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People v. Dunn

AUGUST 19, 1975.

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

v.

GREGORY DUNN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS B. GARIPPO, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Gregory Dunn, defendant, was found guilty after a bench trial of the crime of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2). He was sentenced to a term of 5 to 8 years. Defendant appeals arguing (1) that the trial court erred in denying his motion to suppress the identification testimony, (2) that the evidence was insufficient to establish his guilt beyond a reasonable doubt, (3) that the trial court erred in admitting his oral statement into evidence, and (4) that his sentence is excessive.

At trial Lawrence Podolak testified that on October 26, 1971, he was working at the Citgo gas station located at 147th and Cleveland, Posen, Illinois. At approximately 11:30 p.m., defendant drove into the gas station in a white Mustang. Defendant asked Podolak for change. Podolak testified that as he went into the cash register defendant produced a gun and announced a holdup. Defendant forced Podolak into the back room and ordered him to put his hands on the wall. Defendant then took Podolak's wallet and roll of bills from his pocket totaling between $245 and $270. Podolak testified that there were lights on in the front of the gas station where defendant initially confronted him and in the back room of the station. Defendant then ordered Podolak to crawl underneath the sink and Podolak complied. Defendant laid a 5-foot stepladder across Podolak's back and put a pail on the ladder. Defendant told Podolak that if he heard the pail fall he would return and shoot Podolak. Defendant then went into the front office where he took some rolls of change out of the drawer. Podolak testified that after hearing defendant leave the station he got up and telephoned the police. The entire robbery took approximately 5 minutes. Podolak testified that 10 to 15 minutes after he telephoned the police a squad car pulled into the station. At that time he observed defendant seated in the rear of the squad car and identified him as the man who had robbed him.

Howard Farning, a police officer from the Village of Calumet Park, testified that at approximately 11:45 p.m. on October 26, 1971, he was on routine patrol when he received a call of an armed robbery. The call included a description of a male Negro wearing a dark leather coat, dark pants and driving a white 1965 or 1966 Mustang. A few moments later Officer Farning observed defendant wearing a dark coat and driving a white 1965 or 1966 Mustang in the area of 127th Street and I-57. Officer Farning testified that he pulled defendant's vehicle over and asked defendant to produce his driver's license. Defendant complied. Officer Farning then asked defendant where he was coming from and defendant stated that he was coming from Harvey. Defendant could not say where in Harvey. Officer Farning went back to his vehicle and radioed for a further description of the wanted suspect. Thereafter Officer Farning went back to defendant's vehicle and again asked where in Harvey defendant had been coming from. At that time the defendant said, "Man, give me a break." Officer Farning asked what the defendant meant and defendant stated, "I'll give it back." Officer Farning asked what defendant was going to give back and defendant said, "I'll give the money back I took from the gas station." Defendant was then placed under arrest and given his Miranda warnings. Officer Farning conducted a search of the defendant and recovered a .22-caliber nine-shot revolver from defendant's belt. Defendant was subsequently turned over to Captain Powers of the Posen Police Department.

Raymond W. Powers, the chief of police for the Village of Posen, testified that at approximately 11:45 p.m. on October 26, 1971, he received custody of defendant from Farning. He conducted a search of defendant which revealed a roll of silver coins and United States currency totaling approximately $239 in defendant's pocket. Defendant was handcuffed and taken back to the gas station for purposes of identification.

Gregory Dunn, defendant, testified that on October 26, 1971, at approximately 9 p.m., he arrived at the Thomas home in Harvey, Illinois, for a business meeting. At about 11 p.m., Randy Johnson came to the meeting. Defendant testified that at about 11:30 p.m., he left the meeting to go to the Steak and Take Restaurant where he is employed. Defendant stated that he was carrying some money and a gun belonging to the restaurant in between the two bucket seats in the front of his car. Defendant stated that while traveling on I-57 he was forced over by a small black car which he did not believe to be a police vehicle. Defendant stated that as soon as Officer Farning got out of the vehicle, he saw that he was wearing a uniform and recognized him as a police officer. Officer Farning asked defendant for his driver's license and defendant complied. Officer Farning then went back to his car and used the radio. Shortly thereafter two policemen from Robbins, Illinois, showed up and handcuffed defendant. Defendant stated that the police officers then searched the vehicle finding the money and the gun inside the car. Defendant stated that he was then handcuffed and taken back to the scene of the robbery. Defendant denied ever making any statements to Officer Farning in which he stated that he would give back the money taken in the robbery of the gas station.

Lewis Thomas and Hubert Thomas testified that on October 26, 1971, at approximately 9 p.m., they met the defendant at their father's house in Harvey, Illinois. The meeting was held to discuss the possibility of opening up a new business. Defendant left the meeting at approximately 11:30 p.m. saying that he had to go to work.

Randy Johnson testified that he owned the Steak and Take Restaurant at 1311 South Halsted. Defendant had worked for him for approximately 5 years. Johnson testified that on October 26, 1971, he arrived at the meeting at the Thomas home in Harvey, Illinois, at approximately 11 p.m. At approximately 11:15 p.m., he told defendant to return to the restaurant to relieve the midnight shift. It was part of defendant's duty to bring monies for the change of shifts, and to the best of his knowledge, defendant did have monies for the restaurant on the night in question. He did not, however, know how much money defendant had.

• 1 Defendant's initial contention is that the trial court erred in denying his motion to suppress the identification testimony. Defendant argues that his identification by Podolak at the service station was a one-man showup which was impermissibly suggestive. We disagree. 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, 45 Ill.2d 33, 256 N.E.2d 835; People v. Broadnax, 23 Ill. App.3d 68, 318 N.E.2d 499.

In the McMath case, the defendant was convicted of robbery. The facts adduced at trial revealed that defendant was stopped for a traffic violation. The arresting officer found a toy pistol and a stocking cap on the front seat of defendant's vehicle. The officer radioed and learned that a robbery had just occurred. The defendant was immediately taken to the scene of the robbery where he was identified by the victim. On appeal defendant argued that the procedure by which he was shown to the victim singly was improper. The court rejected defendant's contention holding (45 Ill.2d 33, 36):

"In this case we find that the service station confrontation was justified because prompt identification was necessary to determine whether defendant was the offender or whether the officers should continue their search."

• 2 In the case at bar, defendant was stopped by Officer Farning because he matched the description of a man wanted for robbery. Within 15 minutes after the robbery occurred, the defendant was brought back to the scene of the robbery where he was identified by the victim. The police, therefore, were attempting to quickly determine whether defendant was the robber or whether they should continue their search. Under these circumstances, the service station identification of the defendant by Podolak was proper.

• 3 In addition, we would note that Podolak's testimony at trial established that during the robbery which took approximately 5 minutes, he had ample opportunity to view defendant from close proximity. Podolak first observed defendant when he walked into the gas station and asked for change. Podolak described that area as being well lit. Podolak's testimony established that he was able to view defendant for a sufficient period of time from close proximity so as to properly fix his identity. (People v. Wright, 10 Ill. App.3d 1035, 295 N.E.2d 510 (abstract opinion).) The rule is well established that the in-court identification of a defendant by a witness is properly admitted into evidence if it has a source independent of and is untainted by any viewing of the defendant alone. (People v. Taylor, 52 Ill.2d 293, 287 N.E.2d 673.) Under the facts of this case, we conclude that Podolak's in-court identification of the defendant had a source independent of and was untainted by any viewing of the defendant alone. In any event, therefore, the identification testimony was properly admitted into evidence.

Defendant's next contention is that the evidence was insufficient to establish his guilt beyond a reasonable doubt. The rule is well established and has often been stated that in a bench trial the credibility of witnesses is for the trier of fact to determine and his determination will not be disturbed on review unless it is based upon evidence which is so unsatisfactory as to raise a reasonable doubt as to defendant's guilt. (People v. Wright, 3 Ill. App.3d 262, 278 N.E.2d 175; People v. Daugherty, 1 Ill. App.3d 290, 274 N.E.2d 109.) An identification of a defendant by one witness if ...


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