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People v. Varela





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


George Varela and Eloy Ortiz were charged by indictment with armed robbery and three counts of aggravated battery. After a jury trial, both were found guilty of armed robbery and sentenced to seven years in the Illinois Department of Corrections. Defendant Varela appeals.

On appeal, defendant argues that (1) pretrial identification procedures were suggestive and evidence of the identification was therefore admitted improperly; (2) the State failed to lay the proper foundation for the admission of a weapon and analysis results of stains thereon; (3) he was not proved guilty beyond a reasonable doubt; (4) the trial court erred by failing to strike from the presentence report all arrests not resulting in convictions; and (5) his trial counsel was incompetent.

We affirm.

Complainant Earnest Mackey testified that while sleeping in his car on the early morning of February 13, 1978, he was awakened by the sensation of a person's hand in his pocket. Mackey struggled with his assailant and was cut by a knife on his nose, hand and left cheek. When the assailant backed away, Mackey exited from his car and saw the assailant and another man who had been standing nearby. The two men approached a red Chevrolet. Mackey noted the auto's license number on a piece of paper.

Mackey drove his car to a nearby corner. He stopped a squad car, told the policemen he had been robbed of about $150 and described his assailants and the car to which they had walked. The policemen directed Mackey to a hospital and proceeded to the area where the incident occurred. Mackey had been at the hospital for approximately 10 minutes when one of the officers arrived and asked Mackey to accompany him outside. Mackey was taken to the squad car. He identified two men in the back seat as the perpetrators of the crime.

At trial, Mackey identified defendant as the man who attacked him. He testified that at the time of the attack, defendant was approximately 5 feet 7 inches tall and weighed 145 pounds. His hair was black and he wore a black leather jacket and brown pants. The other man, whom Mackey identified as co-defendant Eloy Ortiz, was 19 or 20 years old, stood 5 feet 10 inches tall and weighed approximately 165 pounds. Ortiz wore a gray coat and light pants. Mackey gave similar descriptions to police after the incident.

Officer Julio Lucotti testified that he and his partner were stopped by Mackey on the morning in question. They travelled to the area where Mackey said he had been robbed and observed the auto which Mackey had described. A man whom Lucotti identified as Eloy Ortiz was standing at the rear of the car. Ortiz appeared to be pushing the car out of the snow. Another man, identified by Lucotti as defendant Varela, was seated in the driver's seat. Ortiz was wearing a gray jacket and tan pants. Varela wore a black jacket. When Varela was ordered out of the car, Lucotti saw a knife on the floor. He identified people's exhibit No. 1 as the knife. When Ortiz was searched, the officers recovered $157. The money was inventoried. Later when the police examined Ortiz' jacket, they noticed wet, red stains.

The parties stipulated to the results of tests performed by May Ann Mohon, a serologist employed by the Chicago Police Department. The tests indicated that Mackey had type "O" blood and that the coat was stained with type "O" blood. The knife was stained with human blood in too small an amount to determine the type.

Defendant testified that he had been at a party on the day and at the time in question. Ortiz had asked him to help push a car out of the snow. While doing this, police officers arrived and asked defendant if he had any knowledge of a robbery in the area. Defendant replied in the negative. Defendant further testified that he did not have a knife in the car and did not participate in the robbery.

First, defendant contends that evidence of Mackey's identification of his assailants at the hospital was improperly admitted. He maintains that a single suspect show-up such as that in the case at bar is unnecessarily suggestive and cites People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, as authority for this proposition.

While the court in Manion recognized the suggestive nature of showup procedures, it did not establish a per se exclusion of the identification evidence. It held that show-ups are permissible and justified where prompt identification was necessary for police to determine whether to continue their search. In fact, an officer has a duty to ascertain whether the victim can identify suspects in custody as those who committed the offense. Manion, citing People v. Elam (1972), 50 Ill.2d 214, 278 N.E.2d 76.

Evidence of show-up identifications is admissible if it is reliable under the totality of circumstances. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243; People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313.) In assessing reliability, the following factors must be considered: the witness' opportunity to view the criminal, the witness' degree of attention, the accuracy of the witness' prior description, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Manion, 67 Ill.2d 564, 571, 367 N.E.2d 1313, 1317, citing Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L.Ed.2d 401, 411, 93 S.Ct. 375, 382.

• 1 Upon examining the record in this case, we conclude that Mackey's identification at the hospital was reliable. He was able to view his attacker while struggling in the car. The car's dome light was on. He further observed the men as they crossed the street after the incident. The street was well lit. Mackey apparently paid close attention since his descriptions were very accurate. He identified the accused immediately upon confronting them and the ...

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