APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Defendant and Theolis Hinton were charged with armed robbery. Hinton pleaded guilty on a negotiated plea. The defendant pleaded not guilty and after a jury trial was convicted and sentenced to not less than 5 nor more than 25 years in the penitentiary. From this conviction and sentence the defendant appeals on the grounds that (a) he was not represented by counsel at the identification lineup, (b) photographs shown to the witnesses for identification purposes were impermissibly suggestive, thus tainting the identification, (c) the in-court identification was improperly admitted because not shown to have been based on observation independent of the illegal lineup and (d) his minimum sentence of 5 years should be reduced to 4 years because under the Unified Code of Corrections 4 years is the minimum and this is what the judge intended.
The robbery in question occurred on October 21, 1971, at a cocktail lounge known as Star Lite Lounge. One man, later identified as Hinton, entered the lounge, looked around, spoke briefly to the bartender and left. He returned a few minutes later with another man (later identified as the defendant). Both men were armed, Hinton with a sawed-off shotgun, the defendant with a chrome-plated pistol. Present in the lounge at the time were the proprietor, Shaffar; the bartender, Betty Saulton; and two patrons, Dennis Frost and a woman named Fritzy. While the robbery was in progress a patron, Niemi, entered and was also detained and robbed. The robber with the shotgun pointed it at the head of Frost and the other robber jumped over the bar, seized the bartender and walked her to the two cash registers, which she proceeded to empty out. All the persons present were robbed of the money they had with them in addition to the robbery of the lounge proceeds. When the robbers left the proprietor, Shaffar, called the police and gave them a brief description of a car he had glimpsed as the robbers drove away as being a black convertible with a white top, probably a Buick. A few minutes later a police squad car observed such an automobile and pursued it, whereupon the car stopped and two men jumped out, at the same time throwing a shotgun out. In the ensuing scuffle Hinton was handcuffed but the defendant, after struggling with one of the officers for a few minutes, broke away and escaped. Hinton was taken to the police station and an officer assigned to watch the suspected automobile found a wallet belonging to the defendant and a broken bracelet, later identified as defendant's, near the automobile at the scene of the arrest.
The next morning, October 22, a lineup was arranged so that the victims could view the suspect, Hinton. After this lineup the witnesses, Shaffar, Frost and Niemi, were shown "mug" shots in order to pick out the second robber. Frost and Niemi picked out the defendant but Shaffar did not identify anyone. Pursuant to an arrest warrant and complaint issued the same day the defendant was arrested on October 23. On October 24 the defendant was placed in a lineup which was viewed by Frost, Shaffar, Betty Saulton and the arresting officer who had handcuffed Hinton. All but Mrs. Saulton identified the defendant as the second robber, although Shaffar did not do so immediately and the officer refused to let him change his identification.
At the lineup the defendant was not represented by counsel. The defendant was subsequently indicted and moved to suppress the identification evidence on the ground that the pictures were suggestive and the lineup illegal because he was not represented by counsel. The motion was denied, the identification evidence was used at the trial and the defendant was convicted.
We first consider the issue raised by the defendant as to whether the lineup identification should have been suppressed on the ground that defense counsel was not present. Following the United States Supreme Court cases of 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, 87 S.Ct. 1951, which held that an identification lineup was a critical phase of the criminal proceedings against the defendant, our supreme court held in People v. Palmer (1969), 41 Ill.2d 571, that Gilbert and Wade required the presence of counsel at the lineup only where the defendant had already been indicted and that since this was an identification made at the police station prior to any indictment the doctrine of the Wade and Gilbert cases did not apply. Subsequently, however, in Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, the United States Supreme Court made it clear that the requirements of a defense counsel's presence at the lineup extended to any "adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Accordingly in the later case of People v. Burbank (1972). 53 Ill.2d 261, our supreme court interpreted the doctrine of Wade and Gilbert in the light of Kirby v. Illinois and broadened the doctrine as applicable under Illinois law to "not only post-indictment lineups but to lineups conducted after the initiation of adversary judicial criminal proceedings against an accused by whatever means." 53 Ill.2d 261, 272.
In the light of this language the defendant maintains that the identification lineup evidence must be suppressed because the issuance by the State of an arrest warrant following a formal complaint and the defendant's arrest pursuant thereto, together constituted "adversary judicial criminal proceedings" against the defendant and the absence of counsel at the lineup therefore falls within the prohibition announced in People v. Burbank.
The State argues that a mere complaint is not a "formal charge" and an arrest consequent upon the complaint is not an adversary judicial proceeding so that People v. Burbank does not apply in this case, which is actually governed by the earlier pronouncement in People v. Palmer.
It should be noted that in neither People v. Palmer nor People v. Burbank had the defendant been formally charged with the crime in question. Palmer was decided before Kirby and went on the basis that no indictment had been secured at the time of the lineup. In Burbank the court, while recognizing the broadening effect of Kirby, still held the lineup evidence admissible on the ground that the defendant at the time of the lineup had not yet been formally charged with murder.
The United States Supreme Court in Kirby speaks of "formal charge" as well as preliminary hearing, indictment, information and arraignment as being adversary judicial criminal proceedings, the initiation of which triggers the requirement of defense counsel at the lineup. We are thus faced squarely with the question whether a complaint followed by an arrest warrant and the actual arrest of the defendant amounts to, if nothing else, a "formal charge" and thus fall within the ambit of the Supreme Court's dicta describing the kind of "adversary judicial criminal proceedings" which necessitate the presence of counsel.
• 1 After careful consideration we are unable to agree with the State's contention that the proceedings here were not "adversary and judicial." As to the exact point at which a proceeding against an individual commences to be an "adversary judicial criminal proceeding" we need not here determine but we are of the opinion that in this case the proceedings had reached that critical stage at the time of the identification lineup. We therefore distinguish the present case from Burbank and People v. Williams (1972), 52 Ill.2d 455, where a formal charged had not preceded the lineup, and hold that the defendant's situation here comes within the stricture of Kirby and the general language of Burbank requiring the presence of counsel at a lineup.
We are not, however, persuaded that this holding requires a reversal of the judgment reached in the trial court, as is contended by the defendant. The requirement of counsel's presence is founded on considerations of due process. If all the circumstances taken together clearly indicate that due process was followed the absence of counsel at the identification lineup is not fatal to the judgment reached by the trial court. As our supreme court said in the Burbank case:
"Whether the defendant was denied due process of law depends upon the totality of the circumstances surrounding the identification procedure. If the witness had an opportunity to observe and there is little likelihood of mistaken identification a conviction based upon a subsequent in-court identification will not be set aside. (People v. Fox, 48 Ill.2d 239.)" (53 Ill.2d at 273.)
In this case we must inquire, therefore, whether the independent identification outside the lineup itself was sufficient to sustain the in-court identification of the defendant, disregarding entirely ...