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People v. Miller

AUGUST 18, 1975.

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

v.

THOMAS MILLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. HAROLD O. FARMER, Judge, presiding.

MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the Circuit Court of St. Clair County entered after a jury verdict where defendant was adjudged guilty of the offenses of armed robbery and attempted murder. The defendant received concurrent sentences of 5 to 15 and 8 to 15 years, respectively.

The record discloses that in the early morning hours of January 8, 1972, James Boatwright and his mother-in-law, Viola Parker, drove from St. Louis to East St. Louis to purchase some beer. While Mr. Boatwright went inside a tavern to purchase the beer Mrs. Parker waited in the car with the doors locked. After purchasing the beer and on his way back to the car Mr. Boatwright was approached by a man who was holding a gun in the palm of his hand. Boatwright testified that he thought the man wanted to sell the gun. The man with the gun then instructed Boatwright to put his hands up and informed him this was a "stick up." While this first man held the gun on Boatwright another man approached from behind and took Boatwright's billfold and cigarette lighter. The man holding the gun then took Boatwright's watch.

Both men then took Boatwright back to his car where the man with the gun was able to get Mrs. Parker to unlock the doors by threatening to kill Boatwright if she did not. According to Boatwright, one of the men sat in the back seat with him while the other was in the front seat with Mrs. Parker. Once they were all in the car the man in the back seat began striking Boatwright with the pistol. Boatwright struggled with his attacker but was knocked unconscious by one of the men and dragged out of the car. After the men had removed Boatwright out of the car he regained consciousness and struggled with them again. It was at this point that Boatwright was shot four times.

The men left Boatwright next to the car and they took Mrs. Parker with them. After a short walk and ride in another car the men released Mrs. Parker.

According to Boatwright, he observed the robbers for approximately 15 minutes, a portion of which was under fluorescent street lights. On direct examination he testified as to the role played by the defendant in this robbery and shooting, but on cross-examination he admitted he was confused as to the part played by each of the men who participated in the robbery. He was unshaken though in his identification of the defendant in a police lineup, and in addition he identified the defendant in court as one of the men. On cross examination, Boatwright testified further that he had been shown five or six photographs while he was still in the hospital immediately after the incident in question, and although one of the pictures resembled the defendant he could not positively identify him from the photograph. In addition to these identifications of the defendant, Boatwright identified a cigarette lighter recovered from the defendant as the one taken during the robbery.

Mrs. Parker corroborated Boatwright's account of the events, but stated she could not identify either of the men who committed the robbery and shooting because she did not get a good look at them.

The defendant testified on his own behalf that he was home at the time of the robbery and denied any participation in the crime. He testified further that the lighter the police recovered from him was one he had found at a tavern. He produced two witnesses who corroborated his story about the lighter. In rebuttal the State produced a police officer who testified that when the defendant was asked how he came into possession of the lighter he gave two or three different stories.

The first issue raised on appeal is whether the identification of the defendant was proven beyond a reasonable doubt. The defendant claims that Mr. Boatwright's identification was vague, doubtful and uncertain because of the following reasons: (1) he had a limited opportunity to view the robbers; (2) he could not positively identify the defendant from the photographs shown to him in the hospital; (3) Mrs. Parker, who the defendant claims had a better opportunity to view the robbers, could not identify the defendant; and (4) Boatwright's confusion on which part the defendant played in this whole event.

• 1 We are convinced the identification of the defendant was proven beyond a reasonable doubt. Although there is a rule in Illinois that a conviction cannot be sustained beyond a reasonable doubt where the identification of the defendant is vague, doubtful and uncertain (People v. Cullotta, 32 Ill.2d 502), there is also a well-established rule that the testimony of one witness is sufficient to convict. The latter rule is true even though such testimony is contradicted by the accused, provided however that the witness is credible and viewed the accused under circumstances which would permit a positive identification to be made. (People v. Catlett, 48 Ill.2d 56; People v. Brinkley, 33 Ill.2d 403.) Mr. Boatwright testified that he observed the defendant for approximately 15 minutes, a portion of which was under good lighting. It was therefore reasonable for the jury to find his identification was credible and that the circumstances were such as to permit a positive identification.

Mr. Boatwright's failure to positively identify the defendant from a photograph is of little consequence. In People v. Woods, 114 Ill. App.2d 348, the defendant claimed his identification was not proved beyond reasonable doubt because the witness failed to identify him from a photograph, prior to a lineup. The court concluded the failure to identify the defendant from his photograph would not have a substantial adverse effect on the credibility of a subsequent positive identification at a lineup. The court in Woods based its conclusion on the premise that a photograph may not have accurately portrayed the defendant and "an identification ordinarily is based upon animate observation of a defendant in his entirety, rather than an inanimate portrayal of his face." Mr. Boatwright's subsequent lineup and in-court identifications would mitigate any failure to identify positively the defendant from a photograph.

The fact Mrs. Parker could not identify the defendant as one of the robbers only went to the weight of the evidence and the credibility of the witnesses, which is within the province of the jury to determine and not this court to review. A jury's verdict should not be set aside unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Prince, 1 Ill. App.3d 853.) In Prince two men were robbed, one of them positively identified the defendant at a lineup and in court while the other victim could make no identification. In the instant case, although Mrs. Parker had a longer time within which to observe the defendant there was evidence that she was screaming and frightened. From these facts the jury could reasonably have inferred that her mental state was such as to preclude her from making a good identification. On the other hand it was within the jury's province to believe Mr. Boatwright's positive identification of the defendant as one of the robbers. As mentioned previously one credible witness is sufficient to convict.

Whether or not Mr. Boatwright was sure of the role taken by the defendant in the robbery and shooting was another point which went to the witness's credibility and the weight to be given his testimony. It was within the province of the jury to judge what affect this confusion would have on Boatwright's credibility and the weight of the evidence. It would not have been at all unreasonable for the jury to find that Boatwright could identify his assailants while at the same time be confused as to the roles played by them. In light of the severe beating and shooting it is understandable that he might be confused, but it does not make the identification testimony so unsatisfactory as to create a reasonable doubt of guilt.

• 2 The fact Mr. Boatwright could not definitively say what role the defendant played in this event did not render the evidence of guilt insufficient because Boatwright testified the defendant was an active participant in the crime. It is the law in Illinois that "[a] person is legally accountable for the conduct of another when: * * * (c) Either before or during the commission of an offense, and with intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." (Ill. Rev. Stat. 1971, ch. 38, § 5-2.) There was ample evidence produced for the jury to conclude the defendant was ...


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