APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
The defendant, Larry Witted, was charged by information with having committed the offenses of attempt murder and armed robbery on April 17, 1976. Following the trial, the jury returned verdicts finding the defendant guilty of attempt murder, armed robbery, and aggravated battery. Judgment was entered on the attempt murder and armed robbery charges and verdict findings. The defendant was sentenced to concurrent terms of 10 to 30 years for attempt murder and 5 to 15 years for armed robbery. He appeals contending (1) that the trial court erred in denying his motion to suppress the victim's identification testimony allegedly predicated on suggestive photographic and lineup identification procedures and not of an independent origin; (2) that the trial court erred in refusing to permit defense counsel to examine the prospective jurors regarding the defense of mistaken identity during voir dire; (3) that the prosecutor's conduct and the trial court's failure to control that conduct deprived him of a fair trial; (4) that the State failed to prove him guilty of the offenses charged beyond a reasonable doubt; and (5) that the sentences he received were excessive.
Harry Wojtanowicz testified that at 9:30 a.m. on Saturday, April 17, 1976, he and two other employees of the Morrison Furniture Company delivered a sofa to an apartment at 206 West 147th Street in Harvey, Illinois. The other two returned to the truck while Wojtanowicz collected the C.O.D. and had the customer sign some papers. As Wojtanowicz left the customer's basement apartment, he noticed a man standing in the center hallway about 5 to 10 feet away from him. He looked at the man, whom he had not seen before, and said "Hi" as he walked toward the exit. Just as Wojtanowicz reached the doorway, the man grabbed him from behind, turned him around, and placed a gun against his head. The man ordered him to place his hands on the wall and then demanded his money. Wojtanowicz testified that although he was facing the wall with the man standing behind him, with his head turned to the side he could see the man's face. After taking Wojtanowicz's wallet containing $140 in cash, his sunglasses, and the C.O.D. check from his pockets, the man demanded more money. To Wojtanowicz's reply that he didn't have any more, the man stated, "I ought to blow your brains out," and fired the gun as Wojtanowicz turned away. The shot creased Wojtanowicz on the forehead. The man then ran out of the building to 147th Street as Wojtanowicz turned around and looked at him. After being treated for his wound, Wojtanowicz looked at between 70 and 75 "mug shot" photographs at the Harvey police station but did not recognize the offender.
Wojtanowicz further testified that on May 7, 1976, while at work, he was shown 25 additional photographs by Investigator Lawrence Painter; that he identified the defendant's picture as the offender toward the end of the pile and pulled it out; and that the defendant's picture was the only one without two views and writing on it. Wojtanowicz further testified that a few days later he identified the defendant from a lineup of four to five men at the Harvey police station, and that he knew it was the person whose picture he had seen earlier. On June 3, 1976, he identified the defendant at a preliminary hearing, and later, during the trial, again identified the defendant as the offender.
Wojtanowicz also testified that he observed the defendant for one minute in the hallway before he was grabbed and for another minute while the defendant searched him. He indicated that the lighting conditions were good in the hall, illumination being provided by artificial lights and sunlight streaming through stained glass windows on a sunny day. He said the defendant had on a green shirt and dark pants at the time and had short hair. He further stated that he was absolutely certain that the defendant was the man who robbed and shot him on April 17.
Prior to trial the defendant filed a motion to suppress Wojtanowicz's photographic and lineup identification testimony. At the hearing on this motion, the defendant called Investigator Lawrence Painter. Painter testified that he first arrested the defendant in connection with an unrelated armed robbery of a food store, and that the defendant was photographed while in custody. At 3 to 3:30 p.m. on May 7, 1976, Painter showed Harry Wojtanowicz the defendant's photograph along with 24 other police "mug shot" photographs, all of which were Polaroid photographs. The defendant's picture had no marks on it, three had numbers handwritten on them, and the rest had police signs on them. The defendant's photograph displayed only one view and the 24 others displayed two views. Painter testified that he selected the 24 other pictures on the basis of descriptions similar to that of the defendant's. Painter handed a stack of 24 pictures to Wojtanowicz who looked at them one at a time. He further stated that after looking at 17 photographs, Wojtanowicz picked out the defendant's photograph saying, "This is the person that robbed me." Although the photographic identification took place at the furniture company where Wojtanowicz worked, no one else was present. Painter further indicated that Wojtanowicz had previously looked at a book containing 50 photographs at the police station but did not identify the offender from them.
Painter further testified that on May 12, 1976, he conducted a lineup composed of four black males including the defendant. The defendant was the only one whose picture was in the group of 25 photographs previously shown to Wojtanowicz. After being notified of the lineup, the defendant signed a waiver form acknowledging that he had read the statement of procedures, was aware of his rights, and did not desire the presence of an attorney. Painter testified that the defendant looked at the form and examined it before signing it. Investigator Graves was also present at the lineup in which Wojtanowicz identified the defendant.
Investigator Painter's testimony at trial, including his testimony as to Wojtanowicz's photographic and lineup identifications of the defendant, was substantially the same as his testimony at the pretrial hearing on the defendant's motion to suppress. He further testified at trial that no physical evidence incriminating the defendant was recovered, and that he had talked to a Mr. Malone during his investigation, who said he could not identify the offender other than as a black male.
The defendant testified on his own behalf at the hearing on the motion to suppress the identification testimony. Defendant recalled being arrested on May 6, 1976, for an unrelated offense and being released after his father posted bond at a hearing in Markham court a day or two later. Investigator Painter testified at the hearing that at 9:30 a.m. on May 7, 1976, he was present at the defendant's bond hearing where the defendant's father indicated he had sufficient money to post bond for his son. The defendant further testified at the pretrial hearing that he remembered reading and signing the waiver form entitled "Required Warning and Procedure for Lineup" which Painter showed him on May 12, 1976, at the Harvey police station. He admitted that his signature was on the document. The defendant stated that he was told he had to sign it to appear in the lineup, so he signed it knowing that he would be released if he was not identified. He further stated that, although he did not understand it, he signed the waiver anyway. He was not aware of the fact that he had a right to have an attorney present at the lineup; if he had known, he probably would have wanted one present. No one was present on his behalf. The defendant graduated from Thornton High School in 1975 with a B to C average. The defendant's motion to suppress was denied.
At trial, Horace Witted testified that he and his wife and children, including the defendant, lived at 14554 Roby in Dixmoor, Illinois, about four blocks from 206 West 147th Street where the robbery occurred. According to Mr. Witted, the defendant worked with him at one of his two rib houses from 4 p.m. to 3 a.m. on April 16, 1976; they then went home to sleep. At 10:30 to 11 a.m. on April 17, Mr. Witted got up and saw the defendant in bed. Mr. Witted did not know where his son was at 9:30 a.m. that morning.
Norma Jean Malone testified that she lived at 14716 Hoyne, Harvey, Illinois, and that she knew the Witted family casually. While sitting on her front porch with her husband and two others on the morning of April 17, 1976, she saw a furniture truck parked behind the apartment building located at 206 West 147th Street. At about 9:30 to 9:40 a.m. she heard a loud noise, and two to three minutes later saw a man hurrying down 147th Street with his hand in his pocket. She did not see the man leave the apartment building as her view was blocked. Mrs. Malone described the man that she saw as taller, heavier, and darker than the defendant. She testified that the defendant was not the man she saw that day running down 147th Street, and that she did not know who shot the victim or whether it was the defendant.
Bishop R.L. Davis and Selita Jackson testified that the defendant had a good reputation for being a peaceful and law-abiding citizen.
The defendant testified at trial that he had been employed as a manager trainee of his father's rib house since his graduation from high school. On April 16, 1976, he worked there from 4 p.m. to 3 a.m., and then went directly home to bed. The defendant stated that he slept until 12 noon on April 17, 1976, and did not leave the house during that time. At 1 p.m. he left his house to visit his girl friend at her home at 14715 Hoyne across from the Malones. According to the defendant, the building at 206 West 147th Street is only one house from that of the Malones. Although the defendant knew two families living at 206 West 147th Street, he testified that he did not enter that building on the day of the incident or on any other day. The defendant further stated that he stayed at his girl friend's home until 3:30 p.m. and then went back to work at the rib house. He had no records showing that he worked at the rib house because he was paid in cash and did not file any income tax returns. The defendant denied robbing or shooting Wojtanowicz.
Following closing arguments, the jury returned verdicts finding the defendant guilty of attempt murder, armed robbery, and aggravated battery. Holding that the aggravated battery charge merged, the trial court entered judgment on the attempt murder and armed robbery verdicts. After arguments in aggravation and mitigation, the court sentenced the defendant to concurrent terms of 10 to 30 years for attempt murder and 5 to 15 years for armed robbery. The defendant appeals.
The defendant first contends that the trial court erred in denying his pretrial motion to suppress the identification testimony of Wojtanowicz. He argues that both the photographic and lineup procedures used were so unnecessarily suggestive as to undermine the reliability of the identification testimony, thereby warranting its exclusion.
1 At the outset, it should be noted that the defendant failed to claim his error in either a written or oral motion for a new trial in accordance with section 116-1 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1977, ch. 38, par. 116-1.) The failure to present a reviewable issue in a motion for a new trial even though that issue involves a constitutional right constitutes a waiver of that issue. (People v. Rodriguez (1978), 58 Ill. App.3d 562, 567, 374 N.E.2d 904, citing People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856, and People v. Daily (1975), 30 Ill. App.3d 413, 418, 332 N.E.2d 146.) However, issues not properly preserved for review which deprive a criminal defendant of a fair and impartial trial may be considered where the evidence is closely balanced (Pickett, 54 Ill.2d 280, 283), or where the court recognizes plain error (Ill. Rev. Stat. 1977, ch. 110A, par. 615(a)). A discussion of the merits of the defendant's contentions discloses that the identification testimony was properly received by the trial court.
Defendant contends that the use of photographic identification procedures while he was in custody was improper, and that the manner of their use was unnecessarily suggestive. The defendant's claim that he was in custody when Investigator Painter showed the 25 pictures to Wojtanowicz rests solely on his testimony. The State disputes this contending that Investigator Painter's testimony that the defendant's father posted bond for the defendant's release at the bond hearing at 9:30 a.m. on May 7, 1976, before the pictures were shown to Wojtanowicz at 3 to 3:30 p.m. the same day, establishes that the defendant was not in custody at the time of the photographic viewing. The defendant testified that he was arrested for the unrelated offense on May 6, 1976 and released a day or two later after a bond hearing. At trial Horace Witted testified that the defendant was arrested for the instant offenses on May 12, ...