APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 5, 1979.
Defendant was arrested on July 8, 1974, and charged with two counts of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2) which arose out of an incident occurring on April 24, 1974. One week earlier, on July 1, 1974, defendant had been arrested for disorderly conduct in an unrelated incident. Upon motion in the July 1, 1974, case, the trial court suppressed evidence relating to charges against defendant arising out of that arrest. *fn1
In the case at bar, defendant moved to suppress all evidence of in-court and out-of-court identifications on the ground that those identifications were the "fruit of the prior illegal arrest" for disorderly conduct on July 1, 1974. After a hearing on the motion, the trial court found that the photograph of defendant, taken following his arrest on July 1, 1974, was taken in accordance with "general bookkeeping procedures of the Chicago Police Department." *fn2 The trial court also found that defendant's arrest on July 1, 1974, was not a "subterfuge" to obtain his photograph. Thus, the court denied the motion to suppress. After a jury trial, defendant was found guilty of both counts of armed robbery, and the court sentenced defendant to a term of five to eight years.
Defendant appeals presenting the following issues for review: (1) whether the trial court erred in admitting into evidence identification testimony obtained as a result of a prior illegal arrest; (2) whether defendant was deprived of his right to have the jury evaluate the identification evidence; (3) whether defendant was denied his right to a fair trial because the jury may have inferred from testimony that defendant had committed offenses unrelated to those with which he was charged in the instant case; (4) whether the prosecution during both cross-examination and closing argument improperly discredited the testimony of the defense witness by misrepresenting to the jury that the witness was immune from prosecution for perjury; (5) whether the prosecution's closing argument improperly referred to defendant's failure to testify.
For the reasons hereinafter set forth, we affirm.
On April 24, 1974, at approximately 10 p.m., Willie Hughes and Rosetta Showers Hughes *fn3 (hereinafter referred to as Showers) were robbed at gunpoint in Jo Jo's Lounge at 6631 South Ashland in Chicago, Illinois. On July 8, 1974, defendant, Eugene Price, was arrested and charged with two counts of armed robbery.
Prior to trial, defendant filed motions to suppress all testimony of in-court and out-of-court identifications made of him. He alleged that he had been illegally arrested on July 1, 1974, taken to the police station, photographed, fingerprinted, searched, questioned, charged and then released. He further alleged that the photograph taken following his arrest on July 1, 1974, was used to effectuate his arrest upon the instant charges on July 8, 1974.
At the preliminary hearing on the motions defendant moved to admit a report of proceedings on the motion to quash his arrest of July 1, 1974, and to suppress the evidence arising therefrom. The report of proceedings was admitted and revealed that defendant's motion to suppress had in fact been sustained.
The following testimony was adduced at the preliminary hearing on the motions. Officers Steen, Dorn and Alesi testified that defendant had been photographed following his arrest on July 1, 1974. The officers displayed this photograph of defendant, together with photographs of nine other people also arrested on July 1, 1974, to one Louis Watkins. Watkins also had been robbed on April 24, 1974, at his tavern at 7352 South Ashland, Chicago, Illinois. *fn4 From these photographs Watkins identified defendant and two other persons as the ones who had robbed him.
As a result of the photographic identification by Watkins, defendant was arrested on July 8, 1974. The police then photographed him again. The latter photograph was shown to Hughes and Showers on July 8, 1974, and they made positive identifications of defendant as one of the men who had robbed him. Also on July 8, 1974, Watkins, Showers and Hughes individually viewed a lineup which included defendant and Willie Howell, an alleged co-offender. Watkins, Showers and Hughes again made positive identifications of defendant. *fn5
The trial court denied the State's proffer of evidence allegedly showing an independent basis for the identification. The court found that defendant's photograph taken on July 1, 1974, had been taken in accordance with general booking procedures of the police department. The court further found that defendant had not been arrested on July 1, 1974, solely as a subterfuge for the purpose of obtaining his photograph or fingerprints. On that basis defendant's motions to suppress all testimony of in-court and out-of-court identifications were denied.
Willie Hughes testified at trial to the following:
Hughes arrived at Jo Jo's Lounge after work at approximately 9:45 p.m. on April 24, 1974. His fiancee, Rosetta Showers, was to pick him up at the lounge after she finished work. There were 10 or 15 patrons in the tavern when Hughes arrived. Hughes recited some of their names and described their clothing. As one enters the lounge, a bar is to the left, tables to the right and a bowling machine in the center of the back of the room. Hughes did not know how many lights were over the bar or in the ceiling, but he did not consider the tavern lighting dim. Moreover, there was a bright light on the bowling machine. When Hughes entered, he went directly to the bowling machine. He had nothing to drink that evening.
Approximately five or 10 minutes after his arrival, while he was standing near the bowling machine, a "short man" (not otherwise identified), about five feet two inches or five feet three inches tall, entered. The man had a gun in his right hand and banged an ashtray on the bar as he walked along the bar. The man had very short hair, wore a "green flopped down hat" and wore no coat. Hughes could not recall the color of the man's shirt or trousers. The man had no mustache, but Hughes could not recall if he had sideburns. Hughes could not describe the man's cheekbones, nose or forehead.
Two other individuals were behind the short man. One of them announced, "This is a stickup." Hughes identified defendant and Willie Howell as the two men behind the short man. Both defendant and Howell also held guns. Defendant's gun was blue steel. Hughes recalled that defendant was wearing a red jacket but could not recall the color of defendant's trousers. Hughes could not describe the height of defendant, nor could he recall whether defendant had sideburns. Defendant's hairstyle was the same on the day of the crime as it was at trial, and his face was unshaven. Howell had short slicked down hair, no sideburns and a "little fuzzy, but it's not a mustache." Hughes could not recall the color of Howell's shirt or trousers but did recall that Howell was not wearing a jacket. Hughes described Howell as being approximately five feet nine inches tall.
Defendant and Howell walked to the bowling machine. Although Hughes was ordered to turn around, he still saw the face of defendant. He and the other patrons near the bowling machine were ordered to place their hands on the machine. One of the two offenders then said, "Brother, you can come out of that coat." Howell then picked up Hughes' jacket and removed $29. During this time defendant was three to four feet away from Hughes. Other patrons were also robbed of their valuables.
Howell ordered all of the patrons to move to the rear of the tavern. Defendant was still at Hughes' side. Howell and defendant, with the use of their guns, ordered the male patrons to enter the men's washroom and the female patrons to enter the ladies' washroom. One of the offenders declared, "If you all can't fit into this washroom, I'm going to shoot you right here." Hughes could see defendant's face as Hughes walked from the bowling machine to the washroom. In response to questions from defendant's counsel, Hughes agreed that "[t] here are other people who look like some peoples, but we all don't look alike," and "You know the dogs that bite you."
Hughes had been in the washroom with the other male patrons for about five minutes when he hears a gunshot and then a scream of, "Oh, my God." He recognized the voice as that of Showers. Hughes ran out of the washroom, saw Showers going out of the front door of the tavern and followed her. As he called to her, he saw three men running away.
Joseph Hayes, owner and bartender of Jo Jo's Lounge, testified at trial to the following:
On the evening of the crime, there were approximately 14 patrons in the tavern, including Hughes. A man knocked on the bar with an ashtray. When Hayes approached the man to see what he wanted, the man hit him. The offender pointed a gun in Hayes' face and asked Hayes if he had a gun. Hayes said yes. The offender placed his gun to Hayes' head and took Hayes' gun from the drawer. The perpetrator then took more than $200. While this was happening, Hayes heard two other men yelling, "This is a stickup, get your money out, hold your hands up" and "Place your hands on the pinball machine." Hayes could not see them. He knew Hughes and another patron were near the bowling machine. The offender who had hit Hayes then ordered Hayes to keep his head straight and to enter the men's washroom. Consequently, he was unable to positively identify defendant at trial although he said defendant looked familiar to him.
Rosetta Showers testified at trial to the following:
On April 24, 1974, Showers, after leaving work, drove to Jo Jo's Lounge to pick up Willie Hughes, her fiance. She parked her automobile at the front door and took her books into the lounge with her because she was afraid that someone would steal them from the car. As she walked into the tavern a man identified by her as defendant grabbed her around the neck. She turned, looked at him and pushed him away. Defendant grabbed her again, this time by the arm, and pulled her towards the bar. Upon release, she hit the bar and dropped her books. When she turned around, defendant was standing a foot away and was holding a gun.
Although Showers expressed the opinion that the lighting in the tavern was dim, she saw that defendant had a mustache and goatee, wore his hair "straightened and curled" and wore a cap. One of the other offenders was tall and dark; he went to watch the door. The other, a short man, came towards her and unzipped her jacket. Defendant stood behind the short man. Defendant slapped Showers when she resisted the removal of her coat. As a result, her eyeglasses fell. She then slapped defendant, and his gun accidently discharged. Showers screamed, and the offenders fled. Defendant, however, returned to take Showers' "satchel." In the "satchel" were her books, school supplies and a black leather French purse wallet containing her identification and $17. Her rabbit fur jacket was also taken.
Showers chased the offenders down the street. The offenders then got into an automobile and drove away. Showers could not describe the car because her glasses had fallen off when defendant had slapped her. She ran after the car until she could not see it and then ran to an ex-neighbor's house to call the police. *fn6 By that time Hughes had reached her and they walked back to the tavern. Both Showers and Hughes spoke with police officers who had in the meantime arrived at the tavern.
As they were driving away from the lounge, Showers and Hughes were stopped by police and asked by them if the three young men they had in the back of their police car were the men who had committed the robbery. Neither Showers nor Hughes identified them as the offenders. Showers told the police that the men who had robbed her were at least 21 years old, whereas the young men seated in the back of the police car were not more than 16 years old.
The parties stipulated that defendant's date of birth was February 23, 1951. Defendant was 23 years old at the time of the offense.
The following evidence was also adduced at trial:
On July 8, 1974, a lineup was held at Area Two Headquarters. Hughes testified that he positively identified defendant and Howell as two of the men who had robbed him. Showers testified that she positively identified defendant as one of the offenders. Hayes testified that he viewed the lineup but was unable to make a positive identification. Officer Alesi testified that he witnessed the lineup, and he corroborated the above testimony. Hughes testified further that during the summer of 1976, more than two years after the crime, Showers and Hughes were at Sportsman Park. Showers saw defendant and directed Hughes' attention to defendant. Hughes immediately recognized defendant.
Willie Howell, also known as Andrew Howell, testified on behalf of defendant to the following:
Howell had pleaded guilty to and had served his sentence for the instant crime. Howell had never met defendant prior to their arrest on July 8, 1974. He had not seen defendant since that time except for the day of trial. Moreover, Howell had not been subpoenaed to testify at defendant's trial.
Howell testified that his two co-offenders in the instant crime were named "Greg" and "Mouse" (not otherwise identified) and that defendant was not involved. Howell did not know the last names of his co-offenders. Both were deceased at the time of trial. Greg was short in height and Mouse was approximately the same height as defendant. Mouse did all the "touching and talking." Less than $100 was stolen, and Howell did not recall a coat being taken. When the offenders separated, Howell received about $30 in proceeds.
Howell is also known by a third alias, Booker T. Ransom. Aside from the instant conviction, he has also been convicted of burglary and armed violence.
Based on the foregoing, the jury found defendant guilty of both counts of armed robbery, and the court entered judgment on these verdicts. Defendant made an oral motion for a new trial over the State's objection and after the State had requested the specificity of grounds required in a written motion. The oral motion specified several alleged errors. The court denied the motion and sentenced defendant to the Department of Corrections for a term of five to eight years.
At the outset we shall consider the State's contention that a review is limited to the issues specified in defendant's oral motion for a new trial.
1-3 Section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 116-1) provides that a written motion for a new trial shall be filed by defendant within 30 days after the entry of a finding or the return of a verdict and shall specify the grounds therefore. This section addresses only post-trial procedure in the trial court; it contains no reference to the waiver rule or to appellate procedure; and it prescribes no consequences for a failure to comply with its terms. (People v. Sweeny (1978), 57 Ill. App.3d 879, 885, 373 N.E.2d 663.) That a post-trial motion for new trial be in writing is not made mandatory by this section. (People v. Biers (1976), 41 Ill. App.3d 576, 578, 353 N.E.2d 389.) Instead our supreme court has held that a general oral motion for a new trial, if not objected to by the State, will preserve for appeal all errors which appear properly preserved on the record. (People v. Whitehead (1966), 35 Ill.2d 501, 503-04, 221 N.E.2d 256; People v. Flynn (1956), 8 Ill.2d 116, 118-120, 133 N.E.2d 257; People v. Prohaska (1956), 8 Ill.2d 579, 583, 134 N.E.2d 799.) A request for specification of grounds in an oral motion will delimit the issues for review to those actually enumerated. (People v. Parker (1970), 129 Ill. App.2d 43, 262 N.E.2d 751 (abstract).) The record discloses that the State objected to defendant's oral motion for a new trial and requested that defendant specify the grounds as required in a written motion. Defendant then stated four grounds for review, namely, the admission of both in-court and out-of-court identification testimony, the admission of the hearsay testimony of Officer Alesi, the limitation of defense counsel's cross-examination of Showers concerning her daily activity as a nurse, and "error in final argument." Thus, our review will be limited by the parameters of the oral motion for a new trial.
Defendant initially contends that the trial court erred in admitting into evidence both in-court and out-of-court identification testimony. Defendant argues that the photograph taken of him pursuant to his July 1, 1974, arrest was the "fruit" of an illegal arrest and that both in-court and out-of-court identifications were based upon that photograph.
We will first consider defendant's contention that but for the unlawful seizure of his person on July 1, 1974, the subsequent out-of-court identifications of him by Watkins, Showers and Hughes would not have been made. The State argues that the July 1, 1974, arrest was not illegal and was in fact based upon probable cause, and that even if that arrest was illegal, the illegality did not taint the arrest and subsequent identification testimony of the instant prosecution. The narrow issue presented is whether under the facts and circumstances of this case, the out-of-court identifications of defendant by the victims were a direct result of an exploitation of defendant's allegedly illegal arrest on July 1, 1974.
4, 5 Both the Supreme Court of the United States and the Illinois courts> have rejected the "but for" test urged by defendant. Evidence cannot be characterized as "fruit of the poisonous tree" merely because it would not have come to light "but for" the illegal actions of the police. (Brown v. Illinois (1975), 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254; Wong Sun v. United States (1963), 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407; People v. Washington (1978), 60 Ill. App.3d 662, 377 N.E.2d 397; People v. Faulisi (1977), 51 Ill. App.3d 529, 366 N.E.2d 1072; People v. Pettis (1973), 12 Ill. App.3d 123, 298 N.E.2d 372.) The test to be applied is whether the evidence has been obtained by "an exploitation of the illegality or by means sufficiently distinguishable to be purged of the primary taint." (Faulisi, at 534.) The important considerations in determining whether there has been exploitation are the purpose and flagrancy of the official misconduct. Brown; Faulisi.
6 It is a well-established rule that if the unlawful arrest was purely for investigative purposes, solely to acquire general data regarding defendant, the evidence should be suppressed. (Davis v. Mississippi (1969), 394 U.S. 721, 22 L.Ed.2d 676, 89 S.Ct. 1394; United States v. Edmons (2d Cir. 1970), 432 F.2d 577; People v. Pettis (1973), 12 Ill. App.3d 123, 298 N.E.2d 372.) In Edmons, FBI agents were instructed to arrest anyone who might have been involved in an altercation with several FBI agents. Defendant was arrested along with several others for failure to have a selective service card. While in custody, defendant was photographed. Agents then identified defendant as being involved in the altercation, and he was charged with assault and interfering with a Federal agent. The court held that the arrest was unlawful and the identification was the fruit of the illegal arrest. The court stated at page 584:
"When the police, not knowing the perpetrator's identity, make an arrest in deliberate violation of the Fourth Amendment for the very purpose of exhibiting a person before the victim and with a view toward having any resulting identification duplicated at trial, the fulfillment of this objective is [an exploitation of the primary illegality].
We are not obliged here to hold that when an arrest made in good faith turns out to have been illegal because of lack of probable cause, an identification resulting from the consequent custody must inevitably be excluded. But in a case like this, where flagrantly illegal arrests were made for the precise purpose of securing identifications that would not otherwise have been obtained, nothing less than barring them can adequately serve the deterrent purpose of the exclusionary rule."
Similarly in Davis there was a round-up of suspects, and only after defendant was in custody and fingerprinted was there a link between defendant and the crime.
In the case at bar the question is whether the defendant's arrest on July 1, 1974, was a flagrantly illegal arrest made for the precise purpose of securing the identification of defendant. The record shows that on July 1, 1974, defendant was arrested for disorderly conduct after police had stopped an automobile in which defendant was a passenger. The police had observed the automobile leave 1739 West 80th Street just prior to a narcotics raid at that address. The automobile was stopped because it bore Illinois license plates which the police had determined on June 30, 1974, were fictitious. Moreover, the police had been present on June 30, 1974, when the driver of the automobile had made a sale of narcotics. Once the automobile was stopped, the arresting officer began to question the driver. Defendant and the other passenger protested the stop and created a disturbance. A crowd gathered and both defendant and the other passenger were immediately arrested and transported to Area Two Headquarters. Based upon the record before us, we cannot conclude that the police stopped the automobile solely because defendant was a passenger and in order to obtain defendant's photograph.
The record further shows that the routine booking procedure at Area Two Headquarters is to photograph every arrestee. The photograph is taken to identify the arrestee and to indicate the approximate time of arrest. The photographs are filed alphabetically in a filing cabinet. Testimony also shows that some officers keep photographs in their personal files for investigative purposes. The procedure followed at Area Two Headquarters differs from the usual procedure followed by the Chicago Police Department. The procedure followed by the Chicago Police Department is to photograph an arrestee if there is no photograph which has been taken in the previous two years on file with the Bureau of Identification. Although Area Two Headquarters' procedure departs from the usual procedure followed by the Chicago Police Department, the departure does not lead to the conclusion that defendant was arrested solely to obtain his photograph for identification purposes.
7, 8 Based upon our review of the record, we conclude that the trial court did not err in its finding that defendant's arrest was not a subterfuge to obtain defendant's photograph, nor did the court err in denying the motion to suppress the identification testimony.
Defendant next contends that he was deprived of his right to have the jury evaluate the identification evidence. Defendant complains of three errors: (1) that the trial judge invaded the province of the jury by making rulings and a comment which indicated his belief that the identification testimony was positive and credible; (2) that plain error occurred when hearsay evidence of out-of-court identifications was admitted as a substitute for, or to bolster, in-court identifications; and (3) that the trial court erred in refusing to allow defense counsel to argue to the jury that they should consider the identification evidence in light of their own observations and experiences in life while allowing the State to so argue, although the State's argument was not based on the evidence.
Preliminarily, we note that defense counsel's cross-examination of the State's identification witnesses, Hughes and Showers, was competent and provided the jury with ample opportunity to properly assess this testimony. During defense counsel's cross-examination, every aspect of the ability of the witness to observe defendant was explored, including the position of the witnesses and defendant, the length of time of observation, the lighting conditions, the sobriety of the witnesses, the description of the three offenders (including defendant) and the ability of the witnesses to describe other patrons. Yet the strong identification testimony of Hughes and Showers was unshaken by this extensive cross-examination.
Defendant first claims that certain rulings by the trial court on objections by the State during defense counsel's cross-examination of the State's identification witnesses were incorrect and, further, that the court expressed an opinion that the identification testimony was credible and positive. The State contends that defendant has waived this issue and further argues that the court properly sustained the State's objections.
9 The record shows that defendant failed to specify these rulings and comment as errors in his oral motion for a new trial. Therefore, defendant has waived this issue. However, even if defendant had not waived this issue, our review of the record shows no reversible error occurred.
During the cross-examination of Hughes by Miss Hillyard, defendant's counsel, the following occurred:
"Q. [by Miss Hillyard] Now, the night of the incident back at Jojo's, did Eugene Price, did this man, who was standing close to you with a gun pointed at you, did he hurt you?
Q. Now, about how long was this person that you say is Eugene, how long was he standing hear [sic] you?
Mr. Cisco [Assistant State's Attorney]: Object to the form of that question.
Miss Hillyard [Defense Counsel]: Your Honor, I haven't finished the question.
The Court: You may rephrase.
Miss Hillyard: Q. On the day of the incident, how long was the person that you have claimed is Eugene standing near you?
Mr. Cisco: Objection, Judge.
Mr. Cisco: He's not claiming anything. He's ...