APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, JR., Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, Ernest Robinson, was charged with two counts of armed robbery. A jury found him guilty of those crimes and the court sentenced him to three to nine years. On appeal defendant contends that the trial court erred in denying his pretrial motion to suppress the identification testimony of two eyewitnesses, and that the court erred in denying his motion to suppress certain evidence seized in a search incident to his arrest.
On June 11, 1971, a wholesale grocer outlet in Chicago was robbed by several armed men. On June 25, 1971, another of the same company's outlets was robbed by armed men. (In these proceedings, we are concerned only with the robbery of June 11.) At trial, three witnesses, Larry Walsh, Socorro Gutierrez, and John O'Brien, identified defendant as one of the robbers in the June 11 occurrence. Witnesses at the second robbery informed police that a dark blue Mustang automobile was involved, and gave a partial license plate description. This information led police to defendant's residence approximately five hours after the June 25 robbery.
Defendant initially contends that the pretrial lineup identifications were so unnecessarily suggestive that the trial identification testimony should have been suppressed.
At the hearing on the motion to suppress that testimony, Larry Walsh testified that he first viewed a lineup at the police station at 8 p.m. on June 25, 1971. Walsh had been asked by the police to view some suspects. Three other employees of the grocer outlet also were present. Walsh viewed a lineup of four men. Each witness was asked individually if he recognized any of the four men. Walsh identified defendant, five feet one inch in height, as one of the robbers. The other men in the lineup ranged in height from five feet ten inches to six feet four inches. Walsh also identified one of the other men in the lineup as a participant in the robbery.
The following morning Walsh attended another lineup at the police station. He identified the same two men. He further testified that the police officers did nothing at either lineup to influence his identifications.
Walsh testified that on June 11 at a distance of about 15 feet he observed defendant for about ten seconds when the latter entered the store and talked with one of the cashiers. Walsh testified that he saw defendant re-enter the store about ten minutes later as a participant in the robbery.
Socorro Gutierrez attended only the first lineup conducted on the evening of June 25, 1971. She testified that she individually viewed the lineup of four men. She was asked by the police if she recognized anyone, and she identified defendant and one other man.
On June 11, 1971, the day of the robbery, Gutierrez observed defendant when he first entered the store for four minutes at a distance of three feet. The lighting was bright. She then had a conversation with defendant concerning the purchase of cigarettes for another three minutes. When defendant returned to the store several minutes later, the witness recognized him as the same man who just left the store.
Officer Richard Riccio of the Chicago Police Department testified that he conducted the lineup on the evening of June 25. The witnesses were brought in individually to view the lineup of four men. Defendant was approximately five feet tall, and the other three men were five feet ten or eleven inches.
Officer Robert Cozzi of the Chicago Police Department conducted the lineup on the morning of June 26. Seven men were in the lineup. Cozzi stated that at the time of the lineup there were no men in custody as short in stature as defendant.
Defendant testified at the hearing that he was placed in a lineup with eight or nine other persons on the evening of June 25. There were persons who were close to his height and size in the lockup, but the police did not use them in the lineup. Defendant further testified that he heard Riccio say: "Isn't that the guy? You said you needed a short guy, it was a short guy?"
The trial court denied the motion to suppress the identification testimony. At the time of the ruling, the trial judge stated it would be unreasonable to impose an obligation on the police in preparing a lineup to find persons as short as defendant.
1-3 We agree with the trial court that the lineup was not unnecessarily suggestive. (See People v. Lawless (1975), 31 Ill. App.3d 650, 334 N.E.2d 292.) We think that the judge correctly observed it would be unreasonable under these circumstances to expect the police to place another person as short as defendant in a lineup. More importantly, we hold that even if the lineups had been suggestive, the identification testimony was properly admitted since there was an independent origin for the identifications. Where a pretrial identification confrontation is held to be suggestive, an in-court identification may be admissible if it is shown by clear and convincing evidence that the courtroom identification had an independent origin ...