Appeal from the Circuit Court of Cook County; the Hon. James
J. Heyda, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Antonio Hernandez, was convicted of murder and attempted murder and sentenced to concurrent terms of 30 years' imprisonment. On appeal, defendant argues that the trial court erred in denying his motion to suppress an in-court identification by witness Leobardo Lara, and identification testimony by witnesses Victor Rivera and Jose Padilla. Defendant also contends that the State's evidence was not sufficient to prove his guilt beyond a reasonable doubt.
The facts adduced at the hearing on the motion to suppress identification testimony follow. Witnesses for the prosecution testified that on March 15, 1980, shortly after 5:30 a.m., Leobardo Lara and Jose Rodriguez were shot in a social club located at 634 North Racine Avenue. Jose Rodriguez died as a result of the shooting. Leobardo Lara was severely wounded. Lara testified that on March 15, 1980, he went to the social club after work, arriving there at 5 a.m. Defendant was already in the bar. Lara began playing pool and while playing was shot in the stomach by defendant. This happened within an hour after Lara's arrival.
Lara testified that after the first shot he turned away from the pool table and saw defendant with a gun in his hand. Defendant pointed the gun at Lara and fired a second shot which misfired. Lara fell to the floor pretending to be dead. Lara testified that he then heard several shots and saw Jose Rodriguez fall. The club was not crowded at the time of the shooting. Defendant was standing one foot away from Lara. Defendant was wearing a long gray coat. Lara had seen defendant many times in the area of Chicago and Ashland avenues and knew defendant by the name of Sabor.
Lara talked to police officers while in the emergency room of St. Mary's Hospital. Lara testified that he told the officers what happened in the club and defendant's name. Lara also testified that he was shown two sets of photographs by police officers. He was shown the first set of photographs while in the intensive care unit and the second set after he was placed on the regular ward. Lara testified that on each occasion he was shown five or six photographs and he identified a picture of defendant as being that of the man who shot him in the club.
Officer Walter Siemieniak testified that he went to the hospital on March 15, 1980, and showed Lara one photograph of the defendant whom Lara identified as the shooter. *fn1
Victor Rivera testified that he was working as a bartender at 634 North Racine Avenue on March 15, 1980. He first saw defendant in the club at about 2:15 a.m. Over the course of the evening Rivera served defendant five Bacardis straight. Defendant left the club at about 4 a.m. and returned around 4:45 a.m. Defendant sat near the pool table which was approximately 40 feet from Rivera. Rivera further testified that at about 5:15 a.m. he heard shots in the club. He looked toward the pool table and saw Rodriguez fall. Defendant had a gun in his hand and was demanding that the door be opened.
Rivera described defendant as 5 feet 6 inches or 5 feet 7 inches, with a little mustache and beard and short sideburns. He testified that defendant wore a long green coat. He further testified that he had seen defendant in the area of Chicago and Noble avenues a couple of times before the shooting. Rivera had also seen defendant at Rivera's father's bar. Rivera worked there as a bartender for a period of five years and during that time defendant frequented the bar on most weekends.
Rivera was taken to the police station where he was shown books of photographs. Other people from the club were viewing photographs in the same room. Rivera did not identify anyone in the books. Rivera was then shown three photographs, two of which were of defendant, and he identified defendant as the shooter. Rivera testified that he did not view the three photographs with any other witnesses present. A week later Rivera identified defendant in a lineup at the police station. Rivera testified that he viewed the lineup with the witness Jose Padilla.
Jose Padilla was in the club at 634 North Racine Avenue on March 15, 1980. Padilla testified that he was standing at the bar talking to Victor Rivera when the shooting occurred. He heard the shots, looked toward the door and saw defendant with a gun in his hand. He heard defendant shout, "Open the door, goddamn it. Open the door." The club was well lit and Padilla stood approximately 30 feet from defendant. Padilla testified that he was only able to see the side of defendant's face when the shooting took place. He was afraid to look at defendant lest defendant shoot him. On examination by the court, Padilla testified further that he saw defendant's face for three minutes; he kept "looking at him about two minutes, two or three minutes, till the guy went out the door." He said defendant was wearing a raincoat from the military service which reached down to his calf.
Padilla testified that he was shown a book of photographs at the police station. He did not identify anyone in the book. He was later shown a single photograph of defendant whom he identified as the shooter. Padilla testified that he was sure of the identification even though in the photograph defendant did not have any hair. He further testified that he viewed a lineup two weeks after the shooting and identified defendant as the shooter. Padilla stated that he viewed the lineup alone.
Defendant contends that the trial court erred in denying his motion to suppress identification testimony by witnesses Victor Rivera and Jose Padilla. Defendant argues that the identification procedures used at the police station were suggestive and that neither witness had an independent basis for his identification testimony. Defendant notes in particular that two of the three photographs shown to Victor Rivera were of defendant and that Jose Padilla was shown only one photograph. Defendant also notes Victor Rivera's testimony that he viewed the lineup in the presence of another witness.
The standard for admitting evidence of out-of-court identification is whether there exists a very substantial likelihood of misidentification. (Neil v. Biggers (1972), 409 U.S. 188, 198, 34 L.Ed.2d 401, 410, 93 S.Ct. 375, 381.) Suggestive confrontations are disapproved because they increase the likelihood of misidentification. (Neil v. Biggers (1972), 409 U.S. 188, 198, 34 L.Ed.2d 401, 410, 93 S.Ct. 375, 381.) But the use of a suggestive procedure in and of itself will not support the exclusion of pretrial identification evidence. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243.) The reliability of the identification must be considered, and if it overcomes the suggestiveness of the procedures used, the testimony concerning the out-of-court identification may be admitted.
The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L.Ed.2d 140, 154, 97 S.Ct. 2243, 2253; Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L.Ed.2d 401, 411, 93 ...