APPEAL from the Circuit Court of Kane County; the Hon. JOHN A.
KRAUSE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant, Paul Shaver, was convicted of armed robbery after a bench trial and was sentenced to 5-10 years imprisonment. He appeals, contending that the trial judge committed reversible error in denying his motion to suppress physical evidence and identification testimony.
The defendant was charged with the armed robbery of the Foremost Liquor Store in Aurora on April 15, 1977. Sergeant Thomas Herlihy of the Aurora police testified at the suppression hearing that on April 16, 1977, he saw a black 1966 Pontiac in the parking lot of Hansen's Motel. The description of the car and its license number had been provided by a witness at the scene of a burglary. Herlihy inquired from the manager and secured the room number of the motel guest associated with the Pontiac. He removed the car keys which had been left in the trunk lock. When other officers arrived, Herlihy and four other police officers knocked on the door of the designated motel room. The defendant opened the door. Herlihy testified that he told Shaver that he was going to tow the car and hold it for one Dave Dettore in Ottawa who had reported the car missing. He said that Shaver answered "Okay." Herlihy said he asked him for permission to look into his car and that defendant answered that it wasn't his car and that he should ask the owner.
The officer asked defendant whether anyone else was in the room and received a "no" answer. However, the officers noticed a closed bathroom door and found a David Kimes, whom they placed under arrest in connection with the charge of burglary which they were investigating. After Kimes was arrested Shaver said he was going out to the car and get his clothes if they were going to tow it and walked out. He returned and asked who had the keys to the car. Herlihy testified that he said that he had the keys. Herlihy picked up the mattress and found a revolver which he took with him. At that point Shaver was outside the room.
After the officers took Kimes out Herlihy said he proceeded outside and went back to the car with Shaver; that Shaver went to the driver's side, took out a pair of pants and a leather jacket, said he had some more clothes in the trunk of the car and told the officer to open the trunk. Herlihy said he opened the trunk and saw another leather jacket lying in the trunk. At that point the officer told Shaver to put the clothes he had in the trunk, closed the trunk and told the defendant that they "would like to talk to him at the police station". Herlihy said that defendant responded again "Okay." Shaver was not placed under arrest at any time.
The officer further testified that he turned Shaver over to two other officers and that defendant was transported to the police station in the back of a locked police van, inasmuch as the squad cars were not manned by two men, which police regulations required if persons were to be transported. Herlihy testified that when defendant was taken to the station he spoke to him and read his Miranda warnings. The defendant said he wanted to talk to his lawyer. Herlihy then asked defendant if he would give the police a photograph and testified that he said "Okay." His photograph was taken and the defendant was told he could leave and did so.
Herlihy testified that when he saw both Kimes and defendant at the motel they fit the description of the persons involved in the armed robbery and were both under suspicion for that crime. He also testified that the jacket which was seen in the trunk was an item that was described in the description of the armed robbers.
There was no further testimony, and the court denied the motion to suppress the gun and the clothing. At a further hearing to suppress the out-of-court photo identification resulting from the photograph taken in the police station, Officer Gatske testified that he conducted a photographic lineup on April 16, 1977, using the picture of Paul Shaver obtained earlier in the day from Sergeant Herlihy. The victim, Robert Bellon, also testified that on April 16 he was shown a group of photographs and chose defendant's picture. Gatske testified that he did not point out any photograph to Mr. Bellon and that the names and numbers on the photographs used in the examination were covered up showing only the side and front view of the men. The court denied defendant's motion to suppress the identification testimony of Bellon, finding that the photograph was obtained with defendant's cooperation and voluntary consent.
In the bench trial Bellon described the armed robbery at the liquor store where he was employed. He identified the defendant as the armed robber and testified that the gun and jacket exhibited by the People were similar to the gun used and the jacket worn by the robber. Bellon testified that the man he saw in the liquor store had a full beard and moustache and confirmed that the pictures taken of Shaver on April 16 contained a full beard and moustache. Bellon also testified that he had given the officers a description of the man as having fairly long hair with a full beard. At the trial defendant was without the beard.
On cross-examination, Bellon stated that the robber wore sun glasses that were darkly tinted and mostly covered the man's eyebrows. He was shown the photograph that Bellon had earlier identified as being the defendant. Bellon testified that without the beard and sun glasses he might not have recognized Shaver immediately, but positively identified defendant in court as the man that robbed him because of his hair and his "build." He said that he was across the counter from the armed robber when he came in and ordered a package of cigarettes. He recalled and testified to the threatening language which the man used when he told Bellon he wanted all the money in the register. Sergeant Herlihy testified at the bench trial to substantially the same effect as he had in the suppression hearing.
The defense offered no witnesses with the exception of calling the investigating officer who was asked to look in the defendant's mouth and who testified that there were no teeth on his upper gums.
In holding defendant guilty at the close of the evidence the trial judge made several findings. He first found that there was no evidence that the photo identification lineup was suggestive. He also found that there was sufficient opportunity at the time of the occurrence to establish an independent in-court identification. He concluded that more than the face was involved in the identification and that there was no evidence that he exhibited any unusual condition in regard to his mouth or his teeth at the time of the crime. He found and considered the gun and the jacket to be merely circumstantial evidence.
The most significant issue in our view is whether the photograph of defendant was obtained with his uncoerced consent; or, if not, whether it so tainted the in-court identification that defendant was deprived of a fair trial.
The defendant contends that under all the circumstances he would reasonably assume that he had no choice but to comply with the police request to be photographed. It is of course true that defendant was accompanied by police throughout, and that he was transported to the station in the back of a locked police van. There was also testimony by the motel manager that defendant was handcuffed when he left the motel. The officers could not recollect whether he was handcuffed when they saw him in the van. There was ...