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People v. Lewis

OPINION FILED APRIL 7, 1981.

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

v.

CLYDE LEWIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, Judge, presiding.

MR. JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Defendant was convicted of armed violence, attempted armed robbery, and aggravated battery. He presents four issues on appeal: (1) that the trial court erred in admitting evidence and its fruits obtained in violation of the Juvenile Court Act; (2) that it was error to admit a statement of defendant not revealed to defense counsel at the discovery stage; (3) that the prosecutor's erroneous remark during his opening statement concerning defendant served to deny defendant a fair trial; (4) that the conviction and sentence for aggravated battery must be vacated as a lesser included offense of armed violence.

We vacate the conviction and sentence for aggravated battery but affirm the conviction of armed violence and attempted armed robbery.

On May 18, 1979, Robert Irizarry, visiting with friends at his brother's garage in Waukegan, was approached by four young men. Irizarry testified that one of these young men asked him for a cigarette. When Irizarry replied that he had none, the young man pulled a gun out of his jacket, placed it near Irizarry's face, and asked for his wallet. As Irizarry reached for it, the man backed up and fired the gun, hitting one of Irizarry's hands.

On July 2, 1979, the victim was shown a photo lineup at the Waukegan police department. He picked out two photographs, both of which were of defendant. The photographs were from juvenile bureau records. The next day police called defendant in for questioning. The police photographed defendant and obtained a statement. The victim later identified this photograph as depicting his attacker. The juvenile bureau photographs and the photograph taken on July 3 were all admitted into evidence at trial.

As his first assignment of error, defendant argues that the photo identification made from juvenile bureau photographs violated the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701-1 et seq.) and that the trial court should have excluded any evidence regarding that identification procedure. He adds that this identification tainted, and thus rendered inadmissible, the subsequent photo identification and his statement to police.

• 1 Defendant urges the application of the exclusionary rule, with its attendant "fruit of the poisonous tree" doctrine, to this evidence. The exclusionary rule, however, is a "judicially created means of effectuating the rights secured by the Fourth Amendment." (Stone v. Powell (1976), 428 U.S. 465, 482, 49 L.Ed.2d 1067, 1081, 96 S.Ct. 3037, 3047.) We recently held the exclusionary rule to be equally applicable in the sixth amendment right to counsel area. (People v. Smith (1980), 91 Ill. App.3d 438, 414 N.E.2d 1281.) Application of this rule in the case of a violation of the Juvenile Court Act and evidence obtained as a consequence of that violation would be a novel remedy and one bearing no relation to the purpose of the exclusionary rule. We decline to apply it here.

At any rate, the propriety of the admission of the July 3rd photograph and statement is not subject to our review. Defendant raised no objection to their admission on the grounds he now urges at the time they were admitted into evidence. He also did not argue this in his motion for a new trial. A reviewing court will not address issues raised for the first time on appeal. Wilson v. Clark (1981), 84 Ill.2d 186, 417 N.E.2d 1322; People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.

• 2 Defendant's contentions regarding the propriety of the use of juvenile bureau photographs for identification purposes and the admission of those photographs at trial are properly before us, however.

Section 2-8(3) restricts the disclosure to the public of police records concerning minors.

"The records of law enforcement officers concerning all minors under 17 years of age must be maintained separate from the records of arrests and may not be open to public inspection or their contents disclosed to the public except by order of the court or when the institution of criminal proceedings has been permitted under Section 2-7 or such a person has been convicted of a crime and is the subject of pre-sentence investigation or proceedings on an application for probation." Ill. Rev. Stat. 1977, ch. 37, par. 702-8(3).

The photographs, "mug shots" of defendant, were from juvenile bureau records. No court order was obtained before they were shown to the victim, a member of the public.

We find the reasoning of the supreme court in People v. Zepeda (1970), 47 Ill.2d 23, 265 N.E.2d 647, useful in our analysis of this issue. In that case, the defendant sought suppression of his confession obtained, he argued, while he was detained in violation of section 3-2 of the Juvenile Court Act. Assuming that the defendant was so unlawfully detained, the court nevertheless held that the confession was admissible. Nothing in section 3-2, nor in any other provision of the Act, imposed sanctions for an unlawful detention of a juvenile. Further, the court reasoned that an unlawful detention, of itself, does not invalidate an accused's confession or statement.

Section 2-8(3), the section of the Act pertinent to our analysis, does not impose sanctions for unlawful disclosure. Neither does any other section of the Juvenile Court Act. Moreover, there is no suggestion that the use of defendant's photograph in the photo lineup created a condition where his identification by the victim could be considered unreliable. The remedy for violation of this section of the Act does not lie in withholding at trial the fact that ...


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