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People v. Shelton

DECEMBER 11, 1975.




APPEAL from the Circuit Court of Peoria County; the Hon. CHARLES M. WILSON, Judge, presiding.


Defendant Gladys Shelton appeals from a felony theft conviction and from a sentence of 2 to 6 years in the penitentiary. The three issues raised on appeal concern identification testimony, alibi defense, and sentencing.

According to the trial testimony, defendant and another young black woman approached Willett Lee about 12:30 p.m. on June 17, 1974, on the sidewalk near the furniture store where Mrs. Lee worked as a cleaning lady. Defendant placed a gun against Mrs. Lee's side and told her to give them all her money or they would kill her. Mrs. Lee, who was elderly and poorly educated, went with defendant by taxicab to a savings and loan office where she withdrew her life savings of $4,500. She was given a check which defendant and Mrs. Lee then took to a bank where they obtained $4,500 cash. At both the bank and the savings and loan office, defendant stated that she was a relative of Mrs. Lee's, and that she needed cash to post bail for her husband. Thereafter defendant and Mrs. Lee met the other young woman on the courthouse steps, and Mrs. Lee turned over the cash to her. Following defendant's arrest, she was indicted by the Peoria County grand jury for armed robbery, and, at the conclusion of the trial, the jury returned a verdict of guilty of theft by threat.

After a sentencing hearing, the trial judge sentenced defendant to a term of 2 to 6 years in the penitentiary.

• 1 Defendant claims that the trial court erred in denying her motion to suppress the in-court identification of defendant by In-grid Roberts, the bank teller who cashed the check.

We first note that defendant's oral motion, as set out in the report of proceedings, was "to suppress the in-court identification of Debbie Garland * * *." Since Mrs. Garland, the savings and loan teller, made no in-court identification, the motion was meaningless, and the alleged error argued in the briefs of both parties is not presented in the record. Consequently this issue is not properly before us on appeal.

• 2 Furthermore, even if the motion to suppress had been directed to Miss Roberts' testimony, the ruling of the trial court was not erroneous under the circumstances. Mrs. Lee and defendant were in front of Miss Roberts' teller window at the bank for a total of 15 minutes. During that time Miss Roberts observed and conversed with defendant for 7 or 8 minutes at close range with good lighting, and she recalled the conversation and unusual circumstances of this transaction in considerable detail. The same afternoon, after the robbery was reported, Miss Roberts assisted police in preparing a composite description of defendant. The next day, before defendant was in custody, the police showed her two pictures, one of which she identified as defendant. Four days later she identified defendant in a lineup.

During the trial, defendant, at her own request, sat in the next to last row of the audience section of the courtroom next to three other young black women. Miss Roberts selected defendant from the audience in very positive terms, stating that she was basing her identification on her recollection of defendant at the bank and that she was not influenced by the photograph she had been shown 6 months earlier.

Defendant maintains that the photographic identification procedure was so suggestive that it tainted Miss Roberts' subsequent lineup and in-court identifications.

In similar cases, Illinois courts have held that in-court identification is admissible where it was based on an origin sufficiently independent of the photographic identification, so that it does not give rise to a very substantial likelihood of irreparable misidentification. (People v. Williams (1975), 60 Ill.2d 1, 322 N.E.2d 819; People v. Rodgers (1972), 53 Ill.2d 207, 290 N.E.2d 251.) Therefore, we need not decide whether the photographic identification was suggestive inasmuch as we find that the record in this case clearly establishes an independent basis for the in-court identification. People v. Scott (1st Dist. 1974), 23 Ill. App.3d 956, 320 N.E.2d 360.

• 3 A reviewing court must scrutinize all of the circumstances surrounding the identification procedure. The circumstances here are nearly identical to those in People v. Williams. In both cases the witness observed the defendant for at least 7 minutes at a distance of just a few feet, and throughout extensive cross-examination, remained positive that her in-court identification was based on her memory of the transaction at the bank and not on the photograph she had viewed earlier. Furthermore, in Williams, as here, both the photographic and lineup identifications were made when the witness' memory was fresh, and all three identifications were made positively and without hesitation. We think it also relevant that the perpetrators of a serious felony were still at large and in possession of a large sum of money so that it was essential that the police determine whether they were on the right track so that the defendant could be apprehended. See Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967.

We believe Williams is controlling in the case before us, and that Miss Roberts' in-court identification was admissible.

Defendant next complains that the State failed to sustain the burden of proving her guilty beyond a reasonable doubt in view of her alibi evidence which, she argues, raised an affirmative defense. Section 3-2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 3-2) provides in part:

"(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue ...

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