APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Lenard Carlton, was charged by indictment with two counts of armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 18-2.) Following a bench trial, he was found guilty and sentenced to serve from 4 to 10 years in prison. Defendant appeals, contending (1) that his lineup was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process, and (2) that he was not proved guilty beyond a reasonable doubt.
Mrs. Ella May Catledge testified that on April 11, 1975, she was working at the grocery store she owned and operated in Chicago, Illinois. Around 10:35 a.m., Catledge went to the back room of the store. Her brother, Melvin Keys, was working in the front shopping area. Two men, one of whom Catledge subsequently identified as defendant, entered the store. Catledge remained in the back room, but heard their voices. One man asked to purchase some salami. The second man added, "Don't forget the cheese." Catledge then got up to see if her assistance was needed. She stood in the hall leading to the meat counter and observed the two customers. Catledge testified that defendant was one of those customers. She then saw defendant put a gun to her brother's head and announce, "This is it." Defendant forced Keys to lie down on the floor of the rear room. Catledge observed the other man take Keys' wallet.
Catledge further testified that the other man knocked over some scales and pushed her. She fell over some boxes in the hall. Defendant then forced Catledge and Keys into the "cooler" storage area and locked the door. Once inside the cooler, Catledge noticed that her brother's head was bleeding.
Catledge and Keys remained locked in the cooler for about three minutes until Steven Keys, Melvin's son, unlocked the storeroom. According to Catledge, examination of the store revealed that the cash register, meat case and display case all had been emptied. A handgun was also missing from the store.
Catledge also testified that on April 19, 1975, she observed a lineup. Two detectives took her to the police station; enroute they told her they were taking her to a lineup to make a positive identification of the robber or robbers. Catledge observed five men and picked defendant as the assailant. She also made an in-court identification of defendant.
On cross-examination, Catledge described the robber she believed to be defendant as 6 feet 2 1/2 inches tall and weighing 170 pounds. She testified that defendant had facial hair at the time of the robbery but that he didn't have facial hair when the lineup picture was taken. Defendant was wearing a black leather coat and black shirt during the robbery. Catledge did not give the police a description of the robbers. According to Catledge, on April 19 the police told her they wanted her to come to the station and make a positive identification.
On redirect examination, Catledge explained that the day of the robbery defendant had facial hair all around his face. At the lineup he had no facial hair, but Catledge identified him from his profile.
Melvin Keys testified that he helped Catledge run the grocery and was working at her grocery on April 11, 1975. At about 10:30 a.m. Catledge was in the back room when two customers entered the store. One individual asked to purchase some salami. Keys identified the other individual as defendant. Defendant said, "What you order so much for? You know I want some cheese." At this time Catledge walked from the back room and came into the store. Keys wrapped the salami and began to walk toward the cash register.
Keys further testified that defendant grabbed his shoulder, put a gun to the back of his head and told him, "This is it." The other man knocked some scales over, pushed Catledge down and stood over her. Defendant forced Keys into the back room and made him lie face down on the floor. He then removed Keys' wallet containing $400. Defendant next ordered Keys to get up and said, "If I find out that you lied about any more money in here, I am going to kill you." He then struck Keys on the forehead with the gun and said, "I ought to kill you anyway."
Keys and Catledge were locked in the cooler, but were released in less than five minutes by Keys' son. Keys discovered that all the meat in the display case was gone and that the cash register was emptied. Keys identified defendant in court as the individual who took his wallet.
On cross-examination, Keys testified that after the police arrived he gave a description of the man who robbed him. He was a young, black man, with a dark complexion, 140 to 150 pounds, and 6 feet to 6 feet 4 inches tall. Keys testified that the individual who robbed him had a thin mustache and wore a black leather coat and dark clothes.
Steven Keys testified that on April 11, 1975, at about 10:45 a.m., he drove to Catledge's grocery store. He parked in front of the store and saw two men leaving, carrying a box of uncovered meat and cutlery. On the basis of past observation, Keys testified that his aunt and father always packaged the meat they sold. The men quickened their pace and got into a car parked two car lengths in front of Keys' car. Keys described their car as a two-toned red and white 1967 or 1968 Plymouth. He memorized the license number of the vehicle: VX 4772. As the men exited, they almost hit another car.
Steven Keys further testified that at that point he panicked and ran into the store. The store was in disarray, cash registers opened, the scale knocked down and cake racks scattered. Keys shouted for his father. His aunt responded that his father was dead and that she was locked in a storage area. Keys unlocked the door and found his father was inside and bleeding from the head. He described his aunt as being "hopping mad." Keys then wrote down the license number of the car he had witnessed and called the police.
When the police arrived, Steven Keys described the two men. He described one as tall and thin, about 6 feet 2 inches or 6 feet 3 inches tall. This man was wearing a black leather coat. Keys made an in-court identification of defendant as the tall, thin man he had observed on the day of the robbery. Keys also gave the police a description of the getaway car and gave them the license plate number. About a week after the robbery, Keys saw the same car in a police parking lot.
On cross-examination, Steven Keys testified that he viewed the two men, including their faces, for a matter of seconds or moments. He stated that the tall man weighed between 150 and 160 pounds. Keys explained that he didn't see this man up close and couldn't tell if he had hair on his face. He testified that he had thin, angular features. Keys could not remember if he told the police the car was in a ragged condition. He testified that it was dirty. He told the police the body of the car was red. The car he saw in the police parking lot was red and white and was washed and waxed. Keys explained he could have told the officers that the car was "ragged" because it was filthy.
On redirect-examination, Steven Keys explained that he observed the robbers' faces when they came out of the store and when they paused and looked at him. As they walked quickly to their car, he could see the sides of their faces. He also ...