sides to come over to their vehicle. Sides walked over to their squad car and stated that he observed the two defendants in the back seat. Officer Sides also stated that Mr. Treskow did not come over to the other squad car.
Officer Michael Hilden of the Chicago Police Department testified for the prosecution and stated that on October 18, 1971, at approximately 11 P.M., he and his partner, James Freeburg, were on patrol in a squad car. They were southbound on Sheridan Road and as they approached Lawrence Avenue they received a radio communication. Officer Hilden stated that as they approached Lawrence Avenue and Kenmore, he and his partner observed two men walking north on Kenmore. According to Officer Hilden, the two men were Indians and one was wearing a white coat and the other a blue jacket. The officers curbed their vehicle and called the two men over to the squad car. Officer Hilden made an in-court identification of the defendants as the men who were stopped. Officer Hilden testified that it was approximately 2 minutes after the radio communication was received that he observed the two men. He also stated that the location where he observed the defendants was approximately two blocks from the scene of the robbery. Officer Hilden testified that as the two men walked towards the squad car, he observed the defendant Boyd drop a packet out of his rear pocket. According to Hilden, Officer Freeburg picked up the packet and then the two men were placed in the rear of the squad car. In the squad car Officer Hilden examined the packet and observed that the identification cards in it bore the name of Robert Treskow. Officer Hilden stated that they then proceeded to the intersection of Wilson and Kenmore where Officer Sides was located. Officer Hilden had a conversation with Officer Sides and then the defendants were taken to the 20th District Police Station.
The next witness to testify on behalf of the prosecution was Officer James Freeburg. His testimony was substantially similar to that of Officer Hilden in regards to encountering the defendants on the evening in question. Officer Freeburg also stated that he observed the defendant Boyd drop a packet from his rear pocket as he walked toward the squad car. Officer Freeburg further testified that when they arrived at the 20th District Police Station, the two defendants were placed in a review room along with approximately a dozen other people. According to Freeburg, approximately 3 or 4 minutes after he and Officer Hilden and the defendants arrived Officer Sides brought Mr. Treskow into the station. Officer Freeburg stated that Treskow was put in another room that adjoined the review room. Officer Freeburg left the review room and got Mr. Treskow and brought him into the review room. Officer Freeburg stated that he asked Treskow if he could identify his assailants and that Treskow identified the two defendants.
Upon cross-examination Officer Freeburg stated that the description he and Officer Hilden received over the radio was of three male Indians. He also stated one Indian was described as wearing a white coat and the other as wearing a blue jacket. However, Officer Freeburg could not recall if the radio broadcast also included a description of the assailants' ages, heights and weights and color of hair. Officer Freeburg also stated that the two defendants were the only Indians in the review room at the time Treskow identified them.
The defendant, Melvin Boyd, testified in his own behalf. He denied committing the crimes with which he was charged. He also denied ever having Mr. Treskow's identification packet in his possession and stated he did not drop it when he was stopped by the police. Boyd testified that after he and Richmond were placed in the squad car they were taken to an alley at Lawrence and Wilson. He stated that Officer Sides brought Mr. Treskow over to the squad car and asked Treskow if these were the men. According to Boyd, Treskow stated, "No, sir, them ain't the two guys, the guy had a white shirt on."
The first issue raised by the defendants is that the trial court erred in not granting their pre-trial motion to suppress the identification testimony of the complainant, Robert Treskow. The defendants contend that the pre-trial identification procedure was unnecessarily suggestive and that the State failed to prove by clear and convincing evidence that an adequate independent origin existed for the identification. While we agree that the pre-trial identification procedure utilized in the case at bar was unnecessarily suggestive, we are of the opinion that an adequate independent origin existed for the identification and therefore, the trial court did not err in denying the motion to suppress the identification testimony of Robert Treskow.
At the hearing on the motion to suppress, Mr. Treskow testified that Officer Freeburg led him into a room that contained approximately 15 to 20 people and asked if he could identify the men who had robbed and beaten him. Treskow could not recall if any uniformed police officers were in the room. He identified the defendants as his assailants and stated that the defendant Boyd was walking around the room trying to get a cigarette. Treskow stated that Boyd approached him and came within 5 or 6 feet and then turned around and went back. Treskow testified that Boyd had a light three-quarter length jacket on and Richmond was wearing a blue jacket and denim trousers. According to Treskow, Richmond was seated in the room and neither man was handcuffed. Treskow denied that any police officer told him that they had arrested someone that they would like him to view.
Officer Hilden also testified at the hearing on the motion to suppress and stated that defendants were placed in a review room and that approximately 10 or 12 people were in the room. Officer Hilden stated there were about four uniformed policemen in the room and that Officer Freeburg brought in Treskow and that Treskow identified the defendants immediately.
Officer Freeburg testified that there were approximately a dozen people in the review room and that four or five of them were uniformed policemen. He stated that only two of the people in the review room were Indians and that they were the defendants. Officer Freeburg was asked if he told Treskow that there were suspects in custody and responded, "I told him there were two people in the room." Freeburg also testified that Treskow identified both defendants as his assailants.
• 1 The law concerning the admissibility of identification testimony has been well established and it was succinctly set forth in People v. Tuttle, 3 Ill. App.3d 326, 330, 278 N.E.2d 458, 461 (1972). The court there stated:
"In order to suppress an in-court identification on the ground of improper pre-trial identification procedures, a defendant bears the burden of proving two facts. First, he must establish that the pre-trial identification procedures were so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States, 390 U.S. 377, 384; People v. Holiday, 47 Ill.2d 300, 307-308.) Second, to the extent that suggestive procedures are established, they must be shown to have been `unnecessary' under the totality of the circumstances. (Stovall v. Denno, 388 U.S. 293, 302; People v Lee, 44 Ill.2d 161, 169.) However, even if a defendant successfully establishes the above two elements, an in-court identification may nonetheless be admissible if the State shows `by clear and convincing evidence, that such in-court identification had an independent origin, arising from other uninfluenced observation of the defendant.' People v. McMath, 104 Ill. App.2d 302, 313; affirmed, 45 Ill.2d 33; see also People v. Fox, 48 Ill.2d 239, 245."
We are of the opinion that the pre-trial identification procedure utilized in the case at bar was suggestive and did present a substantial likelihood of irreparable misidentification.
• 2 The defendants were placed in a review room with approximately ten other people. Four or five of the individuals in the room were uniformed policemen. The defendants were the only Indians in the room and all the other people were physically dissimilar. The only people in the room wearing clothing similar to that described by the complaining witness were the defendants. In addition the statement by Officer Freeburg that there were two people in the room is also a suggestive factor that must be considered. Martinez v. Turner, 461 F.2d 261 (10th cir. 1972).
In determining whether a pre-trial identification procedure is unnecessarily suggestive, the totality of the circumstances surrounding the confrontation must be considered. (Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967 (1967).) When this is done in the instant case, the inevitable conclusion is that no feasible choices for identification were presented to the complaining witness. The case at bar is similar to People v. Morris, 131 Ill. App.2d 443, 266 N.E.2d 444 (1970), and Martinez, supra. As in those cases the defendants in this case stood out suggestively and prominently in the pre-trial confrontation. The pre-trial identification procedure utilized in ...