APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty by a jury of the murder of John Thomas and attempt armed robbery. He appeals from his conviction.
The State's principal witness, Benton Fisher, testified that at approximately 3:30 p.m. the day of the incident, he was working near the meat counter in the back of a grocery store located at 3925 West Huron in Chicago, owned by his brother, John Thomas. Thomas was working in the front of the store near the cash register when three men entered the store. Two of the men remained at the front of the store while the third walked toward the back within a foot and a half of Fisher. After inquiring of Fisher about the price of meat, this man pulled a revolver and announced a stickup. Fisher identified this man at trial as the defendant, Steven Ganter.
While Fisher stood with his hands up, the defendant walked past him at close range and proceeded toward Thomas at the front of the store. Upon reaching Thomas who stood with his hands up, defendant shot Thomas twice. Thomas then grabbed defendant by the wrists, turning him so that defendant's face was visible to Fisher. Fisher pulled his own hand gun and shot defendant several times. When his gun jammed, Fisher ran into a back room, took a rifle and stood in the doorway of the back room. Upon hearing more shots fired, Fisher aimed and fired his rifle. The three offenders fled out the front door and headed east on Huron Street on foot. Fisher returned to the back room and attempted to contact the police. When he did not receive any answer from the police number, he called Mae Thomas, the victim's wife, and asked her to call the police. Mrs. Thomas testified that she received this call at 3:30 or 3:45 p.m.
Fisher gave the police the following description of the defendant when they arrived: A dark-skinned man 6 feet to 6 feet 2 inches, 170 to 180 pounds, wearing a black leather jacket with white threads, black pants, cap, and a white or grey pearl earring in his left ear. Later in the day Fisher accompanied two police officers to Franklin Boulevard Hospital. While in the waiting room, Fisher observed a black leather jacket and identified it as the one the offender had been wearing. Other testimony at trial established that the jacket belonged to the defendant.
Clifton Ely testified that on the day of the incident he lived at 625 North Springfield, about a block and a half east of the grocery store. Ely was at home when his son returned from work and called him outside where defendant was lying wounded. Ely placed the time at around 3:30 p.m., although an answer he gave to an ambiguous question on cross-examination indicated it might have been around 3 p.m. Ely testified that defendant was wearing a black leather jacket and an earring. Ely called the police and when they failed to arrive after 5 or 10 minutes, he and his son placed the defendant in their car and proceeded to the Franklin Boulevard Hospital.
Chicago police officer William Stump testified that he was driving an unmarked police vehicle about 7 or 8 blocks from the grocery store when he received a radio communication about the shooting. As he reached the store, firemen were removing Thomas' body. In the store he overheard an individual giving other policemen a description of the murderer. He then left the store to patrol the area. He was driving east on Huron when another car pulled alongside and attracted Stump's attention. A passenger in the car told Stump they had a wounded individual in the back seat. Stump saw the Elys in the front of the car and the defendant in the back. Defendant was slumped over and wearing a black leather jacket. The Elys followed Stump to the Franklin Boulevard Hospital. Upon arriving at the hospital, Stump arrested the defendant when he observed that the defendant met the description of the murderer. Stump noticed at that time that the defendant was wearing an earring in his left ear. At trial, Stump identified the defendant as the person he saw in the rear seat of the Elys' automobile, and stated that defendant's left ear had a hole in it.
The defense called the supervising nurse at Franklin Boulevard Hospital who testified that her report on the defendant was time-stamped 3:45 p.m. as the time he entered the hospital. Her testimony was that it was the hospital's practice to time-stamp a record as a patient was admitted, and that as a rule the time-stamp could not be off 5 minutes either way. She remembered neither the specific day in question nor who placed other information on the records relating to the defendant.
Defendant's first trial resulted in a mistrial when the jury failed to return a verdict. Prior to commencement of the second trial, defendant moved to suppress Fisher's identification testimony. At the hearing on this motion, Fisher testified that upon reaching Franklin Boulevard Hospital he was taken by a police officer into a room where the defendant was lying in a bed, and he identified the defendant as the person who killed Thomas. Fisher was then taken by police officers to other hospitals in the area where he looked at other patients. The trial judge concluded that suggestive procedures were used when Fisher identified the defendant at the hospital and, therefore, excluded this identification.
The State then offered evidence to demonstrate that Fisher could make an in-court identification independent of the suggestive procedures. Fisher testified that he talked to the defendant in the store at a distance of approximately 4 to 6 feet, that twice during the time the robbery was in progress, he was within one and one half feet of the defendant, and that when the shooting started, the defendant was 10 feet away. Fisher further testified that the incident took place during daylight and that the store lights were on. He stated that he observed defendant for 3 of the 5 minutes that the entire incident lasted. The trial judge prohibited defense counsel from cross-examining Fisher about lineups in which Fisher had viewed a co-defendant, and about what happened at the other hospitals Fisher visited after identifying the defendant at Franklin Boulevard Hospital. The court concluded that the description Fisher gave, the opportunity he had to observe the defendant and his proximity to the defendant during the robbery established an independent basis for an in-court identification.
The defendant moved prior to the first trial to suppress introduction of defendant's prior armed robbery conviction into evidence, and this motion was denied. At the second trial, defense counsel agreed to adopt all motions presented prior to the first trial and rulings thereon instead of repeating them at the second trial. The ruling on the motion regarding introduction of the defendant's prior conviction thus applied to the second trial.
The issues raised on this appeal are: First, whether the court erred in failing to suppress Fisher's in-court identification of the defendant and whether the trial judge at the hearing on the motion to suppress this identification improperly restricted the cross-examination of Fisher; second, whether the defendant was proved guilty beyond a reasonable doubt; third, whether the prosecutor's rebuttal argument was improper and prejudicial; and fourth, whether the court erred in ruling that defendant's prior conviction could be used to impeach the defendant if he testified at trial. The defendant also contends that his sentence of 20 to 30 years should be reduced because of the disparity between his sentence and that of his co-defendant.
1 Defendant contends that the State failed to sustain its burden of showing that Fisher's in-court identification had an origin independent of the suggestive identification procedures at the hospital. Where a pretrial identification confrontation is held to be suggestive, an in-court identification may nevertheless be admissible if it is shown by clear and convincing evidence that the courtroom identification had an independent origin arising from an earlier uninfluenced observation of the defendant. People v. Camel (1974), 59 Ill.2d 422, 431, 322 N.E.2d 36; People v. Blumenshine (1969), 42 Ill.2d 508, 513, 250 N.E.2d 152; People v. Cook (1969), 113 Ill. App.2d 231, 236-37, 252 N.E.2d 29.
The following criteria to be considered in determining whether an independent origin exists for an identification are set forth in Camel: Opportunity of the witness to view the accused at the time of the crime; the accuracy of the witness's prior description of the crime; the witness's degree of attention; and the length of time between the crime and confrontation. (Camel, at 432.) Although the identification of a defendant by the victim at a hospital was held suggestive in Cook, an independent basis for an in-court identification was ...