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People v. Panczko





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. SKOLODOWSKI, Judge, presiding.


After a jury trial, Joseph Panczko was convicted of burglary and attempt theft and was sentenced to a term of 6 years in the Illinois Department of Corrections. Defendant appeals.

On appeal, defendant contends (1) that the trial court erred in permitting a State's witness to testify regarding his pretrial lineup identification of defendant; (2) that the trial court erred in admitting documentary evidence because no proper foundation was laid; (3) that defendant was denied a fair trial due to numerous statements by the State attacking the credibility of defense counsel; and (4) that the trial court abused its discretion and violated defendant's sixth amendment rights by excluding a defense witness not listed on the discovery answer.

We affirm.

Seymour Shein, a neighbor of the victim Alvin Lyons, testified that at approximately 3 a.m. on July 20, 1976, he observed a man breaking into the trunk of Lyons' car which was parked in front of Shein's home. The witness identified the man as defendant Joseph Panczko. Without having opened the trunk, the man fled down an alley to the north of Shein's home. An automobile then exited from the alley. After phoning the police, Shein returned to bed, but arose again after hearing noises at the front of his house. He observed defendant removing several cases from the trunk of the car and phoned the police once more. The witness then saw defendant flee without taking any cases. Further testimony revealed that Shein identified defendant in a lineup conducted later that morning.

Alvin Lyons testified that he was the owner of the car from which the cases were taken. The cases contained samples of clothing for which he paid approximately $2,500 to $3,000. The trunk of his car contained 6 or 7 garment bags. After receiving a call from Seymour Shein, Lyons went to his car and found five of the garment cases lying next to the car. One or two bags remained in the trunk and the trunk lock had been removed.

Officer Zigmund Majewski, a Chicago police department evidence technician, testified that when he arrived at the scene on July 20, he observed Mr. Lyons' auto with its trunk open and a Chevrolet parked in the rear of the building with its doors open and its keys in the ignition. Majewski had prepared a report on the incident, but the report in the officer's possession differed from the report which defense counsel had received through discovery in that the officer's report contained additional information about the lineup at which Mr. Shein identified defendant. When examined as to this discrepancy, Officer Majewski stated that other investigators who relieved him on the morning of the 20th duplicated that portion of the report which he had completed and then conducted the lineup. The additional information was therefore omitted from the first report which went into the file. After an in camera hearing, defense counsel was furnished with a copy of the more complete report and the report's contents were read into the record. Majewski was examined by both attorneys regarding the contents of the report.

Officer Muntaner testified that after receiving a call on July 20, 1976, he proceeded to an alley behind 6533 N. Kedzie. He drove down the alley and observed a 1971 Chevrolet. The license plate number was ET 8953. Upon returning to the station, he and his partner saw defendant and arrested him.

Officer Winchar testified that he conducted the lineup at which Shein identified defendant and identified defendant in a picture of the lineup. On cross-examination, Winchar testified that he included in his report defendant's claim that his auto was stolen. He further stated that no stolen auto report was prepared. On redirect, the prosecution asked if stolen auto reports were prepared when it has been determined that such a claim is a lie. An objection to the form of the question was sustained.

Defendant first argues that the trial court erred in admitting Seymour Shein's testimony regarding his lineup identification. He contends that this testimony is a prior consistent statement and was improperly admitted because the witness had not been impeached.

• 1 In People v. Gould (1960), 54 Cal.2d 621, 626, 354 P.2d 865, 867, 7 Cal.Rptr. 273, 275, the court, in comparing evidence of prior identifications and prior consistent statements, stated:

"Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial (People v. Slobodion, 31 Cal.2d 555, 560 [191 P.2d 1]), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached (People v. Hardenbrook, 48 Cal.2d 345, 351 [309 P.2d 424]; People v. Kynette, 15 Cal.2d 731, 753-754 [104 P.2d 794]), evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind."

In light of the above, we do not agree with defendant's characterization of the extra-judicial identification as a prior consistent statement. Moreover, an extra-judicial identification of an accused may be elicited by the prosecution. (People v. Killebrew (1973), 55 Ill.2d 337, 303 N.E.2d 377.) Therefore the trial court did not err in admitting the testimony in the absence of impeachment.

Secondly, defendant argues that copies of the automobile license application and certificate of registration were improperly admitted because the State failed to establish their relevancy. Specifically, defendant contends that the State failed to establish that defendant was the person named because the address of 4323 School Street listed on these documents differed from the address of 54323 School Street which was read into the record from the police report of the lineup. Defendant also argues that the car referred to in the documents, described as a ...

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