Appeal from the Circuit Court of Cook County; the Hon. VINCENT
BENTIVENGA, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1) and sentenced to a term of 5 to 15 years in the penitentiary. On appeal, he contends that (1) the trial court erred in denying his motion to suppress identification testimony, and (2) that the matter should be remanded for resentencing because in determining sentence the trial court considered a prior conviction which was subsequently reversed.
Prior to trial defendant moved to suppress identification testimony on the ground that the identifications of defendant resulted from a photographic display which was conducive to irreparable misidentification.
The following pertinent facts were adduced at the hearing on the motion to suppress.
John Brines, Evergreen Park Police Officer
On January 26, 1976, he began investigation of an alleged robbery at Holy Redeemer Church in Evergreen Park. Julia Wegner, a church employee, had reported seeing a very light complected black male in the church on January 24, 1976. She described this man as being approximately 6 feet 2 inches tall, weighing over 200 lbs, and wearing a short "afro." He was dressed in a brown jacket and checked pants. Sister Marietta, a resident of the convent, also reported seeing a black male with a close cropped "afro," beige or brown jacket and checked pants. The man she saw was carrying a valise or suitcase.
On January 26, 1976, another police officer accompanied Tom Donahue, who had also reported seeing the man in the church, Sister Marietta and Julia Wegner to the graphic arts section of the Chicago Police Department for the purpose of having a composite sketch of the suspect drawn. Between January 28, 1976, and March 5, 1976, Donahue, Wegner and Sister Marietta each viewed several hundred photographs or "mug shots" but were unable to identify a suspect.
On March 5, 1976, Secret Service Agent Axel Franzon informed him that defendant was in Federal custody. He and Officer Jerozal went to the Dirksen Federal Building in Chicago and obtained a photograph of defendant. He placed this photograph in a book with 11 photographs of different individuals. He could not recall which other photographs were placed in the book with defendant's, nor could he recall which of the other photographs were full-length, half-length or facial only. He could not recall whether the other photographs were front or side views nor whether they had identifying placards. The photograph of defendant, however, was unlike the ordinary "mug shot" in that it was a frontal view only and did not contain a placard.
On the evening of March 5, 1976, he and Jerozal brought the book to Sister Marietta and asked her to view the photographs. He did not intentionally make her aware that the photograph of a suspect was in the book. After a few minutes, Sister Marietta identified defendant as the man she had seen near the church on January 24, 1976. She stated she was positive.
The officers also took the book of photographs to Julia Wegner's home and to the firehouse where Tom Donahue was employed. Wegner was not able to make an identification. They told Donahue that a suspect was in custody and asked him to view the photographs. When Donahue identified defendant's photograph, Brines told him he had picked the suspect. Prior to March 15, 1976, he had not shown defendant's photograph to Wegner, Donahue or Sister Marietta.
On cross-examination, she stated that he chose photographs which "fit the suspect's physical properties as close as possible" to place in the book with defendant's photograph. The other photographs could have been viewed by the witnesses prior to March 5, 1976.
At approximately 9:45 a.m. on January 24, 1976, she was looking out the second floor window of the Holy Redeemer Convent which is next to the church. She observed a black male walking toward her on the sidewalk between the convent and church school. It was unusual to see a black person in the predominantly white neighborhood. The man was walking with his head erect and she was able to view his face for about 30 seconds. Shortly thereafter she was told by Sister Elam to be careful because a suspicious black man had just ...