Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Richard J. Petrarca, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1986.
Defendants, James Curtis and Andrew Ryder, were convicted in a bench trial in the circuit court of Cook County of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2). The appellate court reversed the convictions and remanded for a new trial. (132 Ill. App.3d 241.) We allowed the State's petition for leave to appeal (94 Ill.2d R. 315).
On July 18, 1979, two men entered a liquor store on the south side of Chicago shortly before closing time. After pretending to inspect the merchandise, they announced a stickup. Four store employees, manager Thomas Buckle, cashier Rosalind Harris, stock man Greg Webb, and part-time security guard Fred Kinnie, were present at the time. One robber put a gun in Kinnie's back, then removed Kinnie's gun from its holster, unloaded it, threw the shells over a rack, and returned the gun to the holster. He continued to stand near Kinnie throughout the incident. The second robber ordered the other three employees to the back of the store. He told Harris and Webb to face the back door and then forced Buckle to lead him through the store to an office desk containing money, the safe, and the cash registers. After taking money from the desk and the registers (the safe could not be opened), that robber placed Buckle, Harris, and Webb in a storage room, and his partner did the same with Kinnie. With orders to the employees not to emerge for at least 15 minutes, the offenders fled. The incident had lasted somewhere between 15 and 30 minutes.
Some 19 months later, in February 1981, Richard Julien, an inspector with the internal affairs division of the Chicago fire department, learned that defendant Ryder, a fire department captain also with the internal affairs division, might have been involved in the liquor store robbery. This intelligence came from another fire department investigator who was a friend of the liquor store security guard, Fred Kinnie; Kinnie was also employed by the fire department at the time. Julien presented a photographic array to store manager Buckle which included Ryder's picture. After Buckle made a tentative identification of Ryder, Julien brought the allegations to the attention of the police department.
Police officers subsequently showed a photo spread including defendant Ryder to witnesses Buckle and Harris. Both witnesses made tentative identifications of Ryder. The witnesses were also shown a spread which included a picture of defendant Curtis. Although the record does not disclose why suspicion had focused on Curtis, it is likely that the allegations against him originated with Kinnie. With respect to Curtis the evidence is in conflict, but it appears that any identification of Curtis at that point was at best tentative.
A week later, on February 17, 1981, Kinnie made a statement to police officers and an assistant State's Attorney naming the defendants as the two robbers and implicating himself as an "inside man" in the robbery. Later the same day, store manager Buckle swore out complaints against Curtis and Ryder; a circuit judge found there was probable cause for filing the complaints and issued warrants for their arrest. Within several hours of being arrested, each defendant stood in two lineups, one viewed by Buckle and the other by liquor store employee Greg Webb. Neither defendant was represented by counsel at the lineups. Buckle identified both defendants in the lineups. The record is not clear on whether Webb made any identification, but he was never called to testify. Several days later Harris was shown photographs of the defendants' lineups and identified both Curtis and Ryder.
Trial of the case occurred approximately 2 1/2 years after the arrests. Prior to trial, the circuit judge suppressed Buckle's lineup identification of Ryder on the ground that Ryder's sixth amendment right to counsel at the lineup had been violated; however, Buckle's lineup identification of defendant Curtis was not suppressed because the judge found that Curtis had waived his sixth amendment right.
At trial the evidence against the defendants consisted of the testimony of Buckle, Harris, and Kinnie. The State's case included in-court identifications by Buckle and Harris of each defendant, Buckle's identification of Curtis at the lineup, and Harris' identification of both defendants from lineup photographs. In addition, both witnesses testified to making tentative identifications from the prelineup photo arrays. Kinnie repeated his story that he had collaborated in the robbery with the two defendants.
The appellate court agreed with the trial court that the defendants' sixth amendment right to counsel attached upon the filing of criminal complaints and that the defendants were therefore entitled to have attorneys present at the lineups. The appellate court held, however, that the trial judge's finding that Curtis had waived the right was against the manifest weight of the evidence and that Curtis, like Ryder, was entitled to suppression of Buckle's lineup identification. Moreover, the appellate court believed that United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, and Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951, mandated the suppression not only of Buckle's lineup identification of the defendants, but also the in-court identifications by both witnesses and all other identification evidence. Since the only remaining evidence tying the defendants to the robbery was the testimony of Kinnie, whose credibility was subject to impeachment, the appellate court concluded that the error in admitting the identifications was not harmless and that a new trial was required.
We need not pass upon the propriety of the appellate court's views as to the necessity of counsel at the lineups or Curtis' alleged waiver of the right. Even assuming that the appellate court's resolution of these questions was correct, its application of the Wade-Gilbert exclusionary rule was erroneous. Under a correct application of the principles articulated in those cases, any error resulting from the uncounseled lineups was harmless beyond a reasonable doubt.
A lineup which is held after the initiation of "adversary judicial criminal proceedings" without the presence of counsel for the accused is unconstitutional. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1882.) Once it has been determined (or as here assumed) that a lineup violates the sixth amendment right to counsel, any evidence adduced by the prosecution that a witness identified the defendant at the lineup is subject to a per se rule of exclusion. (Gilbert v. California (1967), 388 U.S. 263, 273, 18 L.Ed.2d 1178, 1186, 87 S.Ct. 1951, 1957; Moore v. Illinois (1977), 434 U.S. 220, 231, 54 L.Ed.2d 424, 436, 98 S.Ct. 458, 466.) However, an in-court identification may be permitted even when it follows an uncounseled lineup if the State can establish by "clear and convincing evidence that the in-court identification [was] based upon observations of the suspect other than the lineup identification." (United States v. Wade (1967), 388 U.S. 218, 240, 18 L.Ed.2d 1149, 1164, 87 S.Ct. 1926, 1939; see also People v. Fox (1971), 48 Ill.2d 239, 245-46; Frisco v. Blackburn (5th Cir. 1986), 782 F.2d 1353; United States v. Anderson (7th Cir. 1983), 714 F.2d 684.) If either a lineup or an in-court identification is improperly admitted, a new trial is required unless the State can prove that the error was harmless. Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951.
In this case, the Wade-Gilbert principles must be applied to three types of evidence admitted at trial: Buckle's testimony that he identified Curtis at the lineup, Harris' testimony that she identified both defendants from pictures of the lineups, and the in-court identifications of both defendants made by Buckle and Harris.
I. THE LINEUP IDENTIFICATION TESTIMONY
Because the trial judge granted Ryder's motion to suppress, there was no evidence presented that Buckle had picked him out of a lineup. Ryder concedes that the appellate court's contrary view of the record is mistaken. Buckle was permitted to testify, however, that he told the police at Curtis' lineup that Curtis resembled the man involved in the robbery. Assuming that the uncounseled lineup violated the defendant's sixth amendment right, Gilbert requires that this testimony by Buckle be excluded. (Gilbert v. California (1967), 388 U.S. 263, 273, 18 L.Ed.2d ...