APPEAL from the Circuit Court of Madison County; the Hon.
WILLIAM L. BEATTY, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT: Robert Perkins and Michael Smith, defendants, were convicted by a jury for the armed robbery of Danny Roberts in Alton, Illinois. Both defendants were sentenced to the Illinois Department of Corrections for terms of not less than four nor more than five years.
In their appeal, defendants contend the trial court erred in refusing their motions to suppress certain identification testimony and in refusing to give their instruction on identification. Defendants also question the sufficiency of the evidence to prove them guilty beyond a reasonable doubt.
At the trial, Danny Roberts, the victim, testified as to the robbery. He stated that on July 8, 1975, about the time he was closing the service station for the evening (6 p.m.) he was approached by two young black men who asked if he could fix a tire. He claimed that he watched them as they first approached because he was "suspicious" of their activities. Shortly after he told them he couldn't fix a tire, they followed him into the station and started to push him. While he was defending himself, he was watching the face of the taller of the two until the second man began choking him. The taller man then put a gun to his head and took $120 from his pocket. After the two pushed him into a bathroom and fled on foot, Roberts stepped out and observed them running from the station.
Linda Reed testified that at about 6 p.m. on the day in question, she was in front of her house which is about one block away from the service station. She stated that she saw two black men run from the direction of the service station and get into a green Pontiac and drive away. She said that while she did not see their faces, she remembered that one of them was wearing a red shirt. Roberts had testified that the taller of the two was wearing a red shirt.
Detective Carl Logan of the Alton Police Department was the final witness for the prosecution. He testified about his response to the telephone call from Roberts reporting the robbery, and his receiving a description of the robbers and of the car used to leave the scene. Shortly thereafter, Detective Logan stopped two black men in a green Pontiac. These men were taken to the service station for Roberts to view, but he stated that they were not the same men.
Detective Logan stated that several days after the robbery he arrested the defendants while they were driving in a green Pontiac belonging to defendant Perkins. Pictures were taken of the defendants and Danny Roberts was called in to "see if he could pick out who robbed him." He was shown seven photographs of young black males and he picked the pictures of the defendants.
While Roberts testified at trial that the pictures of the defendants had irregular edges on them and the other pictures did not have irregular edges, he stated that there did not appear to be anything "unusual" about the photographs of the defendants when he viewed the pictures at the police station.
Defendants did not testify at trial. They called Linda Reed back to the stand and asked her to view pictures of the car defendants were arrested in. She testified that the car she saw the robbers in had a green top while the pictures depicted a car with a white top.
At a pretrial hearing on defendants' motions to suppress identification testimony, Detective Logan was the sole witness. He stated that a lineup was not conducted in this case because there were not enough black persons in the Alton jail for a lineup. He testified that the pictures of the defendants were not yet totally dry by the time Roberts viewed them, but they were dry enough to handle. Logan stated that Roberts knew that he had taken some photographs of two individuals he had arrested. The motions to suppress Danny Roberts' identification were denied.
At the instruction conference the defense tendered a non-IPI identification instruction that was about 2 1/2 pages long. The trial court refused it on the grounds that it was repetitious within itself and repetitious of the other instructions.
The jury returned verdicts of guilty and judgments were entered accordingly.
Defendants' first contention is that their motions to suppress Danny Roberts' identification should have been granted. This contention is based on the theory that the pretrial photographic identification was unduly suggestive and it irreparably tainted Roberts' subsequent identifications of the defendants in court.
• 1 In support of this contention, defendants in their brief cite Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968); People v. Lee, 54 Ill.2d 111, 295 N.E.2d 449; People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634; and People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152. These cases accurately give the state of the law on identification procedures: if a pretrial identification procedure is so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable misidentification, then testimony regarding the pretrial identification is inadmissible, and subsequent identifications are admissible only if the State establishes by clear and convincing evidence that the subsequent identifications are based on a source independent of the tainted procedure. While we concur with the principle elucidated in these cases, either the factual situations are distinguishable from the present case, or the cases give support to the State's position.
In Simmons the United States Supreme Court was faced with a contention that an in-trial identification was based on impermissibly suggestive photographic identifications. In that case several bank employees viewed six pictures, consisting mostly of group photographs of the two defendants and others. All of the employees picked out Simmons' picture. At trial the government did not introduce the photos but relied upon in-court identifications by the eyewitnesses. While they reversed on ...