Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Du Page County,
the Hon. Bruce R. Fawell, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Eugene Manion was convicted of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2) in a jury trial and sentenced to not less than 4 years' but not more than 12 years' imprisonment. The appellate court affirmed (40 Ill. App.3d 362), and we allowed defendant's petition for leave to appeal. The issues raised are whether the identifications of defendant were proper, whether the limitation on the presentation of his defense was correct, and whether he was proved guilty beyond a reasonable doubt.
Defendant contends that the one-man "showup," at which he was identified by two witnesses shortly after the robbery, was unnecessarily suggestive and violative of due process. Testimony about this out-of-court identification should not have been permitted, he contends, and the in-court identification of defendant by these two witnesses should not have been allowed because it was based on the showup.
At 3:50 p.m. on Monday, August 26, 1974, a man, armed with a gun and holding a shopping basket, demanded money from Denise Staniszewski, a cashier at Kresge's store in Oak Brook. Staniszewski testified that, as she was walking back to the cashier's cage from the register, she had noticed a man with a gray shopping basket talking on the telephone. The man followed her, appeared at the window of the cage, pointed a gun at her while holding the basket, demanded money, and left with $8,600, some of it in a white bag. (She did not actually see the robber place the money in the basket, the record indicates.) She saw only his face and the gun through the cage window, approximately 8 by 16 inches, and caught a glimpse of the robber through the window of the door to the cage. The whole area was well lighted, she said. Although unable to give a detailed description over the phone to the police immediately after the robbery, she had observed the robber's face twice during the ordeal and described him as middle-aged, not clean shaven, and with shorter hair. Ten to fifteen minutes after the robbery, she and another Kresge employee, Cheryl Brown, were asked to accompany Gary Daniels, an assistant manager of Kresge's, and a police officer, who stated police were holding a suspect, to the nearby Jewel parking lot to make an identification. Upon arriving, she saw a man in the back seat of a police car. She estimated she was within 14 feet of the suspect for three minutes or so when she identified him as the robber. Staniszewski admitted she was upset at the time and could "possibly" have been afraid to peer into the car because she was fearful of seeing the robber, but she had no doubt that the suspect in the car was the robber; and she had no doubt that the defendant, Manion, at trial was the same man who robbed her and whom she identified 15 minutes later.
Cheryl Brown testified that she had been working just inside the door of Kresge's when she first observed a man, six feet away, running slowly, carrying a Kresge shopping basket and wearing dark clothing with a white garment beneath the shirt. She observed the man 5 to 10 seconds. Gary Daniels was chasing the man she said. Ten to fifteen minutes later, a policeman took her and Staniszweski to the Jewel parking lot. They were accompanied by Daniels. After observing Staniszewski approach the squad car with a suspect in it, Brown came within five to six feet of the car and identified the suspect as the man she saw fleeing the store. She also testified that she was quite upset and spent a couple of minutes looking at the detained man and that he wore a white T-shirt which momentarily confused her. However, she testified she was certain of her identification and she identified defendant, in court, as the man who fled the store and who was seated in the squad car 10 to 15 minutes after the robbery.
The defense maintains that the unnecessarily suggestive nature of the identification resulted from the police stating to the two women, shortly after the robbery, that they were holding a suspect for identification and from seeing defendant handcuffed and alone in the squad car at the time of the identifications. Furthermore, defendant contends that since he was in custody, there were no exigent circumstances justifying the one-man showup. People v. McMath (1970), 45 Ill.2d 33, is cited by defendant as authority for this. Although it is true that such showups are not favored and are even condemned, they have been justified where it was uncertain a victim would survive, a witness had an excellent opportunity to observe the defendant during the commission of the crime, the identified person was known to the witness before the commission of the crime, the suspect had unusual distinguishing characteristics, or, as in McMath itself, prompt identification was necessary for the police to determine whether or not to continue their search. 45 Ill.2d 33, 36.
First, we believe the identification of defendant in the Jewel parking lot by the two women can be justified on the bases of both witnesses' opportunity to view the robber and of the facilitation of the police search. In People v. Elam (1972), 50 Ill.2d 214, a defendant was identified by a witness, who had been a passenger in a bus, while the defendant sat in a squad car with two policemen and another witness who had been driving the bus when the defendant robbed him. This court said such "prompt on-the-scene" identifications are "common in the apprehension of criminal offenders" and even necessary. (50 Ill.2d 214, 218.) This court, in Elam (50 Ill.2d 214, 218-19), cited People v. Young (1970), 46 Ill.2d 82, 87, which stated:
"Indeed, in our opinion, police officers who failed, in circumstances like these, to determine at once whether or not the victim of the crime could identify the men in custody as the men who had committed the crime, would be subject to criticism."
We believe the police acted properly, under the circumstances, in the case before us.
Both Staniszewski and Brown had the opportunity to see the robber inside the store. Staniszewski could plainly see his face through the window of the cage when he demanded the money and, almost immediately after, Brown had a frontal view of the robber slowly running and pursued by Daniels, as she testified. Defendant's brief points out that Brown was not a witness to the crime itself. Technically, that may be, but only seconds intervened between the crime and her view of the running suspect. Moreover, even if she did not have the opportunity to view the suspect during the actual commission of the crime, her identification would nevertheless corroborate those of Staniszewski and Daniels and Robert Kiefer, an assistant manager trainee at Kresge's. (The latter two chased the suspect through the parking lot outside Kresge's. Their testimony is discussed below.)
Second, we find that the recent decision by the United States Supreme Court in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243, necessitates rejection of defendant's arguments. In Manson, the Supreme Court unequivocally adopted the Stovall v. Denno ((1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967) approach of "totality of the circumstances" and rejected a per se approach to determine the admission of suggestive out-of-court identification evidence. The per se test would exclude identification or confrontation evidence "without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures." 432 U.S. 98, 110, 53 L.Ed.2d 140, 151, 97 S.Ct. 2243, 2250-51.
The Stovall test of totality of the circumstances, on the other hand, "permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability." (432 U.S. 98, 110, 53 L.Ed.2d 140, 151, 97 S.Ct. 2243, 2251.) In other words, evidence of an unnecessarily suggestive identification may nevertheless be admitted at trial if reliability of the identification, under the totality of circumstances, is shown. The Supreme Court in Manson further held that in assessing the reliability of an identification, the factors set out in Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L.Ed.2d 401, 411, 93 S.Ct. 375, are to be considered. Those factors are "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."
We have previously considered the first factor. The degree of attention of the two witnesses was more than casual or passing, since the suspect, for both of them, was the clear focus of their attention even if for only a short time. Although Brown did not give a description following the crime and Staniszewski testified she could not give a detailed one, the lapse of only 15 minutes at most would seem to justify the lack of detailed descriptions. As for the level of certainty of the two ...