APPEAL from the Circuit Court of Monroe County; the Hon. ALVIN
H. MAEYS, JR., Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Monroe County entered after a jury verdict of guilty of attempt burglary. The principal issue is whether a pretrial identification procedure denied defendant due process of law.
The chief prosecution witness, an Illinois State trooper, testified that he observed the defendant at the scene of the offense. Subsequently, after finding another participant in the offense in a truck marked with the lettering "H.L. Allender," the witness requested a photograph from the St. Louis County Police Department of the person whose name appeared on the truck. After looking at the photograph, the witness determined that the man whose picture he had received was the same man he had observed at the scene of the offense. At the time of trial the witness identified the defendant as the person he had observed at the scene of the offense. Defendant argues that the photographic identification procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. He claims the basis of the trooper's identification was not his view of the suspect at the scene but the suggestive influence of the photographic identification procedure which he used.
• 1 The determination of this issue requires a review of those cases involving suggestive pretrial identification procedures. In Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968), the Supreme Court considered questions arising where witnesses were shown photographs in the investigative process to determine possible suspects where no person had been taken into custody or charged with the offense. Noting the necessity of prompt identification of possible suspects following a crime, the Court refused to prohibit such a procedure as a matter of constitutional requirement, but stated that each case concerning such technique must be determined upon its facts and that convictions based upon eyewitness identifications at trial following pretrial recognition by photograph "will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." 390 U.S. 377, 384, 19 L.Ed.2d 1247, 1253, 88 S.Ct. at 971.
Additional guidelines as to the relationship between suggestiveness and misidentification were announced in Neil v. Biggers, 409 U.S. 188, 198, 34 L.Ed.2d 401, 410-11, 93 S.Ct. 375, 381-82 (1972), where the Supreme Court stated that
"It is the likelihood of misidentification which violates a defendant's right to due process * * *. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous."
Illinois courts, while granting recognition to the use of photographs as a beneficial tool in the investigation of criminal activity, have held that "identification procedures in which an accused is exhibited to a witness alone, in the absence of any justifying or saving circumstances, are so improperly suggestive as to amount to a denial of due process." People v. Carruthers, 18 Ill. App.3d 255, 263, 309 N.E.2d 659; People v. Sanders, 4 Ill. App.3d 494, 280 N.E.2d 269.
Our Supreme Court has recognized four "justifying or saving circumstances" which might render an otherwise suggestive identification procedure nonreversible error: Where the victim is in the hospital and may not survive; where the identification witness had an excellent opportunity to observe the suspect; where the suspect was known to the witness prior to the crime; and where the suspect has uncommon distinguishing characteristics. People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152, 154.
These exceptions indicate that, even though a pretrial confrontation is tainted or even grossly suggestive, in-court testimony of an identifying witness will still be admissible so long as the record clearly reveals that the witness's prior observation of the defendant is sufficient to serve as an independent basis for in-court identification. (People v. McMath, 45 Ill.2d 33, 256 N.E.2d 835.) See also People v. Rodgers, 53 Ill.2d 207, 290 N.E.2d 251, which held the identification of the defendant from a single photograph, approximately two years after the crime, did not deny due process where the identification was based on an excellent opportunity to observe the defendant at the time of the crime.
• 2 Under the applicable Illinois case law, we conclude that the use of a single photograph by the State trooper in his identification procedure was unnecessarily suggestive. The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one is available. Clearly, the police could easily have added several police photographs to the one shown the trooper. That Allender's name was printed on the truck in which a participant of the offense was found would very likely predispose the trooper to identify the single photograph of Allender requested and supplied by the St. Louis County Police Department, especially in light of the weak evidence surrounding the initial identification.
• 3 We turn, then, to the question whether under the totality of the circumstances the identification procedure was reliable even though the confrontation procedure was suggestive. Factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the suspect at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the suspect, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Neil v. Biggers, 409 U.S. 188, 199, 34 L.Ed.2d 401, 411, 93 S.Ct. 375, 382.
The facts underlying this appeal indicate that on August 20, 1970, near midnight, the State trooper drove to the south side of the Columbia Equipment Company building. He stopped in front of the garage door, looked through the window, and noticed a window on the east side of the building open and broken. He saw two men at that window and reported a burglary in process.
The State trooper testified there were fluorescent lights on inside the building and that for a total of 10 to 15 seconds he got a good view of the men's chests, shoulders, and heads. He was 30 to 40 feet from them and nothing, not even the security of bars attached to the window frame, blocked his view. The man on the left had his head and shoulders completely inside the building and the man on the right, later identified as defendant Allender, was standing in a crouched position under the open windows outside the security bars facing northwest. Testimony also revealed that iron bars were placed on the garage door and the window frame through which the suspects were attempting to enter, indicating an added obstacle to the trooper's view. In addition, defendant Allender was standing in a crouched position under the open windows outside the security bars thereby making him less noticeable to the on-viewing trooper.
On cross-examination the trooper testified that the eyes, nose, mouth and forehead were essential to an identification, but no specific description was ever given by him. He further testified on cross-examination that the window on the garage door, through which he observed the suspects, was cloudy and murky from fumes and that the area was "fairly well" lit. The suspects, after sighting the trooper, fled in separate directions. The trooper ran to the back of the building and saw one of the men run southeast and the other run directly north. He testified that there was a mercury-vapor dusk-to-dawn light on the telephone pole at the southeast corner of the building and a shielded light so that it was very bright. He ordered the man running southeast to stop and ...