APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, JR., Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Cook County, after a jury trial, convicting the defendant, Raymond Banks, of murder and multiple counts of attempt armed robbery, attempt murder and aggravated battery. He was sentenced to one term of imprisonment of 75 to 100 years in the State penitentiary for murder, and to seven concurrent terms of imprisonment of 6 to 18 years for the other offenses, with no sentence imposed for aggravated battery. From these convictions the defendant appeals.
The issues presented for review are (1) whether the trial court erred in denying the defendant's motion to suppress identification testimony, (2) whether the defendant was proven guilty beyond a reasonable doubt, and (3) whether the convictions for aggravated battery must be vacated because of the lack of sentencing thereon.
The defendant was charged by indictment for the murder of Juan Hilario; the attempt murder of Amando Pagan and Artemio Ortiz; the attempt armed robbery of Juan Hilario, Amando Pagan, Artemio Ortiz, Luis Gonzalez, Marcos Portalatin and Aueraldo Acevedo and the aggravated battery of Amando Pagan and Artemio Ortiz. The defendant entered a plea of not guilty. After a hearing on a motion to suppress identifications, the jury trial commenced on April 18, 1977. The People withdrew the counts charging the defendant with the attempt armed robbery of Marcos Portalatin and the aggravated battery charges alleging great bodily harm to Amando Pagan and Artemio Ortiz. The jury found the defendant guilty on all remaining counts. The court sentenced the defendant to 75 to 100 years in the Illinois State Penitentiary for murder and to seven terms of 6 to 18 years for the attempt murder of Amando Pagan and Artemio Ortiz and the attempt armed robbery of Juan Hilario, Artemio Ortiz, Amando Pagan, Luis Gonzalez and Aueraldo Acevedo. The sentences are to run concurrently.
On December 3, 1976, the defendant filed a motion to suppress identification. The defendant maintained the in-court and out-of-court identifications were the product of suggestive procedures. The defendant also maintained there was no independent basis for an in-court identification of the defendant. A hearing on the motion was commenced on April 11, 1977, and testimony was taken.
On March 3, 1976, after finishing work, Amando Pagan and Artemio Ortiz went to the Conales Club Tavern at 2525 West Division Street, in Chicago. About 10 minutes after arriving, they heard the front door open and observed a man walk into the tavern. Mr. Pagan testified he looked at the man's face, and nothing was blocking his view of the man. When the man walked behind Mr. Pagan, he pulled Mr. Pagan away from the bar stool and pushed him forward into the bar, so Mr. Pagan ended up in a "catcher's position" on the floor. When Mr. Pagan was in the "catcher's position" he turned and was able to see a gun in the man's right hand.
After this altercation, the man walked past Mr. Pagan and fired a shot toward the west wall of the tavern. After the first shot was fired, the man said "Nobody move; this is a hold-up." At that time, Juan Hilario, who had previously been sitting at a table at the end of the bar playing dominos, stood up. When he stood up, the man who had just previously entered the tavern shot him.
Amando Pagan stated when the man shot Hilario, he could see the side of the man's face. The shooter then started to run sideways toward the front door. When the man reached the front door, he fired at Mr. Pagan and Mr. Ortiz, wounding them both. Mr. Pagan stated he saw the man's face for about two to four minutes.
Artemio Ortiz testified he was in the tavern on the night the shooting occurred, and testified further to substantially the same facts as Mr. Pagan.
After the shooting, Mr. Ortiz told the police the man weighed about 167 pounds and was about five foot seven. He told the police the man was wearing a dark brown jacket and appeared to be about 25 to 30 years old. Mr. Pagan described the man's height as five foot eight to five foot nine and his weight as 170 to 180 pounds.
Investigator Steven Barnas of the Chicago Police Department testified he was assigned to investigate the death of Juan Hilario. At about 7:30 p.m. to 8 p.m. on April 21, 1975, investigator Barnas interviewed Mrs. Banks, the defendant's mother. Mrs. Banks gave investigator Barnas the defendant's address and a small photograph depicting the defendant with another person. Investigator Barnas took the photograph of the defendant and proceeded to the Conales Club Tavern.
When investigator Barnas arrived at the tavern, he showed it to Artemio Ortiz. Mr. Ortiz said it resembled the man who had done the shooting. Investigator Barnas also showed the photo to Mr. Acevedo while at the tavern. He said "It looks like the man."
On April 22, 1975, investigator Barnas went to Amando Pagan's house for the purpose of showing him the photo. Mr. Pagan said the photo resembled the man.
Chicago Police Officer Thomas O'Connor testified he was assigned to investigate the death of Juan Hilario. Officer O'Connor stated he had been apprised of the results of an earlier investigation and was informed of a possible identification of a suspect. He also learned a photograph of the defendant was at Area Four Homicide. At that time, Officer O'Connor was given five or six photos of the defendant, from which he picked one to show witnesses. He also selected four or five photos depicting other people, for viewing with the photo of the defendant. After obtaining these photos Officer O'Connor went to see Mr. Pagan and Mr. Ortiz. Mr. Pagan viewed five or six photos, one of which was of the defendant, and singled out the defendant as the man whom he saw enter the tavern and fire the shots. Officer O'Connor also showed the photos to Mr. Ortiz, who identified the defendant's photo as depicting the man who did the shooting.
Amando Pagan and Artemio Ortiz both testified they viewed some photos and identified the defendant's photo as the man from ...