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People v. Weathers

NOVEMBER 4, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CARL WEATHERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 28, 1974.

Defendant was indicted for armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2) and tried before a jury. He was convicted and sentenced to a term of from 3 to 9 years in the Illinois State Penitentiary. He appeals, asking that we reverse his conviction and remand the case for a new trial.

Four issues are presented: (1) whether the defendant was denied due process of law when the trial court denied his motion to suppress identification testimony (2) whether the trial court abused its discretion when it refused to permit the defendant to produce two witnesses at trial who would have testified favorably respecting his reputation in the community for truth and veracity; (3) whether the trial court erred when it issued a limiting instruction to the jury over defendant's objection concerning testimony at trial respecting his involvement in another crime; and (4) whether the defendant was denied due process of law as the result of comments by the prosecutor in his closing argument to the jury. For reasons which follow, we affirm the conviction.

The victim of the armed robbery testified that the robber approached him on the street at night beneath a high-intensity illumination street lamp. The robber pulled out a gun and instructed the victim to part with the money in his wallet. The victim had ample opportunity to observe the robber closely and he subsequently provided police with the following description of him: male, black, slightly taller than 5 feet 8 inches, about 155 pounds, early twenties, moustache, and dressed in an army fatigue jacket with the hood pulled up around his head. Later that evening, the victim picked the defendant out of a lineup conducted at police headquarters consisting of four black males of approximately the same height, weight, build and age after each man was made to utter these words spoken by the robber: "Give me some bread, man." In addition, an occurrence witness present near the scene of the crime, testified at trial that the same man who robbed the victim had first approached her on the street as she got out of her car. He brandished a gun and demanded that she give him her money. When she told him she had no money, he turned and walked across the street toward the eventual victim. She too had ample opportunity to observe the culprit at close range under bright lighting and she too provided police with a detailed description. Further, she identified the defendant as the culprit shortly after the crime. Police had come to her home and requested that she accompany them to police headquarters for the purpose of making an identification. As she walked out to their car, she saw a man seated in the back seat of a nearby parked car. She promptly identified him as the culprit. The car was an unmarked squad car. At the motion to suppress identification testimony, she stated that she identified the man without prompting from police and that she did not see him in handcuffs.

Defendant was found by police a short distance from the scene of the crime within one-half hour after they received the armed robbery report. Defendant matched the description they had been given. They stopped and searched him, finding no money and no weapon.

Defendant took the stand at trial and denied committing the crime. He testified that he had been at the home of a friend when the crime was committed. The State produced the friend's mother as a rebuttal witness and she denied that defendant was in her home at that time. Defendant was convicted and this appeal followed.

I

The first issue raised by defendant concerns whether the trial court erred when it denied his motion to suppress identification testimony by the victim of the armed robbery. Defendant argues that the testimony at trial should have been suppressed because it resulted from an unnecessarily suggestive lineup. He contends that the lineup was unnecessarily suggestive because he was the only one of the four men exhibited to the victim wearing an army fatigue jacket said to have been worn by the robber. Although we are mindful of the United States Supreme Court's warning in U.S. v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, that there is an inherent danger of suggestibility in a lineup where a suspect is the only person exhibited to an identifying witness in "clothing which the culprit allegedly wore" (at 233), we nevertheless disagree for several reasons with the defendant's argument.

• 1-3 Defendant has the burden of showing that the lineup was unnecessarily suggestive within the totality of the circumstances (Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Norfleet (1972), 4 Ill. App.3d 758, 764, 281 N.E.2d 761; People v. Tuttle (1972), 3 Ill. App.3d 326, 330, 278 N.E.2d 458) so as to give rise to a substantial likelihood of irreparable mistaken identification (People v. Johnson (1970), 45 Ill.2d 38, 45, 257 N.E.2d 3; People v. Jackson (1973), 12 Ill. App.3d 789, 793, 299 N.E.2d 142), and, in the event defendant should succeed in establishing that the lineup was invalid, then the identification in court may still be admissible provided that the State can show by clear and convincing evidence that the identification is based on an observation independent of the tainted lineup (People v. Fox (1971), 48 Ill.2d 239, 245, 269 N.E.2d 720; People v. Griffin (1973), 12 Ill. App.3d 193, 199, 297 N.E.2d 770). Of course, the nature of a lineup presupposes that there will be some differences in the persons exhibited to identifying witnesses. The crucial question so far as due process is concerned is where to draw the line between differences that are unnecessarily suggestive and those that are not. In the present case the lineup consisted of four black males of approximately the same height, weight, build and age. All were dressed in winter coats except that defendant's was of the fatigue jacket variety. A similar argument to defendant's was rejected by this court in People v. Wicks (1969), 115 Ill. App.2d 19, 24-25, 252 N.E.2d 698, where defendant was the only person exhibited wearing a black trenchcoat of the sort the culprit had been said to have worn (see also People v. Keane (1970), 127 Ill. App.2d 383, 390, 262 N.E.2d 364; and People v. Shaw (1972), 6 Ill. App.3d 366, 368-369, 286 N.E.2d 3). In Wicks the court concluded that the lineup was not unnecessarily suggestive. They added that they were "reinforced" (at 24) in reaching their decision because the identifying witness had denied that the trenchcoat formed the basis of his identification of the defendant. He had stated that his identification was based on a recognition of defendant's voice. We are similarly reinforced in reaching our decision here that the lineup was not unnecessarily suggestive because of the identifying witness' testimony that he identified defendant as the culprit after defendant uttered words at the lineup allegedly spoken by the culprit at the time of the armed robbery. Since identification by voice is a permissible means of identification (People v. Nelson (1970), 127 Ill. App.2d 238, 245, 262 N.E.2d 225), we conclude that the lineup identification was valid.

• 4 Second, we believe that the State met its burden of proving by clear and convincing evidence that the in-court identification was based on a source independent of the lineup. Indeed, the record shows that the identifying witness observed the culprit at close range for several minutes beneath a high-intensity street lamp. His description of the culprit to police was unwavering in detail and his identification of the accused was positive. Therefore, we hold that the trial court properly denied defendant's motion to suppress.

II

Defendant next contends that the trial court abused its discretion when it refused to permit him to produce two witnesses at trial who would have testified favorably respecting his reputation for truth and veracity in the community. We disagree.

• 5 Evidence of a defendant's reputation for truth and veracity is generally admissible in a criminal prosecution. To be admissible, however, such evidence must bear on some issue involved in the crime charged (People v. Jinkins (1967), 82 Ill. App.2d 150, 157, 225 N.E.2d 657). In a prosecution for armed robbery, evidence of a defendant's reputation for truth and veracity is not relevant to the issue of guilt; therefore, it is not admissible (People v. Kendall (1934), 357 Ill. 448, 456-457, 192 N.E. 378; People v. Celmars (1928), 332 Ill. 113, ...


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