APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
In the evening of April 15, 1980, Sandra Antoff went shopping at the K-Mart Store in Cahokia, Illinois. She left the store at about 8:45 p.m. and walked to her car, which was located in the K-Mart parking lot, about three parking spaces from the store. It was dark outside, but the lot was illuminated by several streetlights, one of which was located one or two parking spaces away from Ms. Antoff's automobile.
She placed her packages in the back seat of the car, and, after she had inserted the keys into the ignition, but before she was able to enter the car completely, she heard a man call "Hey ma'am?" Ms. Antoff glanced around the parking lot and discovered that the man was addressing her. He walked up to her and stood within two feet of her, positioned so that she could not shut the driver's door of her car.
The man asked Ms. Antoff if she had seen his car, and he gave her a description of the vehicle. She told him that she had not seen it, and he replied that it must have been stolen, and requested that she give him a ride. She did not oblige and suggested that he report the incident to the police. Ms. Antoff repeatedly informed the man that she was in a hurry to pick up her daughter, but he refused to leave and instead motioned for another man to come to the car from a nearby fried chicken restaurant. The first man asked the second man if the keys had been left in his car, and when the second man replied in the affirmative, the first man said, "No wonder it is stolen then."
The second man, who was standing on the passenger side of Ms. Antoff's car, told the first that it would be "okay" if Ms. Antoff wanted to give the first man a ride, but he would wait for him at the chicken restaurant. The second man returned to the restaurant, and the first bent down, rubbed his stomach, told Ms. Antoff that he had just had surgery, and then drew a pistol. He told her not to say anything, and to move into the passenger's seat.
Ms. Antoff stalled until she saw a K-Mart employee, Tim Jones, walk across the lot. She called out to Jones that the man had a gun and intended to kill her. Jones, who was approximately 30 feet away, saw the man point a pistol at him, so he put his hands up and kept walking. Ms. Antoff then pushed her assailant and ran toward a group of youths on a nearby sidewalk. The man drove off in her car.
At this time, Ms. Antoff reported the incident to the police and a radio dispatch was sent out. Cahokia police officer Richard Watson picked up the dispatch and upon seeing the vehicle go past him gave pursuit. The driver pulled over to the side of the road, got out of the car and started to run. Watson turned his spotlight on the individual when he was about 100 yards from him, then gave chase on foot but was unable to catch him. The vehicle was dusted for prints, towed and processed. No fingerprints were found and no gun was recovered.
The following day, upon learning that he was wanted by the police, the defendant reported to the Centreville Police Department, where he was taken into custody by the Cahokia Police Department around 3:30 p.m. and arrested for armed robbery. Later that day, a group of nine photographs, including one of the defendant, was shown separately to Sandra Antoff and Officer Watson. Cahokia detective Charles Sharp told Ms. Antoff before she viewed the photographs that they had a suspect in the case and that his photograph was one of the nine. According to his later testimony, he may have told her that they had two suspects. She examined the first five pictures and stopped, stating that the suspect depicted in that photograph was her assailant. The defendant's picture was the fifth in the array. Detective Sharp did not remember whether she was informed that she had chosen their suspect. Ms. Antoff later testified that she did not know whether the suspect in the group had been picked up.
When Detective Sharp showed Officer Watson the array, he told him that a suspect's photograph was included in the array. From this group Watson selected photograph 5, which was the defendant's, and photograph 9 as looking most like the man he saw flee the car on the previous evening. Photographs 5 and 9 differed from the other pictures in that all four edges were straight, while three of the remaining seven pictures had one serrated edge, and the last four had two serrated edges. When Officer Watson stated that he was not definite about which picture belonged to the man he had seen, Detective Sharp told him that the suspect was featured in photograph 5.
On the morning of April 17, Detective Sharp informed the defendant, who had remained at the Cahokia police station overnight, that a lineup was going to be conducted. Sharp suggested that the defendant contact an attorney, and, as the defendant later testified, he called his attorney, Gary Apoian. According to the defendant, he was unable to speak to Apoian because he was said to have been on vacation. But, Sharp testified that after the defendant placed the phone call, he said that his attorney advised him to participate in the lineup. At a motion to suppress the defendant's pretrial identification, attorney Apoian was never called to verify or contradict the defendant's statement.
The defendant was then taken to the St. Clair County jail, where Sharp again stated that he could not refuse to be in the lineup, but that he could have an attorney present during that procedure. The defendant responded that he understood. A lineup was conducted in the midafternoon at the St. Clair County jail, as suggested to Sharp by a St. Clair County assistant State's Attorney earlier that day when Sharp had gone to the St. Clair County courthouse in an unsuccessful attempt to obtain an arrest warrant. Both Ms. Antoff and Officer Watson selected the defendant from the six men in the lineup.
Also on April 17, a criminal complaint was filed charging the defendant with armed robbery, and an arrest warrant was issued. It is not obvious from the record at what precise hour these documents were filed. The defendant moved to suppress all evidence pertaining to his pretrial identification, and following an evidentiary hearing, this motion was denied on July 1, 1980. After a jury trial on July 28, the defendant was found guilty of armed robbery and sentenced to 12 years' imprisonment. He appeals only from his conviction and argues that (1) he was denied his right to counsel at the lineup, (2) the pretrial identification procedures resulted in a denial of due process, and (3) the evidence introduced at trial was insufficient to prove him guilty of armed robbery rather than theft.
In support of his first argument, the defendant claims that he was entitled to counsel at the lineup under the authority of Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, and People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161, cert. denied (1973), 412 U.S. 951, 37 L.Ed.2d 1004, 93 S.Ct. 3017. The defendant interprets Kirby and Burbank as giving rise to a right of counsel at any time that "the adverse positions of government and defendant have solidified." (406 U.S. 682, 689, 32 L.Ed.2d 411, 418, 92 S.Ct. 1877, 1882.) In this case, according to the defendant, such a "solidification" of positions took place when an assistant State's Attorney became involved in the case on the morning of April 17 by suggesting that a lineup be held.
• 1 To this argument the People rely, and we believe correctly, that the reference in Kirby to "solidification" of adversarial positions was intended only as an explanation of the specific rule that the right to counsel at a lineup attaches when adversary judicial criminal proceedings have been initiated against the defendant, "by way of formal charge, preliminary hearing, indictment, information, or arraignment" (406 U.S. 682, 689, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1882), or, as the Illinois Supreme Court has stated, "by whatever means." (53 Ill.2d 261, 272, 291 N.E.2d 161, 167.) This last phrase, used in Burbank, was employed to show that the list of proceedings in Kirby is not exclusive. It does not dispense with the need for judicial proceedings as a prerequisite to the right to counsel, and in absence of any authority granting ...