APPEAL from the Circuit Court of Cook County; the Hon. R.
EUGENE PINCHAM, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendants James Stuckey and Michael Harris were charged with attempt murder and armed robbery. (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4(a) and 18-2.) After a pretrial hearing the court quashed the arrests and suppressed both lineup and photographic identification testimony. The court also barred the in-court identification testimony of Donna Prack as a sanction for alleged police misconduct. However, the court denied defense motions to suppress in-court identification testimony of Ramon DelReal, Filiberto Meza and Maria Kelso. The State appeals pursuant to Supreme Court Rule 604. (Ill. Rev. Stat. 1975, ch. 110A, par. 604.) The issues presented for review are whether the arrests were based on probable cause, and whether the court's ruling barring the in-court identification testimony of Donna Prack constituted an abuse of discretion.
At the hearing on the motion to quash the arrests and suppress identification testimony, Officer Joseph Kirchens testified that about 9 p.m. on December 17, 1976, he investigated a robbery at the Say Mac Tap at 856 West 122nd Street in Chicago. He obtained descriptions of two men and also obtained information that three youths had almost been struck by a blue, 1976 AMC Pacer occupied by two men, as it sped away from the area of the tavern about the time of the robbery. After touring the area, Kirchens found a car matching the description parked three blocks north of the Say Mac Tap, and the youths identified it.
While observing the blue Pacer, Officer Kirchens saw Michael Harris and Tyrone Feemster park next to the Pacer and walk toward the Party Time Lounge, which was just around the corner. At that time several marked squad cars arrived with their lights and sirens activated. Kirchens asked the newly arrived officers what was happening, and he was told they were responding to a robbery at the Party Time Lounge. Then Harris and Feemster walked back toward Kirchens from the direction of the Party Time Lounge and he stopped them. Stuckey was stopped as he left the lounge. Kirchens asked them who owned the Pacer, and Stuckey said it belonged to a man named Sam, who was in the tavern. Kirchens asked other police officers to hold the men while he went into the tavern.
Kirchens inquired of the owner of the Party Time Lounge what had happened there and was told of the robbery by two males. During the robbery everyone had been on the floor except for James Stuckey, who was sitting on the jukebox with his hands in the air. The owner said that Stuckey reacted during the course of the robbery as if it did not concern him. After the robbery, Stuckey told the owner he would tell him the identities of the two robbers for $100.
James Stuckey testified that at 10:35 p.m. on December 17, 1976, he was approached by a police officer as he left the Party Time Lounge, and he was not in violation of any law. After being searched and handcuffed, he was taken to a police station and placed in a lineup.
Michael Harris testified that at 10:30 p.m. on December 17, 1976, he and Tyrone Feemster were stopped by police officers as they were entering the Party Time Lounge. They were searched along with James Stuckey, who had come out of the Party Time Lounge. Harris testified the police took his car keys and looked through his car. He and Feemster were then taken to the police station and placed in a lineup.
Officer Frank Sadler of the Chicago Police Department testified that while investigating the robbery of the Say Mac Tap, he had shown books of photographs to approximately 20 victims of the robbery, including Donna Prack and Ramon DelReal. Prack identified both Stuckey and Harris, and DelReal identified Stuckey. After Harris was identified in a lineup by Prack and DelReal, his photograph was placed in a packet with nine others and exhibited to other witnesses for identification. Maria Kelso and Filiberto Meza, who had been shot during the robbery of the Say Mac Tap, each identified Michael Harris from those photographs.
The court quashed the arrests and suppressed the lineup identification testimony as well as the photographic identifications.
At a hearing on a motion to suppress in-court identification testimony, Donna Prack testified she was at the Say Mac Tap on December 17, 1976, when two men, whom she had seen before on several occasions, came in about 8 p.m. She told police officers she had seen the robbers before, but she did not remember until later that she had seen them at the company where her boyfriend worked. She knew the last name of one of them was Harris. They remained less than 5 minutes and left.
About 45 minutes later, the same two men returned and committed the robbery which lasted about 6 minutes. She was able to see their faces from close range under good lighting conditions. She was able to describe both men and their clothing with particularity.
While at the police station, she looked through photo books for about 3 minutes and picked out two photographs that "resembled" the robbers, but she did not know whether they were the same people. About 12 people were looking at the photographs at the same time she did, and a majority of them picked out the same two pictures as resembling the robbers. At about 3 a.m., she viewed a lineup and picked out both Stuckey and Harris.
Ramon DelReal testified that the tavern was well lighted during the robbery which lasted about 5 minutes. While at the police station he looked at photo books, along with several other people, but he did not pick out anyone he believed committed the robbery. Thereafter, he twice viewed a lineup and on each occasion picked out the same person.
Filiberto Meza testified that he was shot during the robbery. While in the hospital he selected one photograph from a group of 10 as being one of the robbers. Maria Kelso testified she was working in the tavern on the night of the robbery. She saw both robbers but only remembered one. She was shot in the forehead but remained conscious and was able to see. Several days after the robbery, the police showed her several photographs and she recognized the man who shot her.
The court denied the motions to suppress the in-court identification testimony of Meza, Kelso and DelReal, but barred the in-court identification testimony of Donna Prack because, during the hearing, it was discovered that the two photographs which she and several others had picked out as resembling the robbers could not be found. The court relied on Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, and stated that the defense had been prejudiced because it had been precluded from the possibility of showing a lack of resemblance between the pictures selected and defendants. The court further stated that whether the misconduct was deliberate or accidental was not ...