APPEAL from the Circuit Court of Champaign County; the Hon.
FREDERICK S. GREEN, Judge, presiding.
MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The defendant, Jerry Dean Hahn, was indicted for the offense of burglary and convicted after a jury trial in the circuit court of Champaign County. Defendant was sentenced to the Illinois State Penitentiary for a period of 4 to 12 years.
Numerous questions are assigned as error. Defendant contends he was denied a fair trial on the grounds that: (1) the State's identification testimony should have been suppressed, since the identification procedure was unnecessarily suggestive; (2) during the testimony of a defense witness, a spectator stated that the witness was lying; (3) a certain photograph should not have been admitted into evidence, nor sent to the jury room; (4) defendant was not permitted to introduce evidence relating to measurements taken by an engineer and photographs of the scene; (5) the court excluded evidence that a defense witness made a prior statement, immediately after the defendant's arrest, consistent with his in-court testimony; (6) the prosecutor's conduct during final argument was prejudicial error; and, (7) the jury was not instructed upon a vital issue. Additionally, defendant claims the evidence was insufficient to sustain a conviction beyond a reasonable doubt, and urges remand for resentencing.
Officer Rinehart proceeded to the Second Chance Tavern in response to a burglar alarm which had been telephoned to police by a burglar alarm company. He checked doors, windows and the alley; about eight feet from the door to the furnace room of the building which housed the tavern, the door opened and he saw a man for two seconds. Officer Rinehart later identified the defendant as the man he had seen.
Officer Lynch pursued a man he saw fleeing, and later testified the defendant resembled the man he had been chasing. This identification was based on clothing similarity.
Defendant was arrested by Officer Blackman and Deputy Mumm, shortly after Rinehart and Lynch saw the man they later identified as defendant, several blocks from the Second Chance Tavern.
Defendant contends that the trial court committed error when it denied his motion to suppress the State's identification evidence. He argues that the identification procedures used here were unnecessarily suggestive, relying on Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Lee, 44 Ill.2d 161, 254 N.E.2d 469; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152. He claims the failure to conduct a lineup cannot be excused on the basis that there was need for prompt on-the-scene identification, and that the confrontation with Officer Rinehart at the police station affected Rinehart's in-court identification testimony.
1, 2 In Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967, the Supreme Court ruled that confrontation for the purpose of identification may be so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused is denied due process of law. Where a defendant has presented sufficient evidence to establish the unfairness of a pretrial confrontation, an in-court identification may be admitted into evidence only if it is shown that it has an independent origin arising from the witness' uninfluenced observation of the accused. (People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.) The State must prove the uninfluenced origin of the in-court identification by clear and convincing evidence. (People v. Holmes, 6 Ill. App.3d 254, 285 N.E.2d 561.) It is settled that even though an identification confrontation is improper or has been suppressed, an in-court identification is nevertheless admissible if it is based on a prior independent origin, one arising from an earlier uninfluenced observation of the suspect. People v. Spencer, 7 Ill. App.3d 1017, 288 N.E.2d 612; People v. Wright, 126 Ill. App.2d 91, 261 N.E.2d 445.
The identification procedure complained of here occurred at the Champaign police station some 45 minutes to one hour after the crime. Officer Rinehart testified that after he returned to the Champaign Police Station on the morning of the crime, he walked into the booking room and saw the defendant in the company of Officer John Lynch. He recognized the man in the booking room as the man he had seen by the furnace room door at the Second Chance Tavern approximately 45 minutes to an hour before.
Although argument is made as to whether this confrontation was accidental, we believe, in any event, no showing was made that this identification procedure was deliberately planned by the police. The identification process here was not ideal. In Stovall, the Supreme Court stated that, "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 not every viewing of a suspect or suspects alone will be considered a denial of due process. People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.
In this case, although Officer Rinehart saw the defendant in the doorway for approximately two seconds, the area was well lighted and the witness was standing only eight feet away. Rinehart testified that he had no difficulty in seeing the burglar's face and features. The witness was also quite clear as to how the defendant was dressed when he encountered him near the furnace room door.
3 We believe the evidence clearly and convincingly demonstrates that the witness had ample opportunity to observe the defendant and to remember what he observed. The identification by Rinehart is established to have been based on the witness' observations at the time of the crime, and therefore unaffected by the suggestive pretrial identification procedures. Significantly, when Officer Rinehart encountered the defendant in the booking room, the defendant was not dressed in the same way as he had been when Officer Rinehart had seen him at the Second Chance. The defendant was not wearing the gloves and coat worn by him at the time of the burglary. The record indicates that the defendant had been instructed to remove his outer garments by other police officers. These articles of clothing were in a pile in the booking room, but Officer Rinehart did not notice them until after he recognized the defendant.
We hold that the in-court identification had an independent origin, and the trial court properly denied the defendant's motion to suppress the identification evidence. See People v. Hanks, 17 Ill. App.3d 633, 307 N.E.2d 638.
Defendant also contends he was denied a fair trial on the basis of a spectator's statement, during the testimony of a defense witness, that the witness was lying.
During the testimony of James E. Mullins, a defense witness who was in the nature of an alibi witness, a courtroom spectator continued to state, "Lies, lies, that a lie. He's lying." Defense counsel heard these remarks, but made no objection, and the court did not, at this point in the proceedings, admonish the jury to disregard the spectator's comments.
Mullins was excused as a witness, and defense counsel called his next witness, William Sheridan. Sheridan began to testify, but, after objection by the People, was not permitted to testify further. During argument on this matter, outside the presence of the jury, defense counsel stated to the court:
"Mr. Harrington: Incidentally, also, your Honor, off the subject just a minute but one of the spectators in the courtroom just when I went out to get this witness [Sheridan] related to me that there is a gentleman sitting in the audience that all during Mr. Mullins [the last witness'] testimony, he said, `Lies, lies. That's a lie. He's lying.'"
Defense counsel argued the jury was able to hear the remarks. He stated that he had also heard the remarks.
The trial court ordered the person, who had told defense counsel she had heard the spectator's comments, to be examined under oath in chambers. This witness, who was the defendant's mother, stated that she had heard a spectator make the remarks. During cross-examination, the defendant's mother admitted that this spectator was sitting approximately as close to the prosecutor as he was to her. At that time, the prosecutor stated for the record that he had heard no such statements in the courtroom during Mullins' testimony. The trial judge, who had previously stated that he would admonish the jurors to disregard such remarks if the jurors had heard them, then said he would ask the members of the jury if they had in fact heard any remarks from any spectators during Mullins' testimony. After the trial judge and the attorneys returned to the courtroom, the trial court asked the jury as follows:
"THE COURT: Mr. Bailiff, would you step up here for a minute, if you will, please? Ladies and Gentlemen of the jury, did any of you hear any comments from the spectators with reference to the testimony of the last witness? If you did, please raise your hand. All right, none of you did, is that correct? All right, we will continue then."
The defendant, conceding that the court attempted to determine whether any jurors heard the remarks, contends the manner of inquiry was inadequate, since the court did not adequately determine whether the jury heard the objectionable remarks. The defendant points to the fact that Sheridan was the "last witness" before the court's inquiry of the jury. On this basis, the defendant argues that since the court questioned the jury solely as to what they heard in regard to the "last witness" this inquiry was insufficient because Mullins, during whose testimony the remarks were made, was not the last witness to appear before the jury.
4 The record discloses, however, that Sheridan was still sitting in the witness stand at the time the trial court made its inquiry of the jury, and therefore the court and the jury had to be aware that the court's mention of the "last witness" referred to Mullins, not Sheridan. The statement by the court was sufficiently definite to apprise the jurors of the incident, assuming they did in fact hear the remarks. Of course, if the jurors did not hear the spectator's remarks, at the most, the court's statement may have confused the jurors, but did not deny the defendant a fair trial.
The defendant next urges that the trial court committed reversible error by admitting a certain photograph into evidence, and compounded the error by permitting the photograph to be sent to the jury room.
Admitted into evidence, over objection by defense counsel, was a posed picture showing the defendant and Officer Rinehart pointing to certain ...