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People v. Rogers

OCTOBER 18, 1974.




APPEAL from the Circuit Court of St. Clair County; the Hon. CARL H. BECKER, Judge, presiding.


This is an appeal from a judgment entered by the circuit court of St. Clair County, on a jury verdict, against the defendant, Douglas Rogers, on three counts of armed robbery and the imposition of three concurrent sentences of 10 to 15 years in the penitentiary.

In this appeal the defendant raises six allegations of error: (1) that he was denied the effective assistance of counsel; (2) that he was not proven guilty beyond a reasonable doubt; (3) that the trial court erred in admitting the testimony of two policemen; (4) that the trial court erred in communicating privately with the jury; (5) that the trial court erred in imposing three sentences for alleged offenses arising from the same conduct; and (6) that the sentences imposed were excessive.

• 1 The defendant's first contention is that he was denied due process of law due to the incompetency of his appointed counsel. It is, of course, the duty of the trial court to see that counsel assigned by it has sufficient ability and experience to fairly represent the defendant, present his defense and to protect him from undue oppression. (People v. Blevins (1911), 251 Ill. 381, 96 N.E. 214.) Although a defendant is entitled to a fair trial, his attorney is not expected, nor does due process require that he, be infallible. It is only where the defendant demonstrates "actual incompetence of counsel as reflected by the manner of carrying out his duties as a trial attorney and * * * subsequent prejudice therefrom without which the outcome would probably have been different" that the constitutional requirement of adequate representation will demand reversal. People v. Teague (1973), 15 Ill. App.3d 479, 305 N.E.2d 80, 87. See also People v. Gill (1973), 54 Ill.2d 357, 297 N.E.2d 135; People v. Goerger (1972), 52 Ill.2d 403, 288 N.E.2d 416; People v. Dudley (1970), 46 Ill.2d 305, 263 N.E.2d 1.

• 2 The first alleged instance of incompetency of counsel is the defense attorney's failure to request the court to order that all witnesses be kept separated. Prior to the trial's commencement, the defense counsel did move that all witnesses be excluded from the courtroom. The defendant contends that his attorney should have taken the additional precaution of moving for the separation of witnesses. However, the defendant fails to allege, and we are unable to find, any unique circumstances which demonstrate a particular need for the separation of witnesses in the instant case. In the absence of such an allegation or finding we cannot say that the defense counsel's failure to make such a request manifested his incompetence.

• 3 The defendant also alleges that the record "reveals confused and uninformed questioning" by defense counsel during cross-examination of the State's witnesses. The record does not substantiate that claim. Moreover, "a review of appointed counsel's competency does not extend to those areas involving the exercise of judgment, discretion, or trial tactics." (People v. Witherspoon (1973), 55 Ill.2d 18, 302 N.E.2d 3, 5.) The extent and manner of a defense counsel's cross-examination of the State's witnesses will not be subjected to the scrutiny of the reviewing court where, as in the instant case, the defense counsel's action or inaction involves the exercise of his "judgment, discretion, or trial tactics."

• 4 The final alleged instance of incompetency is that defense counsel failed to question Mrs. Verdin Hesterberg, a victim of the alleged offense, about the possibility of an improper identification procedure. Assuming ad arguendo that the identification procedure was tainted and that counsel's failure to develop this area demonstrated his incompetence the defendant was not prejudiced thereby and the conviction need not be reversed. Mrs. Hesterberg's testimony reveals that she had an excellent opportunity to view the perpetrators during the commission of the alleged offense. It is likely, therefore, that even if an improper identification procedure had been employed, Mrs. Hesterberg's in-court identification had an origin independent of that procedure, and under such circumstances, the in-court identification need not be suppressed. (People v. Rodgers (1972), 53 Ill.2d 207, 290 N.E.2d 251.) In any event there were two other prosecution witnesses who made a positive identification of the defendant at the trial. Hence, even if Mrs. Hesterberg's identification testimony had been suppressed in its entirety, we cannot say that the outcome of the trial would probably have been different. Without such a determination defendant could not have been prejudiced by the actions of his appointed counsel and, therefore, we will not reverse the defendant's conviction on the ground that defendant's counsel was incompetent.

• 5, 6 The defendant also contends that he was not proven guilty beyond a reasonable doubt because the conviction rests upon identification testimony that is vague and uncertain. The general rule is that the sufficiency of eyewitness identification is a matter for determination by the trier of fact, and a reversal will not be warranted unless the testimony is so unsatisfactory as to leave a reasonable doubt as to the guilt of the accused. (People v. Williams (1972), 52 Ill.2d 455, 288 N.E.2d 406; People v. Del Genio (1973), 10 Ill. App.3d 437, 294 N.E.2d 78; People v. Hill (1972), 3 Ill. App.3d 694, 279 N.E.2d 497.) Testimony of a single eyewitness is sufficient to establish guilt beyond a reasonable doubt provided such witness had an ample opportunity to observe the defendant and such witness is credible. People v. Guyton (1972), 53 Ill.2d 114, 290 N.E.2d 209; People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631; People v. Savage (1973), 12 Ill. App.3d 734, 298 N.E.2d 758.

In the instant case three eyewitnesses positively identified the defendant at the trial. Each of the witnesses had an ample opportunity to observe the defendant during the commission of the alleged offenses. The record reveals that the store in which the alleged offenses occurred was well lighted; that the defendant was in close proximity to the witnesses; and that each of the witnesses had sufficient time to observe the defendant.

The defendant contends that eyewitness identifications were doubtful, vague and uncertain since the witnesses could not recall whether the defendant had worn glasses, a mustache, or a beard. It is well established that minor discrepancies in the testimony of an eyewitness do not destroy credibility and are for the trier of fact to weigh in its deliberations. (People v. Del Genio (1973), 10 Ill. App.3d 437, 294 N.E.2d 78; People v. Willis (1970), 126 Ill. App.2d 348, 261 N.E.2d 723.) Where identifications testimony is positive, as in the instant case, precise accuracy in describing facial characteristics of a defendant is not necessary. (People v. Miller (1964), 30 Ill.2d 110, 195 N.E.2d 694; People v. Carroll (1973), 12 Ill. App.3d 869, 299 N.E.2d 134; People v. Taylor (1972), 8 Ill. App.3d 727, 290 N.E.2d 342.) We, therefore, find that the identification testimony of the three witnesses was clear, convincing and credible and that the defendant was proven guilty beyond a reasonable doubt.

• 7 Next, the defendant contends that the court erred in admitting the testimony of two East St. Louis policemen, Lawrence Brewer and Emanuel Farmer. Lawrence Brewer testified that he placed the defendant in custody on March 30, 1972. Defense counsel objected to any further testimony concerning the arrest on the ground that it had no bearing on the alleged offenses. The objection was overruled, and Brewer was then asked whether the defendant was taken into custody as a suspect in the instant case. Defense counsel again objected and asked that a continuing objection be noted in the record. The objection was overruled. When Brewer was asked if he knew who lived in the residence at which the defendant was arrested, defense counsel again objected and requested that his continuing objection be shown. The trial court responded that the objection was overruled but that counsel's continuing objection would be shown. Brewer then testified that the defendant had been living with Ella Smith, his girlfriend. Defense counsel objected, claiming that the testimony was highly prejudicial, but the prosecutor said that he would "attempt to connect it up." Brewer then testified that Ella Smith owned a blue 1966 Chevrolet with a black vinyl top.

Officer Farmer testified that on April 1, 1972, he dusted Ella Smith's blue 1966 Chevrolet for fingerprints. It was his opinion that some of the prints lifted from that car matched those of the defendant. The defendant did not object to officer Farmer's testimony.

The prosecutor's attempt to connect the preceding evidence was based upon the testimony of the witness Philip Reinecker. He testified that he saw three men running from the scene of the alleged offenses "in a suspicious manner" on March 29, 1972, the date of the alleged offenses. He further testified that the men ran down an alley and got into a blue car with a black vinyl top. The witness did not know the make or the license number of the car.

• 8 "The test of the admissibility of evidence is whether it fairly tends to prove the particular offense charged, and any circumstances may be put into evidence which tend to make the proposition at issue more or less probable." (People v. Peter (1973), 55 Ill.2d 443, 559, 303 N.E.2d 398, 408. See also People v. Rodgers (1972), 53 Ill.2d 207, 290 N.E.2d 251; People v. Nemke (1970), 46 Ill.2d 49, 263 N.E.2d 97.) Proof with respect to the opportunity to execute an act is admissible to raise or negate an inference as to its performance by the person charged with its commission. Thus, recent possession by the accused of instruments suitable for the commission of the offenses, ...

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