APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Eddie Rufus and four others were charged with the murder of Michael Simkins. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1.) Defendant Rufus was tried alone before a jury and found guilty. He was sentenced to a term of 40 years.
Michael Simkins was shot to death on the sidewalk of North Mohawk Street in the city of Chicago, near the Cabrini-Green housing project. The shooting occurred on April 29, 1979, at approximately 5:15 p.m. Two eyewitnesses testified for the State. Owen Terry was sitting in a parked car when he heard a gunshot. He testified that he turned and saw two men standing over a man lying on the ground. One man had a gun which he pointed at the victim's head, from a distance of about 1 1/2 feet, and fired another shot. The two men then fled.
Grover Evans, 18 years old, was acquainted with the victim. Two nights before the shooting, he, Simkins, and Makia Davis met with defendant Rufus and four of his companions. Defendant asked Evans for the money obtained from a cab driver holdup, and then stated that he had a contract out on the lives of Evans, Simkins, and Davis.
The day of the incident, Evans, Davis, and Simkins went to Farmer Brown, a chicken and ribs restaurant. There, they encountered defendant and two companions. Defendant told Michael Simkins that "he was going to be fried like hot links." Subsequently, Evans and Simkins were standing on Mohawk Street eating their chicken when three men with handguns, identified as defendant, "Bear," and Rick Stone, appeared and fired at Evans and Simkins, hitting Simkins. He fell, and defendant approached, stood directly over Simkins, and fired a shot into his head from a distance of 1 1/2 feet.
Two days after the shooting, defendant surrendered to the police. A lineup was conducted for Owen Terry and he identified defendant. At a hearing on defendant's motion to suppress the out-of-court identification, Owen Terry and Investigator Lawrence Flood testified, after which the trial court denied the motion to suppress.
The other major trial witnesses for the State were Officer Masalski, who arrived on the scene soon after the incident, Bahaadar Mujaahid, a friend of defendant, and Investigator Flood, who testified to statements he had taken. The testimony of Mujaahid will be recounted in detail in the discussion of the issues.
We first consider defendant's claim that the trial court erroneously denied his motion to suppress the out-of-court identification made by Owen Terry. We disagree. Terry, an eyewitness to the shooting, identified defendant in a lineup. Defendant's motion to suppress the out-of-court identification was denied after a hearing, and Terry subsequently testified to that identification. Terry was unable to make an in-court identification of defendant.
Two days after the incident, defendant surrendered to the police. A lineup was then conducted for Terry. Terry previously described the suspect to the police as a black male wearing a grey cap, green jacket, and light blue pants. Defendant was wearing similar clothes when he surrendered and was placed in the lineup. Defendant's cap was placed, in turn, on all six men in the lineup.
Terry stated that he never saw a front view of the suspect's face during the shooting, and during the lineup could not identify defendant by his face. The identification of defendant in the lineup was based primarily on defendant's clothes, according to Terry.
Defendant claims that the lineup identification should have been suppressed as the fruit of a suggestive lineup. Defendant cites Israel v. Odom (7th Cir. 1975), 521 F.2d 1370, which we read to support the proposition that the instant lineup was not unconstitutionally suggestive. There, the description of the defendant included eyeglasses. At the lineup, defendant was the only one of five men wearing glasses. Further, Odom was 5'5 1/2" tall, while three of the other four men in the lineup were over 6' tall. The court of appeals held there were sufficient indicia of reliability present to permit the admission of the lineup identification.
• 1 A lineup identification will be admitted at trial even if the lineup procedure was suggestive, so long as there are sufficient indicia of reliability surrounding the identification. Several important factors to be considered are set out in Neil v. Biggers (1972), 409 U.S. 188, 199-200, 34 L.Ed.2d 401, 411-12, 93 S.Ct. 375, 382-83. Upon our consideration of these factors and the totality of the circumstances, we find sufficient indicia of reliability in the instant identification to permit its admission.
Alternatively, defendant contends that any lineup identification based primarily on the clothing of the suspect is per se invalid and must be suppressed. Terry was vigorously cross-examined concerning the lineup, and the jury was fully aware of the circumstances surrounding it. That the identification was based primarily on clothing goes only to the weight to be given the identification by the jury, not its admissibility. The cases cited by defendant support this conclusion. (See People v. Versher (1977), 52 Ill. App.3d 148, 150, 367 N.E.2d 311; People v. Reed (1968), 103 Ill. App.2d 342, 346-49, 243 N.E.2d 628.) We find this contention without merit. The trial court properly denied the motion to suppress.
Defendant contends that the trial court's order clearing the courtroom of certain spectators during the testimony of Owen Terry deprived him of his right to a public trial. Prior to Owen Terry's testimony on the motion to suppress, the trial court held an in camera hearing, on the State's request, to close the courtroom during Terry's testimony. The defense objected. The trial court ordered the courtroom closed. Subsequently, during Terry's testimony in the trial, the courtroom was also closed based on the evidence adduced at the earlier in camera hearing.
At the in camera hearing, Owen Terry testified that he was afraid to testify, and that certain incidents occurred which he perceived as threats. He had sent two of his children out of town. He received a phone call in which a male voice said, "Did you get the message?" Shots were fired at his front porch and his automobile was vandalized. The trial court believed that Terry was afraid and thus issued the closure order. The order limited access to the courtroom during Terry's testimony to the parties, their attorneys, other defendants on the trial court's call and their attorneys, the press, and court personnel. Subsequently, a group of high school students on a field trip was allowed to remain in the courtroom during Terry's testimony.
Defendant claims that his right to a public trial under the sixth and fourteenth amendments was violated, citing the recent cases of Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 65 L.Ed.2d 973, 100 S.Ct. 2814, and Gannett Co. v. DePasquale (1979), 443 U.S. 368, 61 L.Ed.2d 608, 99 S.Ct. 2898. Those cases, however, deal with the right of the press and the public to attend a trial when all parties and the trial court agree to closure.
We consider the relevant case law to be that which deals with situations where the courtroom was closed over defendant's objection, as in the instant case. People v. Latimore (1975), 33 Ill. App.3d 812, 342 N.E.2d 209, appeal denied (1976), 62 Ill.2d 591, and United States ex rel. Latimore v. Sielaff (7th Cir. 1977), 561 F.2d 691, cert. denied (1978), 434 U.S. 1076, 55 L.Ed.2d 782, 98 S.Ct. 1266, deal with the same trial. In Latimore, the courtroom was closed during the testimony of the victim in a rape trial, but remained open during the testimony of the other eight witnesses. The press was allowed to remain, although it is unclear whether any reporters were present. Both the appellate court and the court of appeals approved of this procedure.
The court of appeals stated that the right of the defendant to have ordinary spectators present at trial was not absolute, but must be balanced against other interests which justify excluding them. We agree. In Latimore, the other interest was the concern for the rape victim. The court noted that society has an interest in lessening the ordeal of the victim, thereby encouraging her to report the crime. The court also noted that the closure order was drawn as narrowly as possible.
• 2 We find the instant case very analogous to Latimore. Here, the interest balanced against defendant's right to a fully open courtroom is the safety of the witness. Society has an interest in encouraging those who witness murder to testify. The closure order in the instant case only applied during the testimony of Owen Terry, and the press and various other persons were still permitted in the courtroom. We fail to see how the defendant was prejudiced. We hold that the closure order of the trial court was proper.
Defendant argues that the trial court placed an improper limitation on defense counsel's cross-examination of Grover Evans, who testified as a prosecution eyewitness to the shooting of Michael Simkins. He positively identified defendant as one of the people who shot at Simkins initially, and as the person who fired the second shot directly at Simkins. Evans also supplied a motive for the shooting. In sum, Evans was a critical witness for the State.
In turn, Evans was subject to a great number of impeachment questions on cross-examination which took two principal forms. First, Evans was examined about a prior tape-recorded inconsistent statement that was given to defense counsel. Evans had earlier stated that he didn't see who fired the shots, as he was too drunk at the time. There was extensive cross-examination concerning this prior statement.
Second, Grover Evans was impeached by reference to various aspects of his criminal background. Reference was made to a prior conviction for criminal trespass to a vehicle and to his currently being on probation. Evans was, at the time of his testimony, charged by information with armed robbery, aggravated battery, and home invasion, and resided in Cook County jail. Defense counsel was permitted to bring before the jury that Evans had felony charges pending and that he had been recently moved to the witness quarters of the county jail. Counsel also asked a number of questions concerning whether any leniency had been promised in return for Evans' testimony.
The trial court, however, refused to allow disclosure to the jury of the specific nature of the pending charges (i.e., armed robbery). Defendant claims that this constitutes reversible error. He claims that he was entitled to show the bias of the witness by showing that the witness was currently charged with a crime by the same authority that was prosecuting the instant case. Defendant argues that, ...