APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Earnest Daniels, defendant, was charged with two counts of aggravated battery in violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par 12-4), and one count of attempt murder in violation of section 8-4 (Ill. Rev. Stat. 1971, ch. 38, par. 8-4). After a bench trial in the circuit court of Cook County, he was found guilty of two counts of aggravated battery and sentenced to a minimum of 1 year and a maximum of 2 years in the Illinois State Penitentiary.
The issues for review are whether defendant was accorded due process of law, and whether he was convicted of aggravated battery beyond a reasonable doubt where his in-court identification was based on a prior out-of-court identification.
Ms. Rhonda Collins testified that on November 25, 1973, at about 7:30 p.m., she went to the T & T barbeque restaurant located on 95th Street, in the city of Chicago. After she placed her order, two men entered the restaurant, one of whom she later identified as the defendant. Ms. Collins testified that defendant approached her left side and began blowing smoke from a cigarette in her face, to which she gave no response. After several minutes passed, he proceeded to blow smoke in her face from her right side. During this occurrence, Ms. Collins was given several opportunities to view defendant's face. A few minutes later, defendant hit her in the mouth. She then began to slap defendant about the face with her hands. Ms. Collins stated that defendant pushed her back, pulled a gun and shot her in the upper right chest area. Ms. Collins fell to the floor, and defendant and his companion stepped over her and ran out of the restaurant. Ms. Collins got up and went to the door; from there, she saw the two men running to the rear of a house across 95th Street.
The police arrived shortly thereafter and asked Ms. Collins to show them where she had seen the men run. She showed the police into which house her assailants had run, and the police entered the house. Ms. Collins was taken to the hospital by another police vehicle.
Shortly thereafter, the police took defendant and his companion to the emergency room where Ms. Collins was being treated. Ms. Collins stated that one of the officers said, "I think we found the boys. Which one shot you?" She replied, "That one," referring to defendant.
In a pretrial hearing, the court ruled that the hospital identification procedure was unnecessarily suggestive and would therefore be suppressed. The defendant also made a motion to suppress the in-court identification, but the court found there was sufficient evidence of an independent origin for an in-court identification.
Officer Robert Marchese testified that at about 8:15 p.m. on November 25, 1973, while patrolling in his squad car, he received a call to go to a barbeque restaurant at 225 West 95th Street. When he arrived, he found that Ms. Collins had been shot and asked whether she knew who shot her. She responded that she knew, and that the offenders went across the street into a building.
Officer Marchese further testified that Ms. Collins gave him a description of her assailants. The taller one had a medium afro hairstyle and was wearing black pants and a three-quarter length black jacket. He was about 20 years old and heavier and darker-skinned than his companion. She described the other assailant as wearing dark-colored pants and a short Eisenhower-type jacket. The officer drove Ms. Collins to the house into which she indicated they had run. The police were allowed to enter the house and found defendant and his companion. First, the police took the two men to the barbeque restaurant where the shooting occurred. After they left the restaurant, the police took the two men to the emergency room of the hospital where Ms. Collins was being treated, and she identified defendant. Officer Marchese stated that neither he nor anyone in his presence told Ms. Collins anything before she identified Daniels as her assailant.
Anthony Thomas, the owner of the T & T barbeque restaurant, testified that the shooting did not occur in his establishment, but rather it happened outside the restaurant door. He stated Ms. Collins had been in that evening and placed an order for a meal. Also, he recalled that two men had come in and then left after placing their order. Thomas stated he heard a shot, but he did not see the incident. He went outside the restaurant and saw two men running across the street. When the police brought the two men back the same evening, Thomas identified them as the men who had placed an order shortly after Ms. Collins had placed hers. Mr. Thomas testified he did not tell the police who shot Ms. Collins, but his testimony was later impeached by Officer Marchese who stated Mr. Thomas told him that defendant did the shooting.
The defendant testified on his own behalf. He stated he never left his house on the day of the shooting, and he did not commit the crime.
The trial court found defendant guilty of aggravated battery. He appeals from that judgment.
Defendant contends he was not accorded due process of law and was not proved guilty of aggravated battery beyond a reasonable doubt when the victim's in-court identification was based on a tainted pretrial identification. We disagree with defendant's position.
An alleged violation of due process of law in the conduct of a confrontation depends upon the totality of the circumstances involved. Stovall v. Denno (1967), 388 U.S. 293, ...