Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Augustin Reyes, was charged in an information with murder and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1(a)(1), 9-1(a)(2), 33A-2.) In a jury trial defendant was found guilty of both offenses. The court entered judgment on the verdicts and sentenced defendant to serve 30 years in the Illinois Department of Corrections on the murder conviction. No sentence was imposed on the armed violence judgment.
On appeal defendant contends: (1) that the trial court erred in determining that there was an independent basis for the in-court identifications of defendant by two eyewitnesses; (2) that defendant was not proved guilty beyond a reasonable doubt; (3) that the trial court erred in refusing to allow the jurors to visit the scene of the crime and in permitting the testimony of five State witnesses to be read to the jury; and (4) that the cause must be remanded for resentencing on the murder conviction because the trial court improperly entered judgment on the armed violence conviction.
For the reasons hereinafter stated, we affirm the conviction and sentence for murder and vacate the armed violence judgment.
Two of the State's eyewitnesses, Deborah Udchik and Pamela Jones, viewed defendant at separate times in two lineups. Neither witness identified defendant in the first lineup, and both identified him in the second. Defendant was the only person who appeared in both lineups. Prior to trial defendant moved to suppress Deborah's and Pamela's identifications of defendant in the second lineup and their in-court identifications at trial.
At the suppression hearing, Deborah testified that at 9 p.m. on June 20, 1979, she and her boyfriend, Lozarro Torres, were conversing while leaning against a car parked on the east side of St. Louis near Wrightwood in Chicago. It was dark outside, and the closest street light was 200 feet away near an alley. Deborah first saw the defendant, whom she did not know, at a distance of 30 feet. Deborah and her boyfriend stopped talking as defendant walked towards them. At a distance of 15 feet, defendant said, "O.A. Love," and continued to approach them. Deborah looked at defendant as he walked towards them. When the man was within five feet of Deborah and Torres, he stopped, asked Torres, "Who are you?" and when Torres said, "No!", shot Torres once, then turned and fled from the scene.
Deborah estimated that "about a minute, a minute and a half" elapsed from the time she first saw defendant on the street until he ran after the shooting, and that 30 seconds passed from the moment he said "O.A. Love" until he shot Torres. During that 30-second interval, Deborah looked at and was able to see defendant's face. She described the assailant as five feet six inches tall, 140 pounds, and 17 or 18 years old. He seemed shorter than Deborah (who was five feet eight inches tall at the time), but she was not certain whether he was shorter or taller than she because she was leaning against a car. When asked if the man had any distinguishing marks on his body or face, she answered, "I don't know. I don't remember. I don't think so. I am not sure." When asked whether defendant wore glasses, or had a moustache or a beard, Deborah said, "I think he had a moustache." The defendant was wearing light blue "baggies" and a light colored "gauze-like" shirt with the sleeves rolled up.
Deborah testified that she spoke with the police at the scene immediately after the shooting and gave them a description of the assailant that was similar to the one she related at the suppression hearing. The court sustained the State's objection to defense counsel's question regarding whether Deborah had ever told the police that the shooter had a "black afro." Later in the hearing, she said that she did not know what an afro is. At trial, however, she denied that she had ever told the police that the offender had a black afro. That testimony was corroborated by Officer Sesso's statement that Deborah had told him that the offender's hair was combed back.
Pamela Jones, who was 16 at the time of the shooting, testified that at about 9 p.m. on June 20, 1979, she was riding her bike north on St. Louis towards Diversey when she passed the defendant who was walking south. After she passed defendant, she turned her bicycle around and followed defendant as he continued down the street. Pamela passed defendant again when he stopped on the corner of Drummond (which is 2634 North) and St. Louis. Pamela rode towards Wrightwood (2600 North), then went back to her home at 2625 North St. Louis. She put her bike in front of her house and walked to the curb. Pamela saw defendant "talking to two guys on the corner" of Drummond and St. Louis. Defendant then walked south on the sidewalk on the east side of St. Louis. Defendant passed directly in front of Pamela at a distance of five feet. It was dark and Pamela thought that a street light across the alley from St. Louis and Wrightwood was broken, but there were other street lights and she could still see. Pamela testified that she saw defendant's whole face and watched him for a minute as he walked past the front of her home.
After the defendant passed Pamela, she saw Lozarro Torres talking with his girlfriend Deborah Udchik near the corner of St. Louis and Wrightwood. About a minute and a half after defendant walked by, Pamela heard a gunshot and saw defendant standing at that corner. Defendant's back was towards her. Defendant ran east through an alley that was 15 to 20 feet from her home.
Pamela described the shooter as a dark-skinned, medium build Latin "not much taller" than she (Pamela was five feet four inches tall at the time) with short, dark brown or black hair that was "feathered" back and a "light" moustache. She could not remember the clothes defendant was wearing or what she had told the police about his clothes.
Both Deborah Udchik and Pamela Jones viewed a lineup a few hours after the shooting. They viewed the lineup separately. It was held in a large open room where the persons being viewed could see the witness who was viewing them. Deborah recognized defendant but did not tell the police because she was scared. Pamela told the police that she was not sure that she could identify anyone. Investigator James Lanners conducted the first lineup. He testified that Deborah and Pamela viewed the lineup separately. He told them that if they saw the person who had shot Lozarro they should tell him the number above that person's head. They did not have to point at the person or say anything out loud. Lanners stated that Deborah did not identify anyone, and Pamela, referring to the defendant's number, said, "I think that's him, but I'm not sure." According to Lanners, Pamela said she was scared or nervous and indicated that something was bothering her. Lanners admitted that in his written report he stated that both witnesses were unable to make an identification because they were nervous.
On the afternoon of June 21, 1979, Deborah and Pamela viewed a second lineup consisting of defendant and four other men. Defendant was the only man who appeared in both lineups. The lineup was conducted in a small office, and both Deborah and Pamela, who viewed the lineup separately, were able to see the men in the lineup through a peephole in a door. The men in the lineup could not see the witnesses. In the first lineup none of the men was asked to step forward or say anything. In the second lineup each man was asked to step forward and say the words, "O.A. Love." Both witnesses identified defendant. Pamela also testified that she recognized his voice because she had heard him say "O.A. Love" the night before.
Deborah testified that the assailant had combed-back short dark brown hair that just covered part of his ears. She admitted that a photograph of the persons standing in profile at the second lineup showed that defendant had considerably longer hair.
Investigator Neil Sullivan explained the procedures followed in the second lineup. Sullivan stated that defendant was five feet nine inches tall at the time of that lineup.
The trial court granted defendant's motion to suppress the lineup identifications of defendant by Deborah Udchik and Pamela Jones but ruled that there was an independent basis ...