APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was convicted of robbery and sentenced to a term of 5 years in the Illinois Department of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 18-1 and 1005-8-1(5)); the sentence was to run concurrently with another sentence previously imposed in an unrelated prosecution. The issues presented are (1) whether defendant's arrest was unlawful, tainting the subsequent lineup identification of him and rendering it inadmissible; (2) whether the victim's identification of defendant is insufficient to sustain a conviction; and (3) whether defendant was denied a fair suppression hearing by the trial court's refusal to call the victim as a court's witness.
The victim, Terrence Shields, was a cab driver. He was robbed on Sunday, August 6, 1978, at 1:30 a.m. in the area of Division and Noble in Chicago by his two passengers. The principal issue at trial was the accuracy of Shields' identification of defendant as one of his assailants.
Shields testified that defendant and another man hailed his cab on Division Street between State and Dearborn and directed him to drive to an address near Division and Noble. The trip took about 15 minutes, during which time Shields observed defendant, who was on the right hand side of the back seat, both by turning around to converse with him and by looking at his reflection in the rear view mirror. When Shields stopped at the requested destination, defendant put a stranglehold on him from the back seat. Defendant's companion, who had previously gotten out of the taxi, reached through the open window next to Shields and took his watch, change pouch and the money out of his wallet and shirt pocket. Throughout the robbery the vehicle dome light was on and Shields again looked at both men. One of the men then said he had a gun, and he ordered Shields to drive away. Shields complied, and he observed the men walk away into a nearby housing area as he left.
On August 29, 1978, two police investigators showed Shields five photographs, and he made a positive identification of defendant as one of the robbers, but he requested that he be allowed to see defendant in person in order to be absolutely certain in his accusation. The next day Shields viewed a lineup at the police station, where he made a positive identification of defendant.
Defendant denied robbing Shields but did not recall his whereabouts on the night of August 5, or the morning of August 6, 1978. He admitted, however, that he was living with his grandmother at Burling and Division and often visited his mother, who lived at Milwaukee and Noble in Chicago.
At the suppression hearing, defendant argued that his arrest was illegal, tainting the resultant lineup identification; that he was held for the lineup without being taken before a judge in violation of section 109-1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 109-1); and that at the time of the lineup formal adversarial judicial proceedings had commenced against him and he therefore had, but was denied, his sixth amendment right to counsel (U.S. Const., amend VI). Following an evidentiary hearing, the trial court found that defendant was properly in police custody at the time of the lineup, that no formal proceedings had commenced and defendant had no right to counsel, and that securing a lineup identification of defendant as a robbery suspect prior to taking him before a judge did not violate the Code of Criminal Procedure of 1963.
The following events preceded the lineup and in substantial part form the basis of this appeal. On August 30, 1978, defendant was on trial in the Maybrook courthouse for an unrelated criminal charge. Two Chicago Police Department investigators arrived at the courtroom to secure defendant's presence at a lineup in conjunction with the Shields' robbery. The jury was deliberating, and the prosecutor wanted to avoid anything that might have precipitated a mistrial, so he requested that the officers not take custody of defendant until after the verdict was announced. When the jury returned a guilty verdict, the presiding judge revoked defendant's bond and remanded him to the custody of the Cook County sheriff for transport to Cook County jail pending the sentencing hearing. The deputy confined defendant in the Maybrook courthouse lockup while awaiting defendant's transportation to Cook County jail. At that point, the Chicago police investigators received authorization from the Cook County sheriff's supervisor to take defendant to Area 4 Headquarters for the lineup, with the understanding that the officers would subsequently personally transport defendant to the Cook County jail. Three Cook County deputies testified that they would not release anyone in their custody to the police without a supervisor's authority, and a fourth deputy testified that he was ordered to turn defendant over to the investigators by his superior. At the time of the hearing the supervisor referred to was deceased. There was no specific regulation or statute authorizing the transfer of custody, only a general understanding that the sheriff's office should cooperate with other police departments.
Defendant's argument is that the supervisor's authorization to transfer custody of him to the Chicago police was in violation of the trial court's order directing the Cook County sheriff to take custody of him and to transport him to Cook County jail. Defendant posits that the proper procedure would have been for the police officers to secure a custody order from the judge who presided at the trial. Defendant reasons that he then would have been at the lineup pursuant to court order and would have had a constitutional right to be represented by counsel.
• 1 We find no authority to substantiate defendant's contention that the Cook County sheriff's supervisor violated the trial court's order or that the police investigators were required to obtain a custody order from the presiding judge. Nor do we agree that if the order had been issued by the trial judge that that would have constituted the initiation of an adversary judicial proceeding against defendant. Arrest warrants are, in fact, issued by judges, and the fact that a defendant is placed in a lineup after an arrest pursuant to a warrant does not alone institute a formal judicial proceeding.
• 2 The right to counsel does not attach until after the initiation of adversary judicial proceedings against an accused. The pre-indictment lineup was not a critical stage of a criminal prosecution, and defendant did not have a constitutional right to counsel at that time. (Kirby v. Illinois (1972), 406 U.S. 682, 690, 32 L.Ed.2d 411, 92 S.Ct. 1877; People v. Burbank (1972), 53 Ill.2d 261, 271-72, 291 N.E.2d 161.) Nor did such a right to counsel arise merely because at the time the lineup was held, defendant was in custody on an unrelated criminal matter. The lineup identification was not used in the earlier case, and ...