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People v. Anthony

OPINION FILED NOVEMBER 17, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LAWRENCE ANTHONY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. MAHON, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

This appeal presents a situation, fortunately rare, involving armed robberies of a small business on three consecutive days. After a jury trial, Lawrence Anthony (defendant) was found guilty of armed robbery of a wig store, operated by Herbert R. Kim, on April 8, 1978. He was sentenced to 15 years and he appeals.

The record reflects separate testimony on defendant's motion to suppress his identification and in chief. A summary of all of the testimony should be sufficient regarding the motion and the case in chief.

Other than police officers, the three prosecution witnesses are persons of Korean descent. Kim, the owner of the business, testified through an interpreter. About 10:30 a.m. on April 8, 1978, a black person came into Kim's store. This person was armed with a gun. He asked Kim for money. Kim identified this man as the defendant. He gave defendant $20 and five cans of hair spray and defendant left. The same man with a gun in his belt had entered the store on April 7, 1978, and taken money from the cash register and Kim's pocket. The defendant also entered the shop on April 9 about 2:30 p.m. As defendant entered, Kim produced a gun and yelled at defendant to raise his hands and leave. Defendant obeyed.

On April 10, 1978, defendant entered the store with two police officers. Kim immediately shouted defendant was the man who had robbed him. Defendant wore the same clothes on April 7, 8 and 9: blue jeans jacket and pants, cap and sunglasses. On two occasions Kim told the police defendant was tall and weighed over 130 pounds. Kim viewed defendant for less than 5 minutes on April 7 and 10 minutes on April 8.

Julius Bronstein, a police officer for 26 years, testified he interviewed Kim after the robbery on April 9, 1978. He noted down Kim's description of the offender. On April 10 he spoke to Kim again and received the same description. That same day he saw three black persons on the sidewalk. One of them conformed to Kim's description. He stopped a passing squad car. He and Officer Silvestrini went over to the suspect. Bronstein asked this man to accompany him to Kim's store because of the holdups. The man said he was innocent. In court, Officer Bronstein identified the defendant as that person. He was wearing a brown cap, blue windbreaker, blue jeans and sunglasses.

The two officers entered the store with defendant preceding them. Kim said, "That is the man." A search of defendant disclosed no weapon. The testimony of Officer Silvestrini corroborated the testimony of Officer Bronstein.

Karen Kim is the 18-year-old daughter of the store owner. She is a high school senior. At times she assisted her father in the wig store. On April 8, 1978, about 10:30 in the morning, she was in the store serving a customer. A black man entered and walked toward her father. He was wearing blue jeans, a dark blue windbreaker, sunglasses and a hat. She was 15 to 20 feet away. It was daylight. The lights in the store were on. There was no trouble with the lighting. The black man, whom she identified as defendant, "looked a little nervous." Her father told her in Korean that this was the man that robbed them yesterday, the man has a gun and she should be careful. She then looked at the man more closely from all angles. The customer gave her $2 and left and the man walked toward her. Her father took the $2 from the cash drawer and gave it to defendant. Her father said it was early and there were no customers. Defendant then asked for hair spray and her father gave him five cans of it. Defendant then left. Defendant had been in the store from 10 to 15 minutes. In the case in chief, she testified she was looking at the defendant for 5 minutes. On the motion, she testified she looked at him for 2 or 3 minutes. He was 5 to 10 feet from her and they were face-to-face when her father gave him the money.

On April 10, 1978, she went to the police station with her father and a relative of her father named Soon Hoon Yang. She could not recall the conversation during the ride. She did know the police had a suspect in custody. The police officers told her to look at the lineup and tell them if she could select someone. She looked at the lineup and picked out the defendant. When Soon Yang was brought in, Karen acted as interpreter and told her to select the man who robbed the store. In court she identified a picture of the lineup. She picked defendant because she recognized him. He was "a little taller" than the others.

Soon Yang testified through an interpreter. She did not testify during the case in chief. She was present in the store on April 7, 1978. She was robbed at that time. In court, on hearing of the motion, she identified a picture of the lineup and pointed out the defendant thereon. Karen Kim told her to come down to the police station. She did not talk to Karen Kim about the case. They viewed the lineup separately and the police did not let them speak to each other. Karen told her she had picked someone out of the lineup but simply asked the witness if she could remember anyone in the lineup.

At the time of the holdup she and Mr. Kim were the only two persons in the store besides one customer. She remembers the robber was tall, black, wore blue jeans and she thought he was wearing a hat. She looked at the man for a very short time, less than 5 minutes. The man was about 2 meters (about 6 feet) away from her.

Investigator Raymond Krull, a police officer for 18 years, conducted the lineup. He identified the defendant in court. At 8:30 p.m., Karen Kim and Soon Yang came to the police station. He told them they would view five men through a two-way mirror. Each man would walk toward them and they should advise him if they recognized anybody. The officer then spoke to the participants in the lineup. He told defendant he could choose his position. Defendant selected No. 3 position. The officer testified defendant was identified by both witnesses. He identified a picture of the lineup in court. Defendant was the only person wearing blue jeans and a blue jean jacket.

Defendant called as alibi witnesses his mother, two of his brothers, his cousin, and a friend. Since no reasonable doubt argument has been made, we need not summarize this testimony. Defendant raises three contentions.

I.

Defendant first urges an intentional and impermissible suggestiveness in the pretrial identification process. The burden of proving that the lineup procedure was impermissibly suggestive rests upon the defendant. (People v. Brown (1972), 52 Ill.2d 94, 100, 285 N.E.2d 1.) The frequently cited case of People v. Blumenshine (1969), 42 Ill.2d 508, 511, 250 N.E.2d 152, expressly requires that ...


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