APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT L. GAGEN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant Willie Hatcher appeals from his conviction of armed robbery after a jury trial in the Circuit Court of St. Clair County. He contends that pretrial identification procedures were so unnecessarily suggestive and conducive to mistaken identification as to deny him due process of law; that the trial court erred in allowing the admission of evidence of an offense other than the one for which he was being tried; and that he was not proved guilty beyond a reasonable doubt.
About 11:30 p.m. on June 8, 1974, the A & S Barbeque Stand in East St. Louis was held up by two men armed with small-caliber handguns. The robbers kicked in the rear door to the kitchen, received assurances that there was no gun on the premises, and ordered the four people present (the manager, his wife, and two other women) to get down on the floor. After a period of time estimated by the victims to be four to seven minutes, the robbers left with the women's purses, the manager's wallet, and the night's receipts from the cash register.
Twenty days later, on June 28 at about 4 p.m., the defendant and a female companion were arrested at a drive-up window of the First National Bank at East St. Louis after presenting for payment two checks on Mrs. Adams' account. The checks had been in Mrs. Adams' purse which was taken in the robbery.
The next day, June 29, at about 10 a.m., Detective Conrad Williams of the East St. Louis Police Department, who was investigating the armed robbery, telephoned Mrs. Adams and asked her to come down to the police station, purportedly to examine the signatures on the checks. About 11 a.m., when Mrs. Adams arrived along with her husband and Willa Tooks, another of the robbery victims, Detective Williams was seated at a desk taking a statement from the defendant. He had started taking the statement at 10:40 a.m., and concluded it at 11:55 a.m. According to Detective Williams, he immediately escorted the Adamses and Miss Tooks into another room, where Mrs. Adams informed him that the man at the desk was the one who had held a gun on her during the holdup.
At the hearing on defendant's motion to suppress identification, the defense called four witnesses, Mrs. Adams, Detective Williams, Willa Tooks, and the defendant. Because of certain conflicts in the testimony, it is necessary that we recite it at some length.
Mrs. Adams testified that she had been to the police station to look at photographs, along with her husband and Willa Tooks, about a week after the robbery. At that time she picked out the photograph of one man who looked "similar" to one of the robbers, but did not make any positive identification. She was called by police on June 29 to look at more photographs. She went with her husband and Miss Tooks to the station, where they were met by Detective Williams. They looked at a stack of about 40 photos for 20 minutes to half an hour. She picked out one photograph at that time. She testified that Detective Williams asked her if she had noticed the man sitting at the desk in the outer room on the way in, but she had not paid any attention to him. On the way out, she noticed him, "but he made a point of hiding himself or hiding his face, and I really couldn't identify him, not at that time." She told Detective Williams that "I felt I could be sure one way or the other if I could see him in a lineup." The only identification she made that day was a photographic one. She did not look at any checks. Sometime late in September, about two weeks before the hearing on the motion to suppress, she was requested to attend a lineup "because, like at the police station, I felt that I could not make a positive identification of the man until I saw him in a lineup, and this was the purpose of it for me to really be sure." She "presumed" that the man she saw at the police station would be in the lineup, but she couldn't say that she "expected" to see him in the lineup. She "assumed" that one of the robbers would be in the lineup. She had known Willie Hatcher's name since the day he was arrested at the bank. She could not remember whether Detective Williams had informed her whose photograph she had selected on June 29. Detective Williams brought Mrs. Adams, her husband, and Miss Tooks to the St. Clair County Jail in Belleville for the lineup. She testified that the lineup was stopped (she was "pretty sure" it was after the third person) because the lights were not focused on the participants' faces. After Detective Williams adjusted the lights, the lineup began over from the beginning. At the conclusion of the lineup, Mrs. Adams asked that the men in the lineup turn around again as a group because she wanted to see their faces one more time. At this point she filled out a card identifying one of the men. She remembered commenting immediately afterwards that "you feed them well here, he's picked up a little weight." Detective Williams told her that the defendant had asked him if he had been picked. She could not remember whether the officer had told her that she had picked the defendant.
Detective Williams testified that his reports did not reflect any photographic identification procedures, either a week after the offense or on June 29. If any photographs had been shown, he would have made a record. He thought that there was a mug shot of Willie Hatcher on file at the East St. Louis Police Department. The witnesses were not shown any photos, because "we had been instructed when a person is incarcerated, you're not supposed to show their mug shots." When the witnesses arrived about 11 a.m., he took them to another room in the back of the detective section, because he did not want them to see the defendant. He did not recall asking Mrs. Adams whether she had noticed the defendant. According to his report, which he used to refresh his recollection, Mrs. Adams volunteered that the man he was talking to at the desk was the same man who had held a gun on her during the holdup. The witnesses were only at the station two or three minutes at the most. He did not remember telling Mrs. Adams what the defendant's name was, but he did tell her there would be a lineup with "the subject" in it. The lineup was stopped after the number two man because the lighting was improper, and then started over from the beginning. The delay was approximately two to three minutes. He did not remember whether the defendant was the number two man in the lineup. He said that a record of the lineup should be in his report, but no such record was ever produced. The defendant was picked at the lineup. Williams did not remember asking Miss Tooks and Mr. Adams to accompany Mrs. Adams to the station on June 29, as they would have no reason to look at the checks, but he did not ask them why they were there when they arrived. It had not occurred to him that Mrs. Adams was likely to arrive while he was interviewing the defendant.
Miss Tooks testified that she was twice requested to come down to the police station to look at photographs, and that Detective Williams was there on both occasions. He did not tell her that a suspect was in custody, nor did she hear him tell anyone else. Although she was present when Mrs. Adams picked out a photograph at the second viewing, she herself made no photographic identification. Both she and Mr. Adams looked at the photo that Mrs. Adams selected. She remembered telling Mrs. Adams that she was "pretty sure it was him." She did not hear Mrs. Adams identify the man at the desk as one of the robbers, though she did hear Mrs. Adams tell Detective Williams that "she couldn't be sure of the fella until she saw him in a lineup." She did not remember at what point the lineup was stopped. She remembered telling Mrs. Adams afterwards that she was "pretty sure" of the man she selected; she recognized him as the same man whose photograph Mrs. Adams had selected on June 29, although "he's different now, he's picked up a little weight and he has a mustache and he was clean shaved at the time that I saw him." Over objection, she was permitted to testify that her identification at the lineup had not been influenced by seeing the photograph.
Defendant Willie Hatcher testified that he saw the Adamses and Miss Tooks with Detective Williams on June 29. They passed by him on the way in and on the way out of the station. After the witnesses left, the detective "came back and told me, say * * * well, he hadn't told me right then I was involved in a armed robbery. He came back and said, to tell you the truth, this whole thing leads back to an armed robbery and these people right here just picked you out." He was the number two man in the lineup: "the moment they told me to turn around, step forward and face the front, they stopped the lineup there." When the lineup started over, he was required to step forward a second time.
The court then stated that it was granting the motion to suppress because of the "classic one on one identification" by Mrs. Adams at the police station. On the basis of Miss Tooks' testimony that she had made no identification at the station, her lineup identification was not suppressed.
At this point in the proceedings, defense counsel moved to dismiss the case for suppression by the police department of evidence favorable to the defendant, specifically, the failure of the police to supply to the defendant any information about the photographic identification procedures. "That would be critical information at a trial, whether or not the photograph identified was the defendant or not, and also who was identified the first time [the picture that Mrs. Adams said looked similar to one of the robbers], and also whether the photograph of the defendant was shown the first time and not identified." The assistant state's attorney stated in response to the motion that he had talked with Detective Williams, who was to bring the complete file on the case to court later that day. The court held that it was not in a position to rule as to whether or not there had been intentional suppression until the detective arrived with the file, but indicated that the State would simply "have to live with" whatever inferences favorable to the defendant the jury might draw from the conflicting testimony of Detective Williams and the other witnesses and the non-production of the photographs.
After a discussion off the record, Mrs. Adams was recalled by the State to testify as to the circumstances surrounding the armed robbery. She testified that the first of the robbers, "who was I know now Mr. Hatcher," entered with a gun in his right hand, came directly to her husband and told him "this is a holdup," and ordered everybody to get on the floor. She was about 10 feet from this man when he entered the back door of the barbecue stand. She said that the light in the room was good, perhaps not as bright as the courtroom, but adequate. She said there were about three hanging bulbs in a room whose dimensions were about 15 by 14 feet. It was possible to read by the light in the room. When her husband got down on the floor, she "got across him, on top of him, because of the way the man was holding the gun down on him. I felt he was going to shoot him in the head." She testified further:
"* * * [H]e came and stood with the gun on us and then he moved back and picked up the purse. I had a purse under the table. Mrs. Smith's purse was under the serving table and he picked up both of those purses, and he looked directly at me, and me at him, and I said please take the money out of the purses and throw them out in the street. And he said, yes, ma'am, and he stood there holding the gun on us and I just looked at him until the other man at the cash register emptied the cash register."
She estimated that the robbers were in the stand from five to seven minutes. She gave the following description, she said, to the investigating officers:
"I told them he was wearing one of the hats that many of the young men wear now that looks something like a fishing hat, and multicolored. And he's kind of thin, not heavy, but not thin, you know. Well, let me see * * * well, he's thin, like your size [referring to the public defender], thin features. And I told him what he was wearing, a T-shirt and sport pants. And he is dark in coloring, darker than I am. Very smooth skin. Clean cut. He had a natural, well kept. No identifying features on his face, like scars or anything. And very bright, clear eyes, and perfectly lined teeth, very white teeth. And very mannerable, for a burglar, you know. * * * And I can remember his height, he is about my height, possibly a little bit taller.
Later, she said that the robber might have been between five feet seven and five feet eight inches tall. She testified that "[h]is face is very distinctive to me, because if I close my eyes I can see it, I can remember him." Her conversation with the robber occurred while she was kneeling down on the floor to cover her husband. After Mrs. Adams repeated her estimate that the robbery took from five to seven minutes, defense counsel conducted an experiment in the course of which Mrs. Adams estimated that two minutes had elapsed after only 35 seconds. She said that the description she gave was the same one she gave to police on the day of the offense, and was not influenced by her later viewings of the defendant. She testified that the investigating officers took notes while she gave her description.
After arguments of counsel, the court held that it was going to allow Mrs. Adams to identify the defendant at trial as one of the robbers, based on its finding that there was a sufficient independent basis for the identification. Although noting that "the conduct or integrity of the East St. Louis Police Department leaves a lot to be desired as far as this case is concerned," the court denied the defendant's motion to dismiss, holding that the discrepancy between the witnesses' stories and that of the police "goes to the weight, not the admissibility."
Immediately after this ruling, the case went to trial. The State called six witnesses: the four employees of the barbecue stand, the cashier at the bank where the defendant attempted to cash the checks, and the police officer who made the arrest at the bank. Mrs. Emma Smith, who was working in the kitchen of the barbecue at the time of the robbery, testified that she stayed down on the floor during the robbery and did not try to look at or talk to the robbers. She was scared, and was unable to give any description. She estimated that the robbery took five to seven minutes. In an experiment conducted by defense counsel, she estimated that two minutes had elapsed after 28 seconds. She then conceded that the robbery could have taken place in quite a bit less than five minutes: "Something happens like that you're scared to death, you can't estimate just how long it takes them. It takes a good person to do that. But I know it was quick, they didn't tarry."
Leon Adams, the manager of the barbecue stand, testified that he saw the first robber come in with a gun and immediately obeyed the order to get down on the floor. His wife got down on her knees and leaned on him, with her hand on his head. He saw only one gun. He had no conversation with the robbers, and did not get a good look at them. He only saw them for two or three seconds as they came through the door. His wallet was taken from his back pocket. He was unable to give any description to the investigating officers. He remembered that the first robber had on a hat. He estimated that the whole incident lasted four or five minutes. He said that the room had four 75-watt light bulbs hanging from the eight-foot ceiling. He viewed photographs and attended a lineup, but was unable to make any identification.
Mrs. Adams testified that she was a school teacher, but was working with her husband the night of the robbery at the barbecue stand. She identified People's Exhibit No. 2 as her checkbook which had been in the purse taken in the robbery. She identified People's Exhibit No. 1 as three checks from the checkbook, which had been made out and signed by someone other than herself. During the robbery she primarily watched the first man who entered, with whom she talked, and never got a very clear look at the other robber. She indicated that she was referring to the defendant when she spoke of the first man to enter, but did not identify him by name. She estimated that the robbers were in the place for five to seven minutes. She said she talked to both of the investigating officers. She learned the defendant's name from a police officer who called to tell her that he had been arrested at the bank.
Miss Tooks testified that she had been helping out Mr. Adams by waiting on customers at the barbecue stand the night of the robbery. She was standing right by the back door when the robbers entered, and got a look at both of them. Both were carrying guns. She lay down immediately when ordered to do so, and had no conversation with either of the men. She had waited on one of the men, who had entered and ordered a sandwich half an hour or less before the robbery. She testified that she had identified the defendant as one of the robbers at a lineup. She estimated that the robbery took five minutes or a little longer. Although she saw the robber whom she identified as the defendant as he entered, she looked primarily at the other man. She spoke with one of the investigating officers, a woman. She told the officer that the robber whom she later identified as the defendant was about the size of the male investigating officer and had on a hat; the other robber had a goatee; their skin was very smooth, without any blemishes. She viewed photographs at the police station on two occasions. The first time, she did not identify anyone. Then, contrary to her testimony at the hearing on the motion to suppress, when asked whether she was able to make any mug shot identification on the second viewing, she answered:
Q. You did make a mug shot identification?
Q. Were there any officers present with you ...