Appeal from the Circuit Court of Du Page County; the Hon.
Helen Kinney, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Timothy H. Son, was charged by information with armed robbery and armed violence. In a bench trial, he was found guilty of both offenses and sentenced to seven years' imprisonment on the armed robbery charge. On appeal, defendant raises the following issues: (1) whether certain pretrial identification procedures were unduly suggestive; (2) whether the State failed to show by clear and convincing evidence that an independent basis existed for his in-court identification; (3) whether the trial court abused its discretion when it struck without an evidentiary hearing defendant's post-trial motion for a new trial based upon newly discovered evidence; (4) whether defendant was denied effective assistance of counsel; (5) whether the judgment of conviction entered for armed violence must be vacated; (6) whether the defendant was proved guilty beyond a reasonable doubt; and (7) whether cumulative error denied defendant a fair trial.
On June 28, 1979, at approximately 10:30 p.m. a man of oriental extraction entered the Taco Bell restaurant in Downers Grove, Illinois, approached the cash register, and requested that the cashier, Sherry Jones, give him change for a dollar. When Jones opened the register, the man drew a gun and demanded all the money. Jones backed away, and the man reached into the register, took money, and fled. A co-worker, Rebecca Fitzgerald, the only other person in the restaurant at the time, witnessed the robbery. The two witnesses each subsequently assisted the police in putting together composite drawings of the robber. Sherry Jones did not view any photographs until several days before trial at which time she identified the defendant from six photographs shown to her. She was told that Rebecca Fitzgerald previously had identified the defendant's photograph from those shown her although Jones was not told which photograph was that of the defendant. Rebecca Fitzgerald viewed various photographs the evening of the armed robbery but was unable to make any identification. On August 30, 1979, Fitzgerald went to the Downers Grove police station, viewed various photographs, and picked out a photograph of the defendant whom she identified as the robber. An arrest warrant was issued for defendant on September 21, 1979, and he was subsequently arrested on December 11, 1979. He was released on bond on December 28, 1979.
Jones and Fitzgerald were the only witnesses who testified at trial for the State. Sherry Jones testified that she viewed the robber for about 1 1/2 minutes at a distance of several feet; that she had no difficulty in observing the robber's facial features; that the robber had a bandana across the top of his head and wore sunglasses; that defendant was the robber; and that her in-court identification of defendant was based upon her view of him on the night of the crime. During her cross-examination, defense counsel was furnished the six photographs from which Jones had selected defendant's photograph several days before trial.
Rebecca Fitzgerald testified that she observed the robber from the time he walked into the restaurant; that she stood right next to Jones facing the robber during the crime; that nothing obstructed her view and that there were lights right above where the robber was standing; that she thought the whole occurrence took 10 to 12 seconds, but it could be shorter or longer; that she could observe the robber's complexion, the shape of his eyes and cheekbones, and some of his hair; and she was positive of her identification in court of the defendant.
At the conclusion of the State's case, the trial court denied a motion to strike all the testimony on the basis of the pretrial identification procedures. The defendant then testified he did not commit the armed robbery. He further testified that on the day of trial an assistant State's Attorney approached him, and, in the presence of Jones and Fitzgerald, asked if he was Tim or his brother. On redirect examination, he testified that he had been arrested "a couple of times" for things his brother had done.
Two assistant State's Attorneys testified in rebuttal that they had approached defendant in the hall on the day of trial and spoke to him briefly about whether he was Tim or his brother, but denied the two witnesses were present at that time.
On June 17, 1980, at the conclusion of trial, the court found the defendant guilty of both armed robbery and armed violence. New privately retained counsel, substituted for defendant's privately retained trial counsel on August 14, 1980, then filed a motion for new trial claiming newly discovered evidence. Attached to the motion was a copy of a transcript of a statement given to a court reporter under oath by defendant's brother which, in substance, related that he had committed the robbery at the Taco Bell restaurant on the evening in question. The State thereafter moved to strike the motion for new trial and contended that the motion for new trial failed to include an affidavit setting forth a statement of the defendant's due diligence in attempting to discover all evidence favorable to his defense prior to trial. After hearing oral arguments on the motion to strike, the trial court granted the motion to strike. A later motion for post-trial relief filed by defendant setting forth various allegations of trial error was denied. After a sentencing hearing, defendant was sentenced to seven years' imprisonment.
• 1 Defendant first contends that the State's failure to "turn over" composite drawings and photographs used in several pretrial photographic showups, and failure to provide notice of a photographic lineup held several days before trial, violated his right to discovery. While no discovery motion was made by the defendant, the court entered a form discovery order on its own which required, inter alia, that the State disclose to defendant's attorney all matters as required by sections (a), (b), and (c), of Supreme Court Rule 412 (87 Ill.2d R. 412), and provide copies of those materials that lend themselves to copying, and as to other materials, permit the defense to make an examination or photograph thereof. The State filed a document entitled "Disclosure to the Accused" which recited, in part, that "[a]ll physical exhibits are in the custody of the Downers Grove Police Department. They may be viewed by appointment at a mutually convenient time." The supplemental record includes a police report which makes reference to two photographic lineups and the identification of defendant by a witness, Rebecca Fitzgerald.
Supreme Court Rule 412(a)(v) (87 Ill.2d R. 412(a)(v)) provides for disclosure of "any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused." The composite drawings and photographs used in the various photographic lineups were not used by the State at trial, nor were they obtained from, nor did they belong to, the defendant. Unless photographs are favorable to the defense, they are not automatically discoverable by the defendant unless the prosecution intends to use them at trial or unless they were obtained from, or belonged to, defendant. (People v. Newbury (1972), 53 Ill.2d 228, 238, 290 N.E.2d 592; People v. Sakalas (1980), 85 Ill. App.3d 59, 70-71, 405 N.E.2d 1121; People v. Molsby (1978), 66 Ill. App.3d 647, 655, 383 N.E.2d 1336.) Moreover, there is no indication in this record of evidence not disclosed which is favorable to the defendant, such as a misidentification, or an inability to make an identification when shown photographs which include that of the defendant. (See People v. Elston (1977), 46 Ill. App.3d 103, 360 N.E.2d 518.) Thus, under the discovery order here which required only disclosure in conformance with Rule 412(a)(v), we reject defendant's contention that there was a discovery violation by the State's failure to "turn over" photographs used in the various lineups and any composite drawings of defendant as they were not used at trial or obtained from or belong to the defendant.
• 2 Defendant also maintains that the State's failure to provide defendant with this pretrial identification information and the failure to notify defendant of the photographic lineup conducted a few days before trial resulted in surprise, unfairness and his inadequate preparation which deprived him of due process and the right to a fair trial. Insofar as this argument relates to any discovery violation, it is rejected. The State complied with the discovery order and defendant does not cite us to any rule violation other than that previously contended relating to the State's duty to "turn over" this material, which we rejected above. In fact, we note that the State did answer in its discovery disclosure that all physical exhibits may be viewed by appointment, thereby affording defendant a further opportunity to view the photographs and composite drawings even though not required under the rule since they were not used in trial. It was defendant's obligation to pursue additional discovery, if necessary, or follow up on the State's disclosure provided to him. Nor do the discovery rules require notice to the defendant of a photographic lineup. Accordingly, we find the State complied with all discovery as required under the rule and as ordered in the trial court's discovery order. Nothing the State did denied the defendant the opportunity for a pretrial hearing on the question of the identification procedures. During the trial, the defendant was given adequate opportunity to cross-examine the State's witnesses on out-of-court identification procedures and, in fact, this was done. We find no merit to this argument.
• 3 Defendant next maintains that shortly before trial began, while he was waiting in the hallway outside the courtroom, the prosecutor approached him and in the presence of the two witnesses, Fitzgerald and Jones, asked him if he was Timothy Son. He asserts this resulted in an impermissible one-man showup. Two assistant State's Attorneys, however, testified that although this conversation with the defendant occurred, the witnesses were not present at that time. The trial court, at the time it found defendant guilty, specifically found that the defendant's testimony was not believable and accepted the two prosecutors' version of that occurrence. In a bench trial, it is the province of the trial court to determine the credibility and weight of the testimony, to resolve inconsistencies and conflicts therein, and to render its decision accordingly. The trial court, unlike the reviewing court, was in a position to observe the witnesses. (People v. Berland (1978), 74 Ill.2d 286, 305-06, 385 N.E.2d 649; People v. McCoy (1979), 78 Ill. App.3d 157, 162, 397 N.E.2d 79.) We find no basis to disturb the findings of the trial court on this issue, and we reject defendant's argument.
• 4 In addition, defendant contends that the witness, Sherry Jones, remained in the courtroom after all witnesses had been excluded, thus allowing her to view the defendant when he approached the bench after the case was called for trial. While the record does indicate that Jones admitted viewing the defendant approach the bench when the case was called, it also reveals that the motion to exclude witnesses was not made until a short while after the case was announced. From our examination of the record, Jones' presence in the court at the start of trial does not indicate an intentional design by the State to have a showup. Rather, she was simply present to testify, and subsequently did testify as the State's first witness. (See People v. Wolf (1977), 48 Ill. App.3d 736, 740, 363 N.E.2d 402.) The State has no duty to conceal a defendant from all potential witnesses throughout all preliminary hearings preceding an actual trial (People v. Martin (1970), 47 Ill.2d 331, 338, 265 N.E.2d 685), nor should one be self-imposed at trial.
• 5 The defendant also contends that a photographic showup approximately one year after the crime and several days before trial at which the prosecutor handed the witness, Sherry Jones, six photographs and advised her that Rebecca Fitzgerald had already identified one of the pictures as that of the robber was improper and impermissibly suggestive. While showing a defendant's photograph just prior to trial to a witness who has never made an identification of a defendant has been condemned (People v. Martin (1970), 47 Ill.2d 331, 338, 265 N.E.2d 685, People v. Freeman (1978), 60 Ill. App.3d 794, 802, 377 N.E.2d 107, aff'd (1979), 79 Ill.2d 147, 402 N.E.2d 157), the "highly suggestive" procedure employed in Martin and Freeman was the showing of a defendant's photo alone. Here, the witness was shown six photographs, and there is no challenge on this appeal that the photographs themselves were suggestive. Moreover, while it is preferable that the witness not be told that a suspect is included in a particular photoarray, that will not taint an otherwise fair identification procedure. (People v. Harrell (1982), 104 Ill. App.3d 138, 146, 432 N.E.2d 1163.) The fact that a ...