APPEAL from the Circuit Court of Du Page County; the Hon.
STANLEY THOMAS, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant was charged with attempt murder and burglary, was tried by a jury, and was found not guilty of attempt murder but guilty of burglary. He was sentenced by the court to 20-35 years in the Illinois State Penitentiary, the sentence to be served consecutively with a prior sentence of 20-35 years for a similar offense.
The instant offense occurred on December 1, 1969. Defendant placed a wastebasket by a window and entered the apartment of the complaining witness. When she was awakened he was straddling her in her bed. She testified that the light from a flood lamp came through the sheer curtains and she was able to see him well. She fought him off, chased him down the hall, and as he was opening the front door to leave, she again saw his face in good light at arm's length. He then fled.
Defendant had previously been convicted of a most similar offense which occurred on December 3, 1969, involving the entrance into an apartment of another woman where a knife was used and the complaining witness cut. His conviction was affirmed by this court, People v. McDonald (1972), 4 Ill. App.3d 62, 278 N.E.2d 91.
The complaining witness in the instant case viewed 100 pictures and 4 days after the occurrence viewed 10 pictures at the Wheaton police station in which she selected 2 photographs as suspects, one of which was the defendant. She also constructed an "identi-kit" composite picture of her assailant shortly after the occurrence. On December 14, 1969, the defendant drove to the Wheaton police station where he made a complaint that his car was being followed by an unknown vehicle. The car following the defendant was, in fact, an unmarked car of the Wheaton police department. The complaining witness was called to the police station and as she walked by the room where the defendant was with two officers in plain clothes, she immediately identified him as her assailant. The next day a lineup was had in the Du Page County jail and the defendant's counsel was present. Defendant's counsel made various suggestions as to how the lineup should be conducted, which were followed. The complaining witness identified the defendant in the group of five men in the lineup. The record indicates defense counsel did not see the identification number of the defendant written down by the witness at the time of the lineup. After the lineup was over defense counsel requested permission to be present at the interrogation of the complaining witness and this was denied.
Prior to trial, defense counsel made a motion to suppress the identification testimony of all witnesses at the lineup held on December 15, 1969. The record is not clear but it is obvious that the trial judge did in fact suppress the lineup identification. Immediately prior to trial the order suppressing the lineup identification was vacated by another trial judge and testimony relative to the lineup was admitted at the trial.
The defendant has raised six issues: (1) that the trial judge erred in vacating the earlier order suppressing the line-up identification; (2) that the refusal by the State to permit the presence of counsel at the identification portion of the lineup deprived him of his constitutional rights with relation to the lineup procedures; (3) that the State failed to prove by clear and convincing evidence that the in-court identification of the defendant had an independent origin arising from observations of the defendant uninfluenced by tainted pretrial photographic identification and show-up; (4) that the trial court allowed testimony of another witness of the similar crime committed 72 hours later on December 3, 1969, several miles away. Defendant contends that this evidence failed to establish a common design, motive, intent or knowledge; (5) that the only evidence other than the identification by the complaining witness is circumstantial evidence of no probative value; and (6) that defendant's sentence should be reduced to conform with the applicable provisions of the Unified Code of Corrections, the case not having reached final adjudication.
• 1, 2 The first three issues raised by the defendant are closely allied. The contention of the defendant that the order of the court suppressing the lineup identification previously entered prior to trial was an appealable order and should have been appealed is correct. He has cited People v. Taylor (1972), 50 Ill.2d 136, 277 N.E.2d 878, where the supreme court held substantially in accordance with defendant's contention, citing People v. Quintana (1967), 36 Ill.2d 369, 223 N.E.2d 161, and People ex rel. MacMillian v. Napoli (1966), 35 Ill.2d 80, 219 N.E.2d 489. Under the rationale of these cases the supreme court in Taylor held that the order could not be reviewed by another trial judge. While the above cases deal with motions made at preliminary hearings, we find that the same principle applies under Supreme Court Rule 604 which is not limited to preliminary hearings but provides
"In criminal cases the State may appeal only from an order of judgment * * * suppressing evidence." Ill. Rev. Stat. 1973, ch. 110A, par. 604.
• 3 The third contention of the defendant in this connection is that he is entitled to counsel at the lineup after he has been charged with a crime and the matter has become an adversary proceedings. The complaint against the defendant was signed on December 14, 1969, and the lineup was held on December 15, 1969. There is no question but that after the defendant is charged either by information, complaint or indictment, it is an adversary proceeding and he is so entitled to counsel. The Illinois Supreme Court so held in People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161, wherein the court considered the United States Supreme Court decision, Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, and in so doing held that a defendant was entitled to counsel at a line-up where the proceedings had become adversary in nature either by a formal complaint being filed or by an information being filed, as well as by indictment. Counsel for defendant has cited People v. Dismuke (1972), 3 Ill. App.3d 553, 278 N.E.2d 152, where we held that no distinction existed between pre- and post-indictment lineups and the right to counsel. This case was written prior to Kirby, supra, and Burbank, supra, which indirectly overruled this court by holding that right to counsel did not, in fact, exist in preindictment, precomplaint, or preinformation situations.
The record herein discloses that defense counsel was not present when the complaining witness identified the defendant immediately after the lineup. The police officer present at the lineup testified that the complaining witness wrote down the number 1, which was defendant's number in the lineup, after she viewed the five men who were in the lineup. The defendant has cited two cases in which opposing views in this regard have been set forth. In the California case of People v. Williams (1971), 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942, in a four-to-three decision, the California Supreme court held that it would be meaningless to have defense counsel present at the lineup and yet not have him present at the time of the identification. We agree with this decision. However, in United States v. Cunningham (4th Cir. 1970), 423 F.2d 1269, one of several witnesses misidentified the defendant, an altercation between counsel took place, defense counsel was ejected from the interrogation, and the complaining witness Byrd, who unequivocally identified the defendant at trial, picked the defendant from the lineup in the absence of defendant's counsel. The court found that this was not error and specifically held that defense counsel's presence was not required in the interrogation of the complaining witness after the lineup had concluded, holding that United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, and Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, S.Ct. 1951, did not apply to subsequent interrogation. It would appear that Cunningham and Williams may well be in conflict. In any event, this court is of the definite opinion that Wade and Gilbert do require that counsel for the defendant not only be present at the lineup but at the identification, if any, of the defendant by the complaining witness.
• 4, 5 In summation of these contentions of the defendant, we find first that the trial court should not have reversed the order of suppression of identification in the lineup. The proper procedure to have been taken by the State for review of the order suppressing the lineup identification was by appeal under the provisions of Supreme Court Rule 604(A)(1) supra. We further find that defense counsel should have been allowed to be present, if he were not, at the identification of the accused. We specifically find, however, that subsequent interrogation of the complaining witness after the identification does not carry with it the right of defense counsel to be present. See Cunningham and Williams, supra.
In Dismuke, supra, with relation to the right of defendant to have counsel present at the line-up, we stated the following:
"Under the circumstances, even if Wade and Gilbert are assumed applicable to this pre-indictment line-up, we do not find that there is a reasonable possibility that the evidence complained of might have contributed to the conviction. We, therefore, hold that the testimony related to the pre-trial line-up was harmless error and ...