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People v. Kirk





APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. MALONEY, Judge, presiding.


Rehearing denied September 27, 1979.

The defendant was convicted of the murder of Allan W. Alberts and sentenced to from 35 to 70 years in the Illinois Department of Corrections. He appeals, contending that the trial court (1) committed reversible error when during jury deliberation it asked the jury the numerical count of the last ballot; (2) erred in not declaring a mistrial when the jury failed to reach a verdict two hours after receiving a Prim instruction; (3) erred in not suppressing all identifications made by Sana Alberts as being fruits of an unduly suggestive lineup; (4) erred in not quashing the defendant's arrest and suppressing resulting evidence as being the direct result of an invalid Terry stop. The defendant also argues that the state's attorney's final argument erroneously instructing the jurors concerning their duties prejudiced the defendant.

We affirm the trial court.

In October 1975, a Cook County grand jury charged the defendant, John H. Kirk, with the September 21, 1975, murder of Allan W. Alberts. Prior to trial a hearing was held on a motion to suppress the identification of the defendant.

The first witness at the pretrial hearing was Sana Alberts. She testified that after witnessing the shooting she told the police that the assailant was tall, thin, had wavy, curly hair, was "kind of rugged-looking" and that he wore dark clothes and a black leather jacket. She also told them that she had never seen him before. After the shooting, Sana was taken to the hospital and then to a police station to view a lineup, the police telling her that they had a suspect. She looked through a glass window and saw six men in the lineup. She recognized three or four of them from having seen them in the Silver Spur Lounge. She did not know any of them personally. She told the police of her recognition. It is not clear, however, whether she told the police immediately or only after identifying defendant. Sana stated that she observed the lineup for approximately five minutes. Police Officer George Buenik asked her if she wanted the men in the lineup to wear a jacket. At the time Buenik asked her that, she already had made a positive identification. The men then took turns changing into a single dark jacket. Sana testified that during the time of the clothing switch she again made an identification and told Buenik of her identification. She only identified one person in the lineup. She did not make the identification based on the clothing worn by the defendant during the lineup, but identified him because she saw his face during the shooting. At this hearing she stated that the coat used in the lineup was similar to the one the assailant wore. However, she agreed that she could have told the police that the coat did not look like the one worn by the assailant. Defendant was not one of those she had seen at the Silver Spur Lounge.

Prior to the shooting Sana had one drink at the Silver Spur Lounge, where she had been for 2 1/2 hours prior to the shooting. Earlier in the evening, from 9 p.m. to 5 a.m., she was with Allan in the Mist Lounge. She had two drinks at the Mist Lounge, but did not see any of the men in the lineup at that tavern. Sana had been awake for 12 to 14 hours when the shooting occurred at 8:20 a.m.

On cross-examination, Sana testified that she did not see the men at the police station until she saw them in the lineup. Although she observed the lineup during a 5-minute period, she was not looking at the lineup the entire time. She had to stand on a chair to look through the lineup glass window, but she got off the chair at least once. She was also waiting to hear how Allan was; she did not at that time know if he was dead. When Buenik asked Sana if she wished to view the men with jackets on, she stepped off the chair, then got back on when the men put on the jacket.

Officer Buenik, who investigated the murder, also testified at the hearing. He procured the other five men for the lineup from the Silver Spur Lounge. He stated that Sana told him she recognized four of the men in the lineup as customers of the Silver Spur that morning.

Buenik testified that the first time Sana Alberts looked at the lineup, for approximately 1 or 2 minutes, she did not make an identification. The second time she viewed the men they were wearing different colored jackets. The men were given different jackets, some light-colored and others dark. The defendant wore a dark brown leather jacket. During this second observation, Sana viewed the men for two minutes and then made an identification. Buenik testified that the other men were wearing their own jackets and that 5 to 10 minutes elapsed between Sana's two viewings. It took a total of 15 minutes for Sana to identify the defendant. Buenik stated that Sana was sober during her identification.

Following this evidence, the defendant's motion to suppress the identification was denied.

At trial, the first witness in the People's case in chief was Sana Alberts. She testified that the deceased was her husband through a common-law marriage. From 9 p.m. on September 20, 1975, to 5 a.m. on September 21, 1975, her husband worked at the Mist Lounge. She was at work with him the entire evening, and had one or two drinks. After he finished work, they were at the Silver Spur Lounge from 5:30 a.m. to 8:15 a.m. Although Sana had one more drink, she stated that she very seldom drank alcohol.

At approximately 8:20 a.m., she and her husband left the bar with Johnnie Doran. While they were walking down the street, a man came up from behind them and shot Allan three times in the back of the neck. While Allan was lying on the ground, the man shot him two more times. When Allan fell at her feet after the first three shots, Sana backed away; she was about seven to 10 feet from the gunman. She looked at the gunman's face as he fired the last two shots. Sana identified this man as the defendant. The defendant then ran back in the direction of the Silver Spur. She had never seen the defendant before.

Later that day Sana gave a description to the Cicero Police Department and viewed a lineup of six men. She recognized three or four of the men as customers of the Silver Spur. She identified the defendant in the lineup as the one who shot her husband.

On cross-examination, Sana testified that after Allan fell to the ground upon being shot, she looked at the defendant and saw him shoot her husband in the chest. A total of five shots were fired by the defendant. She said the defendant used a black gun; however, she might have told Buenik at the preliminary hearing on October 3, 1975, that it was a silver gun. Sana then said she did not actually see the gun since she was looking at the defendant. Her description of the assailant, given to the police, was that he was tall and thin, with curly, wavy, collar-length hair, 35-42 years of age, and wore a dark jacket, dark pants, and a light shirt and dark shoes. She did not tell the police that he had a mustache. She also stated that she had been to the Silver Spur a few times, and that she woke up at 5 or 6 p.m. on September 20, 1975. Although at trial Sana testified that the men in the lineup put on a coat similar to the assailant's, she thought that she might have told the police during the lineup that the coat worn by the defendant did not look like the assailant's coat.

Cicero police officer Buenik testified that he was eating in Johnnie's Grill located at 21st and Cicero at 8:15 a.m., September 21, 1975, when he heard gunshots. He ran outside and looking north saw a woman crouched over a man lying on the street. He simultaneously saw three men running north on Cicero, with one of them running between the parked cars. He got his squad car and drove toward the area. He then saw a car, a yellow Pontiac Firebird with a black top that was parked in front of the Silver Spur, drive away. The reason he went after this car was that no one else was in the vicinity. After the car did not stop when Buenik turned on his red lights and siren, he chased the car at speeds of 60-70 MPH. The Pontiac finally stopped and the driver, who was the only one in the car, left the area. As he was attempting a pursuit on foot, Buenik met Officers Dorko and Zanko and they split up to find the driver. Unsuccessful, Buenik went back to the Pontiac and searched it. Two officers then brought a man, who was handcuffed, to Buenik. Buenik identified this man as the defendant. At the police station, Officer Dorko gave Buenik the defendant's gun, a .38-caliber, blue-steel, six-shot revolver, and five expended cartridges and one live cartridge. Buenik stated that when he first observed the driver get out of the Pontiac he was wearing dark clothing. When the defendant was brought back to Buenik, he was wearing dark clothing and a leather jacket.

On cross-examination, Buenik testified that Sana did not give the assailant's age or weight in her description to police and did not mention a mustache. She said the assailant wore a black leather jacket. When she first looked at the lineup, she did not identify anyone. However, when the defendant wore a brown leather jacket she was able to identify him. The men in the lineup wore different jackets; some of the jackets were lighter than that worn by the defendant; one other man in the lineup beside the defendant wore a dark leather jacket. Sana told Buenik that the jacket worn by defendant looked different than that worn by the assailant at the time of the shooting.

Chicago police officer Joseph Mitchello was on duty on September 21, 1975, at 8:30 a.m., and heard a police siren and saw a Cicero police car chasing another car. When he caught up with them, both cars were abandoned. After speaking with a Cicero police officer (he was not allowed to testify to the conversation) he then drove down an alley near the scene. He saw a man walking towards him, who then turned left down another alley. Mitchello stopped his car and with his weapon drawn ordered the man to halt. The man stopped, looked over his shoulder, threw his hands in the air, said "Oh, no," and then threw something out of his hands. Mitchello identified this man as the defendant. The defendant was approximately 25-30 feet away. He ordered the defendant to the police car, handcuffed him, then retrieved the thrown object which ...

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