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People v. Miller

OPINION FILED DECEMBER 2, 1977.

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

v.

RAY MILLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SAUL EPTON, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of arson (Ill. Rev. Stat. 1975, ch. 38, par. 20-1(a)) and sentenced to a term of five to 15 years in the Illinois State Penitentiary. On appeal he contends that: (1) the trial court committed prejudicial error when it permitted the jury to hear evidence of fires which occurred several days after the arson, (2) his right to due process of law was violated when he was identified in an improperly suggestive lineup by an eyewitness who had a limited opportunity to observe, and (3) the sentence imposed was excessive.

The following pertinent evidence was adduced at trial.

For the State

John DeGuide

He is the current owner of Royal Television and Stereo, which is also referred to as Royal T.V., and the former owner of a hot dog stand located at 806 Waveland. In February 1975 he and defendant argued over his discharge of defendant's girl friend, Dana Ball, from his employ. Defendant then broke one of Royal T.V.'s plate glass windows. On May 11, 1975, the hot dog stand burned down. On May 16, 1975, there was a fire at Royal T.V. and he found that some newspapers and other debris had been stuffed inside the store through a mail slot.

On cross-examination he admitted that he neither was present when the fire at the hot dog stand started nor did he see anyone start the fire.

Harvey Lemke

He lives in Chicago and works as a newspaper deliveryman. On May 11, 1975, at approximately 3:30 a.m. he was walking towards the office where he picks up his newspapers when, from a distance of approximately three car lengths, he saw defendant knocking on the window of the hot dog stand located at 806 Waveland. He told defendant that there was nobody there. Defendant broke the window with his left elbow, made a motion of throwing something inside, and walked away towards the alley. He went to his place of business and called the fire department. After he finished delivering his newspapers he went back to the hot dog stand. Three or four fire trucks were there and the building was all burned up. On May 16 he viewed a five man lineup. He picked defendant out of the lineup and identified him as the man he had observed at the hot dog stand on May 11.

On cross-examination he admitted that on May 11 at 3:30 a.m. it was dark outside, but explained that he could see because there was a light in a nearby alley.

Robert Schmidt

He lives on the third floor of the same building which houses Royal T.V. He awoke on May 16 at 3 a.m. and smelled smoke. He and some neighbors went outside and found that a door in the service alley, which from the outside would appear to be the rear door to Royal T.V., was burning. He walked to the front of the building and from close range observed defendant walking back and forth in front of the courtyard. Defendant then walked up to the service entrance and down the street. He went back up to his apartment where he heard a noise. Looking outside, he saw defendant running through the serviceway. He went downstairs into the courtyard and saw defendant standing on the corner across the street from the building. The next time he saw defendant was at approximately 5 p.m. on that same day when, without any assistance, he picked defendant out of a lineup.

On cross-examination he admitted that he had no knowledge whatsoever about a May 11 ...


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