APPEAL from the Circuit Court of Stephenson County; the Hon.
WESLEY A. EBERLE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Defendant was tried before a jury upon indictments charging the offenses of armed robbery, robbery, and theft. The jury was unable to reach a verdict as to the armed robbery charge but defendant was convicted of the robbery and theft offenses. The court found that the theft was a lesser included offense in the robbery charge and sentenced defendant on the robbery charge only, to a term of 5-15 years, to be served concurrently with a sentence in another county.
Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt and that the trial court committed reversible error in questioning the jury during their deliberations. In a supplemental brief defendant raises the alternative claim that even if we uphold the robbery verdict the judgment on the lesser included offense of theft must be vacated.
The robbery occurred on May 25, 1972, at the Eagle Food Store in a shopping mall in Freeport. Mrs. Marsh, the checkout clerk at the first register, testified that the man she positively identified in court as the defendant approached her and asked her if the manager was in. That when she said no, defendant stood in line at her register. When his turn came, he leaned over to Mrs. Marsh and said something she did not understand. He then told her to take a paper bag, put the money in it and do the same at the other registers. She observed at one point that he had a gun inside his coat.
Mrs. Marsh put the money from her register into the bag and walked with the defendant to the other registers which were manned. At the last cash register Mrs. Marsh tossed the bag filled with money to another checker, Mrs. Markman, telling her to run. Another checker, Mrs. Munz, told Mrs. Markman to give the bag to defendant. Mrs. Markman was confused and dropped the bag on the floor.
The witness testified that defendant then drew a gun and pointed it at her, picked up the bag and ran from the store.
Mrs. Marsh further testified that after she first saw defendant it was about 3 minutes before he got into her checkout line; that it was a minute or two before he talked to the witness; and that the defendant was in the store approximately 5 minutes more.
She described the robber to the police as being a 5-foot 11-inch, 170-pound black, wearing a gray-green small hat, rounded sunglasses; a gray sports jacket with charcoal specks and "goldish" pants. She identified the hat and the jacket taken from defendant's car as the ones she had seen and had described to the police; but she could not positively identify the pants defendant was wearing as the solid-colored ones she had seen.
Another checker, Mrs. Munz, said she saw defendant in the store when Mrs. Marsh asked her if the manager was back and noticed his gray hat and gray sport coat. She saw him again when Mrs. Marsh came to her register with him and saw him from a distance of a foot or so when he stood beside her and had a gun pointing at Mrs. Markman. Both Mrs. Munz and Mrs. Markman positively identified defendant in court. There were some discrepancies in the testimony of the three checkers relative to the clothing worn by the robber, but their descriptions of the robber at the time of the offense were substantially similar.
David Fellenzer, an employee who chased the robber as he left the store came within 10 or 15 feet of the man in the parking lot. When he yelled for the man to stop, the robber turned on the employee pointing the gun at him. The witness dropped to the ground and next saw a red and white Ford, a 1962 or 1963 sedan, leaving the lot. There were no license plates on the car. The witness also identified defendant in court as well as a colored photograph of the car defendant was driving when apprehended.
A customer who was behind the robber in the checkout line and who said defendant turned to her and told her to "be cool" also made a positive in-court identification of defendant. Other customers in the store also identified defendant.
The police who received a call with descriptions of the man in the car shortly after the robbery pursued and stopped a car matching the description being driven by the defendant with no license plates displayed. The defendant was arrested and upon a search of the vehicle the police found the bag with the money, a zippered bag with a metal cast toy gun, which they described as a good replica of a Luger-type pistol or revolver, and a license plate on the rear floorboard. A hat, sunglasses and a sport coat similar to those described by witnesses at the store were also found in the car.
Shortly after the arrest Mrs. Marsh, Mrs. Munz and Fellenzer were brought to the station and viewed defendant through a one-way mirror. An officer requested that defendant put on the hat which had been recovered from his car and when he refused, the officer placed it on him. The officer also testified that he possibly asked him to put the glasses on but he did not remember whether he had him put the coat on. Mrs. Marsh, Mrs. Munz and Fellenzer each testified that they identified the defendant as the same man who was in the store earlier that day. Mrs. Munz testified she identified defendant after he put on the jacket and hat but that she could tell that it was him before he put on these items. Fellenzer said that he positively recognized defendant after he put on his jacket and the hat.
In a lineup that was held the following day, defendant was again identified by Mrs. Markman and by several other of the witnesses who were in the store at the time of the robbery. At the lineup defendant refused to repeat the words which the participants were asked to repeat.
From this evidence defendant argues that defendant was convicted on the basis of eye witness testimony which was inherently suspect because the witnesses did not have a sufficient opportunity to observe and because the showup and lineup were impermissibly suggestive thus tainting the in-court identification made by the witnesses. From our examination of the entire record we do not agree.
• 1, 2 Identification testimony of even one witness is sufficient to sustain a verdict of guilty if the witness' testimony is positive and credible and based on an adequate opportunity to observe the accused. (People v. Solomon (1962), 24 Ill.2d 586, 591-592; People v. Smith (1974), 18 Ill. App.3d 859, 867.) Mrs. Marsh had a particularly adequate opportunity to observe the defendant and her identification was not substantially impeached. The weight of the testimony of the other eye-witnesses who had a somewhat lesser opportunity to see the accused but who also positively identified the defendant was a matter for the jury. People v. Chapman (1961), 22 Ill.2d 521, 524-5.
• 3, 4 The subsequent identification of defendant by three of the witnesses at a showup does not vitiate the identification testimony. The practice of showing suspects singly to persons for the purpose of identification and not as part of a lineup has been widely condemned, but it may be justified when prompt identification is necessary and where it is apparent that the witness had an excellent opportunity to observe the defendant during the commission of the crime. (People v. McMath (1970), 45 Ill.2d 33, 36; People v. Simmons (1970), 130 Ill. App.2d 614, 617.) And even if it could be said that the police station confrontation was unnecessarily suggestive it cannot be said that it was so conducive to irreparable mistaken identification that defendant was denied ...