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People v. Flemming





APPEAL from the Circuit Court of Champaign County; the Hon. FREDERICK S. GREEN, Judge, presiding.


Rehearings denied May 23, 1977.

This appeal is from the judgments of the Circuit Court of Champaign County after two jury trials, the first finding defendant George Flemming fit to stand trial and the second finding defendants, George Flemming and Rosemary Scales, guilty of armed robbery. Defendants were each sentenced to terms of 4 to 12 years in the penitentiary. We affirm the convictions.

The issues presented on this appeal are: (1) whether the trial court committed reversible error by denying the motions of defendants George Flemming and Rosemary Scales to suppress the identification testimony of witnesses Shelby and Koste on the ground the show up confrontation held at the scene of the arrest was impermissibly suggestive; (2) whether the trial court erred by refusing Flemming's request that his competency hearing be continued; (3) whether the trial court improperly refused to allow Flemming to file a post-trial motion at the conclusion of the competency hearing; (4) whether the trial court wrongfully denied Flemming's motion for a continuance of the trial on armed robbery charges; (5) whether the trial court abused its discretion by refusing to order a second competency hearing for Flemming during the armed robbery trial; (6) whether the trial court abused its discretion by denying Rosemary Scales' motion for severance; and (7) whether the trial court erred in striking the testimony of the character witness for defendant Scales.

On September 17, 1972, at about 11:30 p.m. on the campus of the University of Illinois, two students, Hugh Koste and Lori Shelby, were walking together along a campus sidewalk when they saw two persons walking toward them, one rather tall and the other considerably shorter. The shorter one had a bandanna covering his or her face and the tall one had something like a handkerchief covering his face. Approximately 30 feet from a well-lit parking lot Koste and Shelby were stopped by these two persons and robbed at gunpoint. The two assailants fled on foot.

Shortly after the robbery Koste phoned the police from a student dormitory and gave a description of the two assailants. Some ten minutes later a police officer arrived at the dormitory to interview the victims. During the interview the officer received a radio communication that the two suspects were seen getting into a white Ford. The officer then drove Koste and Shelby toward the area where the suspects were reported to be. Koste testified that a white Ford pulled in front of the police car in which he and Lori Shelby were riding, that they followed behind it, and that he assumed the people in the white Ford were the assailants. The Ford was stopped and surrounded by other police cars that arrived on the scene.

The victims participated in a show up with the two suspects standing together in the street in front of the headlights of one of the police vehicles. Both victims immediately identified defendant Flemming as the tall robber. Defendant Scales was subsequently identified as the smaller assailant. During this show up the two victims remained seated together in the squad car which was approximately 35 to 50 feet from the two suspects standing in front of the headlights. Lori Shelby testified she and Koste were in the police car the entire time while the suspects were in the headlights and that, while they were sitting in the car viewing the two suspects, she saw police officers looking in the white Ford and removing objects from it. Included among the objects were a .32-caliber revolver, some .32-caliber bullets, a dark hat, a shirt, a gas mask, Tony Koste's wallet and Lori Shelby's purse.

Tony Koste testified the taller assailant (Flemming) was six feet to six feet two inches. The entire robbery incident lasted no more than five minutes during which time Koste directed most of his attention to the taller assailant. He testified that during the robbery the taller assailant stepped between him and Lori Shelby and stood face to face with him only six inches apart. He looked directly into the eyes of the taller assailant. Lori Shelby also testified that she directed most of her attention to the taller person.

Koste stated that his view of the shorter individual and Lori Shelby was blocked by the taller assailant, and that he could not determine the sex or build of the shorter person. When he made the phone call to the police shortly after the robbery, he stated they had been robbed by two black males. Lori Shelby, however, had observed the smaller assailant who had stood near her pointing a gun, and testified that she mentioned to Koste the shorter person might have been a girl. Since the smaller person wore a hat, bandanna, and rimmed glasses at the time of the attack, only a small portion of the face was visible. Koste testified the shorter person was dressed in dark baggy clothes but admitted stating to the police over the phone that both assailants were wearing blue jeans and blue shirts. Koste testified that when he and Lori Shelby were sitting in the car with the headlights on the two defendants, they exchanged ideas as to whether the shorter person might have been one of the assailants. Koste stated they were unsure about the shorter one. Shelby testified the dress of the smaller person standing in the headlights of the police car was different from that worn by the shorter assailant at the time of the armed robbery. At the showup the smaller person, identified as Rosemary Scales, was not wearing baggy clothes. Koste testified that during the showup Scales was not wearing the same jacket as the shorter assailant at the scene of the robbery and was not wearing glasses, but was wearing a short sleeve loose sweater and brown slacks. Shelby testified that the hat which was taken from the white Ford might have been the one worn by the smaller assailant but she thought the hat on the smaller person at the time of the armed robbery was lighter in color. It was her recollection that the shirt worn by the smaller person was lighter in color than the one taken from the car, and she was not certain if the shirt was that worn by the smaller assailant.

Koste testified that, if the items had not been found in the white Ford, he might have to change his opinion as to his identification of Scales. He concluded his testimony regarding the identification by stating that his identification was based on what occurred at the scene of the robbery as well as the showup, but that he was still not positive. Lori Shelby testified she was not sure whether the smaller of the two assailants was actually present in court, but did testify, over defense objection, that defendant Scales strongly resembled the smaller assailant. On cross-examination, she stated that she was not certain as to the courtroom identification of defendant Scales and that she had told the police she would recognize the taller of the two assailants.

• 1 Defendants contend that it was reversible error to deny their motions to suppress the identification testimony of witnesses Shelby and Koste on the ground the showup confrontation held at the scene of the arrest was impermissibly suggestive. The practice of holding a showup for the victim of a crime immediately after the arrest of the suspect and a short time after the commission of a crime has been approved as proper police procedure. (People v. Heath (4th Dist. 1976), 35 Ill. App.3d 880, 342 N.E.2d 452; People v. Bey (1972), 51 Ill.2d 262, 281 N.E.2d 638; People v. Higgins (1972), 50 Ill.2d 221, 278 N.E.2d 68, cert. denied, 409 U.S. 855, 34 L.Ed.2d 100, 93 S.Ct. 195.) A showup conducted soon after the commission of the offense permits the victim to make an immediate identification while his memory is fresh and allows the police either to effect an immediate arrest of the offender or to release the suspect and continue the investigation without delay. (People v. Hudson (1970), 46 Ill.2d 177, 263 N.E.2d 473; People v. McMath (1970), 45 Ill.2d 33, 256 N.E.2d 835, cert. denied, 400 U.S. 846, 27 L.Ed.2d 83, 91 S.Ct. 92; People v. Prignano (1st Dist. 1971), 2 Ill. App.3d 1063, 278 N.E.2d 128, cert. denied, 409 U.S. 851, 34 L.Ed.2d 94, 93 S.Ct. 62.) Bearing in mind that showups are an approved practice, the test is whether the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the suspect was denied due process of law. People v. Ellis (3d Dist. 1974), 24 Ill. App.3d 870, 321 N.E.2d 722.

In the case at bar, when defendants were removed from their car and stood in front of the headlights, both victims immediately identified defendant Flemming. The identifications were positive and occurred long before the police searched defendant's car and found the items taken in the robbery. We conclude, therefore, that the identifications of defendant Flemming cannot be deemed the product of a procedure unduly suggestive and conducive to irreparable mistaken identification.

Furthermore, since in all showups the police must either transport the victim to the suspect or vice versa and since the police presumably do not randomly subject citizens to showups, the fact that the victims were aware that they were following persons suspected of being the robbers is of little or no significance. The facts that the robbery was committed at night and that defendant Flemming was not wearing a mask at the showup, while perhaps affecting the weight to be given to the identification testimony, certainly do not detract from its admissibility, nor render the procedure unduly suggestive. Upon review of the totality of the circumstances, the identifications of defendant Flemming were properly admitted into evidence by the trial court.

The showup identifications of defendant Scales, it is argued, were more suggestive and influenced in some degree by the surrounding circumstances. However, both identifications of Scales were weak and uncertain and at best indicated that she fit the general description of the other robber. Both victims were consistent in their identifications from the ...

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