APPEAL from the Circuit Court of Sangamon County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was charged with information in the circuit court of Sangamon County with two offenses of robbery. After a jury trial he was found guilty and sentenced to imprisonment for 6 to 18 years, such sentence to run consecutively to a 2- to 12-year sentence for which he was on parole at the time of the offenses charged herein. This appeal followed.
On appeal defendant raises three issues: (1) error of the trial court in failing to suppress evidence of defendant's identification pretrial by the victims; (2) error of the trial court in failing to suppress evidence of identification since it was the poisonous fruit of an illegal arrest; and (3) error of the trial court in failing to exercise its discretion under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 120.1 et seq.).
Since defendant does not challenge the sufficiency of the evidence to convict, only a brief resume will be required. Further exposition of the facts will be made only to clarify certain areas in this opinion.
The victims, husband and wife, had been in a Springfield tavern and upon leaving were about to enter their automobile. A man rushed up and seized the wife's purse and pulled her to the ground. He then threw the purse to two girls who were standing nearby. One of the girls removed the wife's billfold from the purse and the husband seized it back from her. The assailant then knocked the husband to the ground, seized the wife's billfold, took the husband's billfold also, and then departed. The husband was knocked unconscious when he hit the ground.
The trial court held a hearing on a motion to suppress identification; a summary of the evidence adduced is as follows. When the husband regained consciousness at the scene, he saw his wife talking to a policeman. She gave him a physical description of the robber as being a 6 foot 2 inch black male weighing about 205 pounds, wearing a colored shirt and some sort of a necklace.
The incident happened about 7:15 p.m. and at about 3 a.m. the following morning the police came to the victims' residence with some nine mug shots; at that time they told the victims that they had a suspect in custody. While the victims were not so told, the defendant's picture was one of the nine.
The husband said that he observed the robber from about 10 to 12 feet away for about four or five seconds. The wife said she got one good look at the robber when he was getting ready to run and this was from about 2 to 3 feet away. Both victims picked the defendant's picture from among the mug shots shown to them.
In making the identification both victims emphasized the light skin color and "glary" eyes. They also mentioned his beard and moustache, but attached less importance to them than to the skin color and the eyes.
Later in the day a lineup was held with three persons in it, one of whom was defendant. All three were black but only one other had a moustache; only defendant had a full beard. Both of the victims, upon viewing the lineup separately, identified defendant.
The trial court first found the identifications to be suggestive, but upon receiving the testimony of the victims that the beard did not play an important part, but that the skin color and the "glary" "wild" eyes were the most significant characteristics to them, the trial court denied the motion.
The police officer conducting the lineup testified that ordinarily he prefers to have five individuals but on this occasion his superior told him to use three. He thought that the lineup was fairly conducted.
Concerning the first issue, viz., identification: our supreme court in the recent case of People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, following Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243, adopted the totality-of-circumstances test in determining whether an out-of-court identification is too suggestive. Quoting from Manson, the court said that the factors to be considered are:
"`[T]he 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 ...