APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
E. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED OPINION OF THE COURT:
Harold Owens (defendant) appeals from an order dismissing his post-conviction petition. Defendant was originally tried by the court without a jury. On September 1, 1970, he was found guilty of murder and sentenced to 15 to 25 years. On appeal to this court the judgment was affirmed. (People v. Owens, 5 Ill. App.3d 420, 283 N.E.2d 292 (abstract opinion), leave to appeal denied, 52 Ill.2d 596.) A summary of the factual background of his conviction and of the various legal matters before us is essential.
On January 31, 1970, Richard O'Neil was shot and killed in the front room of a cocktail lounge on the south side of Chicago. The deceased had been accompanied by Carter Russell who was the only eyewitness that testified in the subsequent trial. On February 7, 1970, Russell told the police that the killer was a male Negro, 17 to 18 years old, five feet eight or nine inches tall, weight 140 or 150 pounds, complexion medium brown to fairly light and wearing a tan overcoat. He was shown a book with "a lot" of photographs but made no identification. That afternoon the police showed Russell a group of 18 photographs of various persons, all depicting three separate views of each of the subjects. Russell examined each of these photographs and, after one viewing, he identified one of them, that of defendant, as being the perpetrator of the crime.
Police arrested the defendant on Sunday, February 8. He was placed in an impromptu lineup with four other men, all darker and heavier than he. On May 27, 1970, defendant was indicted for murder.
At the trial, Carter Russell testified that he had accompanied the deceased and another person to the cocktail lounge. Russell remained in the main room while the other two went into a rear room for some time. The deceased then returned and spoke to Russell. Then "six or seven fellows" entered the lounge and walked directly to the back room. They returned shortly and one of them pointed out the deceased. One of these persons, identified by Russell as the defendant, Harold Owens, drew a gun and fired it. The witness testified that he heard two clicks but the gun did not fire. He testified that defendant then shot four more times and the weapon was discharged. The witness then "hit the floor" and all of the other persons ran out of the tavern. The witness saw no weapon in the hand of the deceased and heard no conversation between deceased and the other group. O'Neil died February 6, 1970.
Defendant denied guilt. He testified that he was in the basement of a home of a friend visiting one of her daughters on the day in question from 6 p.m. until 1 a.m. the following morning. He denied that he left at any time during that period. The home in question was approximately three blocks from the cocktail lounge. This testimony was partially corroborated by the mother of the friend with whom defendant spent the time in the basement. The mother was absent from the basement for a great part of the time in question. In stating his finding of guilt, the careful and able trial judge noted that the young lady did not testify although the record shows that she was physically present in the courtroom.
Defendant's case was capably and thoroughly presented to the trial court by his counsel. Defendant filed pretrial motions to suppress the identification on the ground that the police had suggested to the identification witness that the photograph of defendant be selected and also that the pretrial lineup violated his constitutional rights. After a full hearing, the court suppressed the evidence regarding the lineup but ruled that evidence of the identification by the photographs was competent and proper.
There was no evidence of suggestive conduct by the police with reference to selection by the identification witness of this photograph of defendant. The witness was subjected to a lengthy and thorough cross-examination. Counsel for defendant directed the attention of the witness to two particular photographs out of the group of 18. One of them was taken September 4, 1968. It has a pen and ink printed notation on the rear thereof showing that it depicts a man named Douglas Streeter. The other was taken February 10, 1969, and had defendant's name on the reverse side. The identifying witness selected the more current of these photographs and identified it as being that of the perpetrator of the crime. A police officer testified to some similarity of the other picture to the one selected by the witness as regards the jaw line, hair style and skin complexion. He stated that he had intentionally included both pictures for this reason. The witness, Carter Russell, testified that both pictures were similar but he was direct and positive in his identification.
Apparently all parties at the trial believed that the photos were actually of two different persons. The similarity in the photos was mentioned by counsel and commented on by the court. Apparently believing that this fact may have strengthened the Russell identification, counsel for defendant stated that he would withdraw the motion to suppress the photographic evidence but that he wanted all of the photos to remain in evidence.
At some point after the conviction of defendant and after his unsuccessful appeals, he or his counsel ascertained that the picture labeled Douglas Streeter was actually that of defendant. Accordingly on August 21, 1972, defendant filed a motion for new trial directing these facts to the attention of the trial court. (Ill. Rev. Stat. 1973, ch. 110, par. 72.) This petition does not appear in the record before us. In connection with hearing of this matter, the parties entered into a complete stipulation concerning the two photographs. They stipulated that the police had the entire group of 18 pictures in their possession because of membership of these men in street gangs. The mislabeling of one of these pictures, actually of defendant, under the name of Douglas Streeter occurred accidentally and as a result of mistaken use of the wrong Central Booking number by a lockup keeper. They stipulated that during the examination of all of the photographs by Carter Russell in the police station, he did not look at the reverse side of any of them. He did not know the name of either of the persons upon the backs of the photographs in question until he was cross-examined at trial. The parties further agreed that these facts came to light almost two years after defendant's conviction.
At the hearing of this section 72 petition, the trial court expressed the opinion that disclosure of the correct name of the subject of the other photograph would not have made any difference in the finding of guilt which he reached at trial. The court stated that the mislabeling error involved an earlier picture of the defendant and that this picture did not have a similarity to defendant as great as the picture that was actually selected by the witness. The court accordingly denied the motion for new trial.
The current petition for post-conviction relief (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 and following) was filed April 30, 1974. The People filed a motion to dismiss this petition setting forth that a notice of appeal had previously been filed from denial of the petition for new trial and that this denial was res judicata. In due course memoranda of law were filed and the motion to dismiss the post-conviction petition was denied. The People then filed an answer setting forth the prior adjudication alleging that the State should not be held responsible for the error in connection with the photographs and that the matters raised in the petition were evidentiary and procedural and did not enter into defendant's conviction. The parties agreed that there was no necessity for an evidentiary hearing in view of their stipulation regarding the photographs. After hearing arguments, the court denied the post-conviction petition.
In the briefs before us, defendant urges that he was denied due process of law because of negligent suppression by the State of the true identity of defendant as the individual appearing in the photograph labeled "Douglas Streeter." Defendant also urges that he was denied due process in that the photographic identification procedures were so impermissibly suggestive as to raise a substantial likelihood of misidentification at trial. The State responds with the arguments that failure to disclose the true identity of the subject of one of the photographs among those viewed by the identification witness did not deny the defendant due process of law since this fact was neither favorable to the defendant nor material to the issue of his guilt. Regarding propriety of the photographic identification, the State urges that since these two photos were dissimilar and since the identifying witness had an independent and sufficient origin for his in-court identification, defendant was not denied due process of law.
Considering first the last stated contention of defendant regarding alleged suggestiveness in the photographic identification, we cannot agree with the initial statement by defendant that the mistake in labeling one of the photographs "shielded from scrutiny the suggestive procedure whereby Russell initially identified * * *" defendant. It is correct that there are dangers inherent in this practice as there are in many actions by police and other agencies. Nevertheless, full weight must be given to the statement by our Supreme Court that, "The practice of showing photographs of suspects to witnesses is essential to effective law enforcement." (People v. Brown, 52 Ill.2d 94, 99, 285 N.E.2d 1.) The correct principle is that each case of photographic identification "must be considered on its own facts, and that convictions based on in-court identifications following a pretrial identification 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." Brown, 52 Ill.2d 94, 99, citing Simmons v. United States, 390 U.S. 377, 382-85, 19 L.Ed.2d 1247, 1252-54, 88 S.Ct. 967.
In the case before us, there is no evidence the police used suggestive methods or in any way influenced the witness in his identification. The witness gave an excellent and accurate description of the defendant to the police. He examined a large number of photographs and rejected them. He selected without hesitation the photograph of defendant appearing in the set of 18 pictures tendered to him. Defendant urges in his brief that the identification is unreliable because of the failure of Russell to see any resemblance between the picture of defendant and the erroneously labeled picture. This argument is contrary to the record. As shown, when Russell was cross-examined by counsel for defendant, he freely admitted that the ...