APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
L. GILLIS, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant Stanley Anton was convicted of armed robbery, unlawful restraint and armed violence. The trial court "merged" the unlawful restraint and armed violence convictions into the armed robbery conviction and sentenced defendant to a term of 6 years in the Illinois Department of Corrections. Defendant appeals.
On September 28, 1979, Constance Steinhauer was working at Richards Cleaners in Chicago. At about 6:15 p.m., a man, later identified as defendant, entered the store through the front door and asked for his cleaning. He did not have a ticket for the cleaning and gave his name as Thompson. While explaining this to Steinhauer, defendant was across the counter from her, about three feet away. No one else was in the store, which had fluorescent lighting and was also illuminated by daylight coming through the front door. Steinhauer described the man as big and tall and about 32 years old, with a high hairline and sandy brown hair.
After failing to locate the man's cleaning, Steinhauer turned away from defendant to telephone her father, who lived a block away from the store. While dialing the telephone she noticed defendant coming toward her. He bumped her and grabbed her right arm and told her to hang up the phone and keep looking toward the ground. He then pushed and pulled her by the arms to the rear of the store. Defendant put her in the boiler room, but when she complained it was too hot, put her in the bathroom. When she resisted and threatened to scream, defendant said he would kill her if she did so. Defendant then displayed a "silver and shiny" knife with a blade three to five inches long. Although the lights in the rear of the store were off, Steinhauer could see because the back door was open and let the daylight in.
Defendant left her in the bathroom. Approximately 15 seconds later she heard the cash register in the front of the store open and heard "change." Very shortly after hearing the cash register open she ran out of the store through the rear door. Shortly thereafter, she returned to the store but was afraid to enter. While standing outside, Steinhauer did not see anyone in the store but noticed that the clothes bags were pushed forward. When her father arrived, about 10 or 15 minutes later after defendant was in the store, she entered the building and checked the cash register, which was empty. There had been at least $60 in the cash register prior to the incident.
Steinhauer identified defendant in photographs, at a police lineup and at trial as the man who entered the cleaners and forced her with a knife into the bathroom at the rear of the store.
At the time of the robbery, James Reichard was working on a house behind the cleaners. He testified that he saw a man, whom he identified as defendant, run out of the cleaners followed, about 2 minutes later, by a girl screaming she had been held up. Reichard chased the defendant over some fences to a nearby parking lot where he saw defendant sitting in a gold Oldsmobile Toronado. Reichard then began beating on the window of the car. As the car left the lot Reichard noted that it had an Illinois license plate, number BW 5640. Defendant owned a brown and cream Oldsmobile Toronado with that Illinois license plate number.
Prior to trial a suppression hearing was held on defendant's motion to exclude Steinhauer's identification testimony. Defendant called two witnesses at the hearing. Before any testimony was taken, defense counsel noted that he had put defendant "some place else for the time being" because of "the identification problem."
The first witness was Officer Kinnane, a Chicago police investigator. He testified that he and his partner interviewed Constance Steinhauer, the complainant, approximately 1 week after the robbery and received an estimate of the offender's height and weight. With this information and the police report, Kinnane obtained a series of photographs of white males with medium brown hair. About 2 weeks after the robbery Kinnane and his partner showed Steinhauer the photos. When she came to defendant's picture, she told the officers that he was the man who robbed her. Defendant was subsequently arrested with a warrant on October 30, 1979. A lineup was held on October 30 or 31 in a Chicago police station. At the suppression hearing, Officer Kinnane explained the manner in which defendant was informed of his rights. Kinnane testified that after giving defendant his Miranda warnings,
"I then further informed him he was going to stand in a lineup. I stated further he had a right, since criminal proceedings had already taken place, to have that [sic] attorney present during such lineup if he so requested at which time he stated he understood the rights I asked him after each and every right I had given him and I asked him if he understood the rights fully and he stated he did. I asked him if he wished to have an attorney present to speak to an attorney and he said he did not."
Questioning of defendant ceased when defendant told the officers he would not make a statement.
Constance Steinhauer was the second witness called at the suppression hearing. Prior to her being called, however, defense counsel asked the court to allow defendant to stand outside the courtroom so he could hear the testimony while remaining outside the view of the witness. The court allowed counsel to put defendant outside the courtroom for the remainder of the hearing. Steinhauer testified about the robbery and her initial description of the man who robbed the cleaners. She also recalled being interviewed by two officers a few weeks after the incident and again a few weeks after that when they brought her some photographs to look through. Steinhauer said she picked the photo that "looked like" the man who robbed the store. The police then told her that they thought the man she picked out had committed the crime.
Steinhauer later viewed a lineup where she picked out defendant as soon as he entered the room. She was not shown any photos on the day of the lineup and testified at the hearing that she did not identify defendant solely on the basis of the earlier photos. Rather, she remembered him because of his face, hair line and "droopy" eyes. However, she shortly thereafter testified that the photographs given to her by the two police investigators, from which she identified defendant as the robber, did cause her to identify defendant at the lineup.
After hearing the testimony of the suppression hearing, the trial court concluded that the photographs shown Steinhauer were substantially similar and the array was not suggestive. The court further found that the lineup was fair and not suggestive and that defendant had declined the presence of counsel at the lineup. Based on these conclusions, the trial court denied defendant's motion to suppress complainant's identification testimony. The identification testimony was admitted at trial. Based in part on this evidence, the trial court concluded that defendant's alibi was weak and unbelievable and found defendant guilty of all three counts of ...