APPEAL from the Circuit Court of Cook County; the Hon. ADAM N.
STILLO, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Defendants Odis Carter and his friend Roy L. Carter appeal their convictions at a joint jury trial of armed robbery and burglary, and their sentences of 10 to 20 years.
The complaining witness, Robbie Taylor, testified that the crime was perpetrated by someone calling himself Lucky and by two other men. The main issue at trial was identity: the State asserted, and the defendants denied, that Odis Carter and Roy Carter were those men. The defendants were identified as the criminals by three eyewitnesses. In addition, the State's witnesses identified the car the defendants were found in when apprehended as the one used by the criminals. The defendants attacked all this evidence as unreliable, and offered an alibi.
The defendants argue, among other things, that certain conduct of the assistant State's Attorney during closing arguments so hampered their efforts to impeach the identification evidence as to deny the defendants a fair trial. We agree. To put the prosecutor's misconduct in context, and demonstrate its importance, we survey this evidence at some length.
Robbie Taylor shared the burglarized apartment with her sister, Carolyn Settles. Settles and her boyfriend, James Overs, arrived at the apartment building while the crime was in progress. Overs testified that the criminals drove a 1969 Buick Electra 225, brown with beige top, with a Cancer zodiac sticker on the rear window. He was able to read the first three numbers of the license plate, 799. The defendants were stopped shortly after the crime in a car of this year, make, and color, with 799 as the first three digits of the license plate. It had a zodiac sticker in the rear window. The State's witnesses said this was a Cancer sticker, displaying both the word "Cancer" and the symbol of that sign; but Odis testified it was a Capricorn sticker, and the defense produced Frederick Grant, who testified he owned the car, and the sticker was for Capricorn. None of the stolen property was in the car when it was stopped.
The evidence relating to the description of the car was strong. Even by itself it might support a conviction. It was not, however, so overwhelming that the jury must have convicted even without the testimony of the eyewitnesses who identified the defendants personally. Overs testified that when he first saw the car there were two men in it; but he admitted he had earlier said there were three, and, as we shall see, there are grounds for believing that there was only one occupant at that time. If Overs was wrong about this, he could be wrong about the car itself. There was a dispute over the window sticker, and without that there is some chance of a coincidence. The defendants presented contrary testimony. We conclude, therefore, that the eyewitness identifications could well have been critical.
The identity witnesses were Robbie Taylor, Carolyn Settles, and James Overs. Taylor saw the criminals for only a short time, about 15 seconds, plus perhaps another 15 seconds in the case of the man she identified as Odis, when, so she testified, he tied her up. The witness admitted, however, she had earlier told the police that Lucky had tied her up, without mentioning that anyone assisted him. If one of the other men did help, he worked from behind, while Lucky held a knife to Taylor's throat. Because the crime took place around 11:30 p.m., after Taylor had gone to bed, there were no lights in the room, only some light from adjoining rooms. Robbie Taylor told the police that the men were about 19 to 22 years old; both Odis and Roy were over 30.
Settles testified that she saw Roy in the back seat of the car while it was parked outside the Taylor-Settles apartment. She did not get a good look at him. She did not notice anyone else in the car at that time. She identified Odis from having passed him on her way up, and noticed him carrying her property. When she got to the apartment, Lucky was just leaving; in other words, he was the last of the three robbers to go down to the car.
Overs testified that he saw two people in the car initially: an unidentified man in the front seat, and Roy in the back. He got a good look at Roy's face because Roy kept turning around to look at Overs. He also noticed a spot without hair on the man's head; Roy had such a spot. Overs then passed someone carrying a stereo and albums; Overs identified this man as Odis. Since according to Settles' testimony Lucky was still in the apartment while Odis was carrying the stolen property to the car, the man Overs claims to have seen in the front seat would be a fourth man, who did not participate actively in the crime, and who has never been identified or described in any way.
When the police arrived, Overs said he thought he could identify the car and the men. The policemen asked him to go with them in the squad car while they drove around the area. They did this for a while without success, and then drove Overs back to the apartment. Shortly afterward, the police spotted a car matching Overs' description, so they picked him up again. As they drove, Overs saw a beige and brown Electra 225, standing near a police squadrol, and said that was the car. He identified two handcuffed men as the criminals. The police thereupon placed the men, who were Roy Carter and Odis Carter, in the squadrol, and took them to the building where the robbery occurred. The police told Taylor they thought they had caught the criminals, and asked her to go downstairs and see if she could identify the suspects. Standing together, and in Overs' presence, Taylor and Settles identified the defendants as the criminals. The defendants were the only people in the squadrol, and wore handcuffs.
Before trial, the defense moved to suppress the identifications as unduly suggestive. The court denied the motion.
In closing argument, defense counsel assailed the identification procedure as biased and untrustworthy:
"Lo and behold, who is in the paddy wagon? Odis Carter and Roy Carter. * * * It is pretty obvious they might be handcuffed. Who do you think the complaining witness identifies? There is nobody else to choose from in this "
"I ask you, how many people were in that paddy wagon? There were two people to choose from, Roy Carter and Odis Carter. And they are handcuffed in that paddy wagon. It is hardly what you would call a fair situation * * *. It is hardly a line-up. Shouldn't there have been a line-up?"
"[S]he is standing out there with James Overs and Carolyn Settles. Each influencing each other, subtly * * *. It is not an independent test. Let me put it this way, ladies and gentlemen, don't you think that Carolyn Settles should have been ...