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People v. Griswold

OPINION FILED NOVEMBER 7, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WILLIAM GRISWOLD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.

MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Defendant William Griswold appeals from his conviction by a jury for armed robbery for which he was sentenced to not less than 15 years nor more than 30 years imprisonment.

According to the evidence introduced at trial, Police Sergeant Robert Keckler of the Bartonville Police Department was on patrol the night of December 23, 1975, when, because of a headache, he decided to buy some aspirin at Oakford's Super Value Store. As he started to turn into the parking lot adjoining the store, his way was blocked by a tan Ford automobile. He stopped and honked his horn until the car backed out of his way. For about 30 seconds, he viewed the driver of the tan car in the light of his headlights. Sergeant Keckler parked the squad car and walked toward the tan car on his way into the store. He observed the driver from the side for 20 or 30 seconds by the outdoor lights of the store, and he noticed the driver duck his head. The policeman went on into the store where Clark Eggers was in the process of robbing the store manager at gunpoint. When Eggers left the store with the manager, Sergeant Keckler ran outside after them. He saw Eggers get into the tan car, and he ordered the men to stop. As the car sped away, Sergeant Keckler fired a shot, and then pursued the robbers in his squad car. During the chase, Sergeant Keckler radioed for additional help and dodged at least four shots from the fleeing bandits.

After traveling about one-half mile, the robbers turned into a dead-end street, and their car crashed into a house. Sergeant Keckler saw the driver jump from the car and flee on foot into a wooded ravine. Sergeant Keckler arrested Eggers, recovered the money taken from the store, and then directed the unsuccessful manhunt for the missing driver. After his arrest, Eggers told the police officers that defendant was the driver.

When Sergeant Keckler returned to the police station about two hours after the robbery, another officer showed him a single photograph of defendant which Sergeant Keckler identified as the driver of the get-away car. Defendant was arrested two weeks later. After arrangements for a lineup were made and then cancelled because defense counsel was unavailable, Sergeant Keckler selected a more recent picture of defendant from a group of 10 photographs.

Defendant's first trial ended in a mistrial when the jury was unable to agree on a verdict. During that trial, defendant's motion to exclude Sergeant Keckler's identification testimony was denied. The State called Eggers who testified that defendant did not drive the getaway car but rather someone named "Joe" was the driver. The court rejected the prosecution's claim that Eggers' testimony was unexpected.

Upon retrial, defendant renewed the motion to exclude Sergeant Keckler's identification. At a pretrial hearing on the motion, Sergeant Keckler testified that he could identify defendant on the basis of his three observations of the driver on the night of the crime, and the motion to exclude was again denied.

At trial Sergeant Keckler testified as to the lighting, his observations of the driver, and the photographic identification. After identifying defendant in the courtroom, Sergeant Keckler stated that he had known defendant as a boy when he attended grade school and high school with defendant's brother. His testimony as to what occurred in the parking lot was corroborated by two disinterested eyewitnesses. The store manager also testified for the State, but Eggers was not called by the prosecution in this trial. Defendant presented no evidence. The jury returned a verdict of guilty, and defendant was sentenced to 15-30 years in the penitentiary. Defendant appeals from that conviction.

1. IDENTIFICATION

• 1 Defendant first contends that Sergeant Keckler's in-court identification was inadmissible because of his unnecessarily suggestive view of a single photo on the night of the robbery. As a general rule Illinois courts> have held the in-court identification to be admissible if it was based on an origin sufficiently independent of the photographic identification so as not to give rise to a very substantial likelihood of misidentification. (People v. Williams (1975), 60 Ill.2d 1, 322 N.E.2d 819; People v. Shelton (3d Dist. 1975), 33 Ill. App.3d 871, 338 N.E.2d 585.) The Supreme Court of the United States has recently rejected a per se rule of exclusion of identification evidence following unnecessarily suggestive confrontation procedures. In Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L.Ed.2d 140, 154, 97 S.Ct. 2243, 2253, the court stated:

"We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony * * *. The factors to be considered are set out in Biggers. 409 U.S., at 199-200, 93 S.Ct., at 382. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself."

• 2 Applying these factors to the case at bar, we find that Sergeant Keckler had ample opportunity to observe defendant for a total of about one minute in the parking lot under good lighting conditions. (See People v. Hahn (4th Dist. 1976), 39 Ill. App.3d 969, 350 N.E.2d 839, where two seconds was sufficient.) Furthermore, as an on-duty policeman, Sergeant Keckler had every reason to give defendant his close attention when he found his way obstructed into the parking lot at 11:30 p.m. Keckler was not a casual or passing observer. Certainly at the end of the chase, the pursuing officer would be attentive to the driver fleeing on foot, and his description of him as a "big man" was accurate for a man six feet tall and weighing 200 pounds. (Compare with People v. Sanders (1st Dist. 1976), 38 Ill. App.3d 473, 348 N.E.2d 229.) Sergeant Keckler indicated absolute certainty as to defendant's identity at both trials and during the hearing on the motion to exclude. The first photographic identification occurred about two hours after the crime when the police were trying to confirm Eggers' statement that defendant was his accomplice. Considering all the circumstances of this case, we find that Sergeant Keckler's testimony was of sufficient reliability to outweigh the corrupting effect of the suggestive identification itself, and we also find that his in-court identification was of sufficiently independent origin to be admissible. It would be difficult for us to say that under all the circumstances of this case there is "a very substantial likelihood of irreparable misidentification." (Simmons v. United States (1968), 390 U.S. 377, 384, 19 L.Ed.2d 1247, 1253, 88 S.Ct. 967, 971.) We are satisfied to rely upon the good sense and judgment of a jury, for evidence with some factor of unsureness is chronic grist for the jury mill.

• 3 After Sergeant Keckler's in-court identification of defendant, he testified that he had known defendant many years ago when attending school with defendant's brother. Defendant argues that evidence received after the in-court identification cannot be used to support the trial court's pretrial ruling on the motion to suppress, and we agree. (People v. Braden (1966), 34 Ill.2d 516, 216 N.E.2d 808.) As our discussion above indicates, we believe the evidence is sufficient to sustain the court's ruling without consideration of any boyhood acquaintance between the witness and defendant. Defendant also cites United ...


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