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People v. Johnson





Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.


Defendant Alan Walker was convicted in the circuit court of Champaign County of the offenses of murder, attempt (murder), and armed robbery and was sentenced to natural life imprisonment for murder and concurrent terms of 50 years for armed robbery and attempted murder. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1, 8-4, 18-2.) Defendant Johnson entered a negotiated plea with the State, and no appeal was taken. (See People v. White (1984), 122 Ill. App.3d 24.) Our references to defendant herein relate only to defendant Walker. Defendant argues here that (1) the trial court erred in denying a motion to suppress physical evidence seized from the vehicle he was driving; (2) a pretrial lineup was unnecessarily suggestive; (3) he was not proved guilty beyond a reasonable doubt; (4) the trial court erred in allowing the admission of expert testimony; (5) his right to a representative jury was violated by excluding certain jurors for cause; (6) the instructions for attempted murder were erroneous; and (7) the trial court abused its discretion in sentencing him to natural life imprisonment. We affirm.

The evidence at trial indicates that on August 6, 1982, at a rest stop along Interstate 57, near Pesotum, Illinois, Waymond Jackson was killed from a shotgun blast to the back of the head and his companion, Donald Stewart, was shot several times with a handgun, sustaining permanent injuries. The testimony discloses that the victims were running a prostitution operation at the rest stop and were shot by operatives of a rival group of pimps. Four prostitutes, working for the victims, Angela Andujo, Carmen Lucas, Gabrie Davis, and Shirley Bond, were with the victims and were eyewitnesses to the slaying. They immediately advised State police of the crime and an emergency dispatch was broadcast over the State police emergency network that a possible suspect vehicle was a silver, newer model car with license number XF 7184.

The State police dispatch was monitored by Farmer City police officer Larry Jacobsen and he, along with De Witt County deputy Chuck Wells, proceeded to the intersection of routes 150 and 54, approximately 40 miles northwest of the crime scene. Within minutes, Officer Jacobsen observed a 1980 Silver Chevrolet Malibu with license QV 7834, with one headlamp, stop near the intersection and back off the roadway. Officer Jacobsen started to drive toward the vehicle when it turned into the lot where he was positioned. Walker stopped the car, exited the vehicle and yelled "officer, officer." Jacobsen instructed Walker to drive into a nearby gasoline station parking lot so they could talk, and defendant pulled into the lot with Officer Jacobsen behind and Officer Wells in a separate vehicle on the other side of defendant's car.

Walker exited the vehicle and proceeded to explain that he had been driving from the Champaign area (near Pesotum) toward Chicago and was lost. Jacobsen apparently gave defendant directions but then walked to the front of the car to point out the inoperable headlamp. Defendant was asked to produce a driver's license, but he said he did not have one. Jacobsen also noted another person lying in the back seat and requested Deputy Wells to get this person out of the car. Jacobsen then obtained identification from the other person, Doyle Johnson, and asked defendant for identification which he did not have. Walker gave Jacobsen his name and date of birth and Jacobsen returned to his squad car to run a vehicle check. According to Walker, Officer Wells then opened the back door of the vehicle, began a complete search of the car on his hands and knees, and located a live round of .357 ammunition. Officer Wells, however, stated that he observed the round in plain view while standing outside the vehicle.

Another De Witt County deputy, Officer Chick, who was called as a backup, testified that he had also monitored the State police dispatch and was aware that the homicide suspects were two black males, as were defendant and Johnson, and one of the suspects was bearded and wearing a maroon baseball cap as was Walker. During the stop, Jacobsen was in contact with the local police dispatcher, who in turn was in contact with the State police, to verify information about the vehicle registration. At some point during the radio broadcast, Officer Jacobsen relayed a description of Walker and Johnson and the similarities between the descriptions led the officers to suspect defendants' possible involvement in the shooting earlier that morning. The car and suspects were then fully searched and a bag believed to contain cannabis was found, although no weapons were found in the car. Walker was arrested for improper lighting, driving without a license, failure to display a license, and failure to possess a firearm owner's identification card.

• 1 Walker first argues that the trial court erred in denying his motion to suppress items of evidence taken from the automobile. The trial court denied the motion to suppress on the ground that the search was justified for a number of reasons aside from having probable cause to believe that Walker and Johnson were the assailants in the homicide. The court found that the officers had probable cause for the stop based upon the defective headlamp, and found credible Officer Wells' testimony that he discovered the round of ammunition in plain view. The court concluded that once the round of ammunition was discovered in plain view and it was discerned that neither Walker nor Johnson had a firearm owner's identification card, either a limited Terry search was proper (see Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868) or a full search incident to an arrest. Walker's challenge on appeal to the trial court's findings relates primarily to the court's factual conclusion that Officer Wells discovered the ammunition in plain view. Defendant charges that the facts indicate practical impossibility for such an observation since Wells did not have a flashlight, there was no overhead lighting in the area, and the car doors were shut.

From the inherent limitations of appellate review, it is not for this court to determine the weight and credibility of evidence. It is the province of the judge hearing the motion to suppress to determine the witnesses' credibility and the weight to be given their testimony since he had the advantage of observing their demeanor while testifying. (People v. Chandler (1967), 84 Ill. App.2d 231, 228 N.E.2d 588.) A circuit court's ruling on a motion to suppress will not be overturned unless it is found to be clearly erroneous. People v. Clark (1982), 92 Ill.2d 96, 440 N.E.2d 869.

We find the trial court's conclusion is not clearly erroneous, and the record suggests other theories to support the officers' actions in searching the vehicle and its occupants. The "stop" of defendant by Officer Jacobsen (if Officer Jacobsen's request that defendant pull in the gasoline station parking lot can even be deemed a stop) was supported upon probable cause to make an arrest for the traffic offense, and once a stop is made, a limited search of the vehicle and occupants is permissible if the circumstances reasonably indicate that the officer is dealing with a criminal rather than an ordinary traffic offender. (See Michigan v. Long (1983), 463 U.S. 1032, 77 L.Ed.2d 1201, 103 S.Ct. 3469; People v. Lichtenheld (1976), 44 Ill. App.3d 647, 358 N.E.2d 694.) Moreover, Walker's arrest for the traffic offenses likewise justified a search incident to the arrest. (United States v. Robinson (1973), 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467; Gustafson v. Florida (1973), 414 U.S. 260, 38 L.Ed.2d 456, 94 S.Ct. 488.) Finally, the similarities between the description of defendant, the vehicle, and the State police broadcast furnished sufficient probable cause to believe that the vehicle contained fruits or instrumentalities of a crime. (Carroll v. United States (1925), 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280; Colorado v. Bannister (1980), 449 U.S. 1, 66 L.Ed.2d 1, 101 S.Ct. 42.) It may not have been apparent that defendant was a possible homicide suspect when he was initially stopped, but by the time Officer Chick had arrived and Jacobsen had discussed Walker's description with the local police dispatcher, sufficient information was in their possession for a finding that probable cause existed to connect the defendant with the homicide. In light of the conclusions reached, it is unnecessary to respond to the State's argument that defendant lacks standing to question the search and seizure. See People v. Flowers (1982), 111 Ill. App.3d 348, 444 N.E.2d 242.

• 2 Defendant also raises an issue as to the composition of a pretrial lineup. On August 6, 1982, the same day of the offense, defendant and co-defendant, Doyle Johnson, were placed in a seven-man lineup. All the persons in the lineup were black, clad in jail uniforms, six had mustaches, and two had beards. Their heights ranged from 5 feet 6 inches to 6 feet 1 1/2 inches, their ages from 23 to 34, and their weights from 105 to 165 pounds. The eyewitnesses to the shooting described one assailant as heavy set, with a full beard, and the other man (Johnson) as slimmer and of medium height. Before the lineup, the four eyewitnesses were told that the police had two suspects in custody but were not told who these persons were. All four eyewitnesses separately identified Walker in the lineup.

Defendant argues that he was denied due process when the court refused to suppress evidence of his out-of-court identification and his in-court identification by the four eyewitnesses to the shooting. Defendant suggests that the lineup was unnecessarily suggestive and conducive to an irreparable mistaken identification because the witnesses knew the suspects were in the lineup, only two persons in the lineup had beards, and the only other person with a full beard was taller than the defendant. See Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.

The fact that the witnesses knew the suspects were in the lineup is not suggestive per se but is merely stating the obvious (People v. Madden (1977), 52 Ill. App.3d 951, 368 N.E.2d 384), and not all of the participants in the lineup need match the description given by the victim. (People v. Harrison (1978), 57 Ill. App.3d 9, 372 N.E.2d 915; People v. Miller (1977), 55 Ill. App.3d 421, 370 N.E.2d 1155; People v. Wyatt (1974), 23 Ill. App.3d 587, 319 N.E.2d 575.) In Harrison the defendant was the only tall person in the lineup; in Miller the defendant was the only one with light hair; and in Wyatt the defendant was the only tall suspect with a gold tooth. In all of the lineups in these cases, the defendant was the only suspect in the lineup with a distinguishing characteristic as described by the victim, but under the circumstances no suggestiveness was found to vitiate the witnesses' identification. The lineup here is even less subject to criticism, since the lineup contained six persons with varying degrees of facial hair. Clearly, such a lineup cannot be said to be unnecessarily suggestive to require the exclusion of the out-of-court identifications.

Even assuming that the lineup was suggestive, an out-of-court identification is still admissible so long as it is not likely to lead to an irreparable mistaken identification. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243.) In considering whether a suggestive lineup is likely to lead to an irreparable mistaken identification, the court must consider the opportunity of the witness to view the crime, the witness' degree of attention, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. (Manson.) The four eyewitnesses viewed the shooting of the victims at the rest stop for several minutes at very close range. They all testified that there were lights from passing cars and the illumination from the moon, and they had a good opportunity to view the assailants. They had also seen the defendants earlier when they pulled into the rest stop asking for directions to Chicago. Finally, all the witnesses unequivocally identified Walker as the murderer at the lineup which was held the day of the offense. Under these circumstances, we hold that the lineup was neither unnecessarily suggestive nor likely to lead to an irreparable mistaken identification. The trial court correctly denied Walker's motion to suppress the identification testimony.

• 3 Walker also argues that the State failed to prove his guilt beyond a reasonable doubt. We disagree. Defendant was identified by four eyewitnesses to the shooting both in court and out of court, and each witness described in detail the acts of the robbery and the shooting of Jackson and Stewart. In addition to this direct testimony, the State introduced evidence that when the defendant was arrested he possessed a round of .357 ammunition of a type which could have fired from one of the handguns found north of the rest stop, his clothing had blood on it which was consistent with that of the victim, and evidence was also introduced that a sawed-off shotgun, handgun, and other ammunition were found a short distance from the rest stop along the interstate. The testimony of a single credible eyewitness is sufficient to establish guilt beyond a reasonable doubt, and a reviewing court will not reverse a conviction unless the evidence is so unsatisfactory that a reasonable doubt of defendant's guilt remains. (People v. Clarke (1971), 50 Ill.2d 104, 277 N.E.2d 866; People v. Williams (1982), 93 Ill.2d 309, 444 N.E.2d ...

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