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People v. Brown

OPINION FILED DECEMBER 9, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHNNIE BROWN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Philip J. Carey, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Following a bench trial in the circuit court of Cook County, defendant, Johnnie Brown, was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) and sentenced to six years in the Illinois Department of Corrections. On appeal, defendant claims that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court erred in admitting the identification testimony of two witnesses to a subsequent crime, and (3) the trial court erred in denying defendant's motion to suppress identification. We affirm defendant's conviction.

On February 21, 1980, at about 11:20 p.m., Major Barrow, the complaining witness, was struck on the head from behind as he was entering his parked car. Two men threatened him with guns, took his wallet and money, and then drove off in his car. Barrow immediately called the police and gave them a description.

Approximately 40 minutes later, two men in a car, later identified as the car stolen from Barrow, collided with the back of another car occupied by two women, Maxine and Diane Griffin. The two men, both of whom were wearing ski masks, left the stolen car and entered the women's car; subsequently, both men removed their masks. Two days later, defendant was arrested, placed in a lineup, and positively identified by both Barrow and the Griffins.

On July 28, 1981, defendant's motion to suppress his identification on grounds of unreliability was heard and denied, and trial began immediately thereafter. The State presented its case in chief through the testimony of Major Barrow, the complaining witness. Maxine and Diane Griffin then testified to the corroborating identification of defendant as the driver of the stolen car, and a police department investigator outlined the procedures followed at the challenged lineup.

In response, defendant presented his alibi defense through his own testimony and that of his girlfriend, his sister, and his sister's common law husband. Last, the defense presented the testimony of the professional psychologist who had testified at the suppression hearing as an expert on memory and alleged that the lineup procedures were improperly suggestive. Following all the testimony and final arguments, the trial court found defendant guilty of armed robbery. Defendant's motion for a new trial was denied, and he was sentenced to a term of six years in the Illinois Department of Corrections.

OPINION

I

On appeal, defendant first argues that the State failed to prove him guilty beyond a reasonable doubt because Barrow's identification testimony, the primary evidence of defendant's guilt, was too unreliable to support a conviction. Defendant claims that the inaccuracy of the description Barrow gave the police immediately after the robbery is proof that Barrow did not have an adequate opportunity to observe any identifying characteristics of his assailant. Upon examining Barrow's testimony concerning the robbery and the subsequent lineup, we find his identification to be sufficiently reliable to support defendant's conviction.

Defendant agrees that where the identity of the accused is at issue, the testimony of a single witness is sufficient to convict, even if the identification testimony is contradicted by the accused, as long as the witness is credible and the accused is viewed under circumstances which would permit a positive identification to be made. (People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.) However, while neither perfect conditions nor a prolonged period to observe are necessary (People v. Porter (1975), 29 Ill. App.3d 456, 330 N.E.2d 599), the witness must have had an adequate opportunity to view the alleged offender at the time of the occurrence. (People v. Mays (1976), 38 Ill. App.3d 182, 347 N.E.2d 235.) Defendant maintains that Barrow had no such opportunity.

The test of a positive identification is whether the witness was close enough to the accused for a sufficient length of time under conditions adequate for observation. (People v. Thomas (1979), 72 Ill. App.3d 186, 389 N.E.2d 1330.) If the identification is reliable in light of the totality of the circumstances (Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967), its admission will be upheld. In Neil v. Biggers (1972), 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375, the Supreme Court further refined the test for a reliable identification by isolating five separate factors: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness at the identification confrontation, and (5) the length of time between the crime and the confrontation.

• 1 Applying those factors to the present case, we note that Barrow consistently maintained that even though he had been hit on the head and told not to look at his assailants, he looked directly into defendant's face during the robbery, which took place under a street light. He clearly remembered the two assailants' faces and clothing, what they said, the quality of their voices, where each was positioned, the subsequent movements each made, and where each of the two guns was pointed, all of which indicate that Barrow "had viewed [the scene] with the close attention accorded unusual occurrences." (People v. McTush (1980), 81 Ill.2d 513, 522, 410 N.E.2d 861, 866.) Further, Barrow testified that he had picked out defendant the moment he saw the lineup and never wavered in his identification. Finally, the lapse of time between the crime and the confrontation was only 36 hours.

The only factor in defendant's favor is the 7-inch, 30-pound discrepancy between Barrow's estimation of his assailant's height and weight and defendant's actual height and weight. Even though Barrow described the robber as 5 feet 3 inches tall and weighing 120 pounds while in fact defendant is 5 feet 3 inches tall and weighs 150 pounds, we do not regard that discrepancy as proof of a "substantial likelihood of misidentification." (Neil v. Biggers (1972), 409 U.S. 188, 201, 34 L.Ed.2d 401, 412, 93 S.Ct. 375, 383.) Looking down from his own height of nearly 6 feet 6 inches, Barrow might well have overestimated the difference in height and weight between the robber and himself. "[I]t is contrary to human experience to make an identification by noticing first the separate features * * * and then * * * running off a total to determine recognition or non-recognition. Ordinarily all features are viewed at once and the recognition made instantaneously or not at all. This is one of the reasons why minor discrepancies in identification do not require reversal." People v. Ervine (1965), 64 Ill. App.2d 82, 87, 212 N.E.2d 346, 349.

On balance, the majority of the factors indicate a reliable identification, and Illinois courts> have consistently held that height and weight errors in a complainant's description affect only the credibility of the witness and the weight to be given the testimony. (People v. Crawford (1980), 90 Ill. App.3d 888, 414 N.E.2d 25; People v. Nichols (1975), 32 Ill. App.3d 265, 336 N.E.2d 194.) In a bench trial, the determination of the credibility of witnesses and the weight to be given their testimony is a matter for the trier of fact and will not be disturbed unless palpably erroneous. (People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230.) After measuring the discrepancies against the remaining evidence, we conclude that the trial court's decision is not contrary to the weight of the evidence, nor the identification so unbelievable that any serious doubt of defendant's guilt has been raised. (People v. Crawford ...


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