Appeal from the Circuit Court of Cook County; the Hon. Michael
C. Close, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a bench trial defendant, James Jones, was found guilty of armed robbery, armed violence, home invasion and residential burglary. Judgment was entered on the armed-robbery, home-invasion and residential-burglary counts, and defendant was sentenced to serve six years in the Illinois Department of Corrections. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt, that the trial court erred in denying his motion to suppress the identification testimony, and that the court erred in convicting him of both home invasion and residential burglary.
Prior to trial, defendant moved to suppress the identification testimony of Cyrus Carey, the only witness who was able to identify him. The parties agreed to conduct the hearing on the motion simultaneously with the trial.
Cyrus Carey (Cyrus) testified that on March 1, 1984, he was working as a tailor in his third-floor apartment at 7466 North Damen in Chicago. His brother, Garth Carey, and a friend, Leon Smith, were also present. At approximately 12:45 p.m. on March 1, 1984, someone knocked at the apartment door. When Cyrus opened the door, he saw two men pointing guns at him. Both men told Cyrus to "freeze." The shorter of the two men was holding a revolver and the taller man was holding a shotgun. In court, Cyrus identified defendant as the man with the revolver. He testified that he recognized defendant on March 1, 1984, because he had seen him in the hallway of his apartment building two weeks earlier. Although Cyrus stated that he had told the police that he had seen defendant on a prior occasion, the parties stipulated that he had not done so.
Cyrus tried to close the door but the two men forced their way into his apartment. Defendant then pulled a mask over his face. In court, Cyrus described the mask as a dark, navy blue stocking. He stated that People's exhibit No. 1, a black nylon stocking with a knot and a hole, looked like the mask which defendant was wearing. The parties stipulated that the police recovered People's exhibit No. 1 from defendant's pocket following his arrest on March 9, 1984. At the preliminary hearing, Cyrus testified that he had told the police that the stocking was blue. At trial, he described the color of People's exhibit No. 1 as black or navy blue.
Cyrus testified further that the two armed men ordered him to lie on the floor and asked him whether there were any other persons in the apartment. Cyrus' brother, Garth Carey, was lying on a bed in the living room and his friend, Leon Smith, was standing in another room. The men made Garth Carey and Leon Smith lie down on the floor next to Cyrus Carey and covered all three men with some sewing material. Cyrus testified that he observed the two offenders for approximately two minutes before he was covered. The men asked Cyrus for money but he told them that he did not have any. They then took his watch and wallet and broke into his sister's locked bedroom where they took her gold jewelry and approximately $20 in cash. The Careys' sister was not at home at the time of the robbery.
After Cyrus had been lying on the floor for about 12 minutes, he heard someone knocking at the door and calling his nickname, "Tailor." The robbers opened the front door and told Errol Nugent to enter. Nugent testified that the taller man was carrying a shotgun and was wearing blue-jean coveralls; the shorter man was holding a .38-caliber handgun and was wearing a mask. When the man with the revolver ordered Nugent to come into the apartment, he jumped over the railing in the third-floor hallway, landed on the second floor and fled downstairs and out of the building. Nugent identified People's exhibit No. 1 as the mask which the man with the handgun was wearing. On cross-examination, Nugent described the mask as a blue stocking mask. Cyrus Carey heard Nugent run downstairs. The robbers then ran out of the back of the apartment.
Garth Carey's testimony corroborated his brother's testimony. Garth, however, could not identify the man with the handgun because he was wearing a mask which "could have been" People's exhibit No. 1. Garth described the mask as a blue ski mask. The parties stipulated that two investigators interviewed Cyrus Carey, Garth Carey, Leon Smith and Errol Nugent within one hour of the robbery and that their report of their interviews with the witnesses contained no references to a "black stocking."
On cross-examination, defense counsel questioned Cyrus Carey about a possible third offender:
"QUESTION: Sir, did you see anybody in the company of these two men with guns? Was there anybody else with them or behind them?
ANSWER: No, I don't remember.
QUESTION: There wasn't a woman with them?
ANSWER: No, I'm not sure about the woman.
QUESTION: Might there have been a woman with them?
ANSWER: Could, but I'm not sure.
QUESTION: Did you tell the police there was a woman with these two guys?
QUESTION: But there was a chance there was?
ANSWER: Maybe, I don't know. I didn't see a woman.
QUESTION: Did the woman enter the apartment?
QUESTION: At least you didn't hear her come into the apartment, is that right?
QUESTION: Did you tell the police there might have been a woman with these guys?
QUESTION: Did you tell the police what the woman looked like?
ANSWER: I'm not sure. That was so long ago. I'm not sure if a woman was there. I saw two guns, you know, pointing at me.
QUESTION: That's all you saw, two guns?
ANSWER: I couldn't see after the two guns was [sic] pointing at me if there was a woman. I was frightened, scared, you know, at the time, if there, there might, could have been a woman there."
On March 3, 1984, Cyrus Carey examined several books of photographs and identified defendant's photograph. On March 4, 1984, Carey signed a complaint for preliminary examination charging defendant with armed robbery. Based on that complaint, a warrant was issued for defendant's arrest. Defendant was apprehended on March 9, 1984. On the following day, Carey identified defendant in a lineup.
At the conclusion of the State's case, the court considered defendant's motion to suppress Cyrus Carey's identification testimony. The State waived a formal swearing of defendant to the allegations in the motion. Defense counsel asked that the two photographs of the March 10, 1984, lineup be attached to the motion to suppress and then rested on the motion which the court denied.
Defendant testified in his own behalf and denied that he had robbed Cyrus Carey on March 1, 1984. Although defendant could not recall at trial whether he was working as a general contractor on the date of the offenses, he admitted that he had told the police that he was working. On cross-examination, defendant explained that he had told the police that on March 1, 1984, he was working at the home of his uncle, Joe Davis, at 2037 Darrow in Evanston, and at the home of his aunt, Julia Smith, at 2112 Darrow in Evanston. One job ended before noon and the other one lasted until 4:30 in the afternoon. Defendant admitted that after the police telephoned his relatives, who apparently failed to corroborate his alibi, he told the police that he could not remember where he was on March 1, 1984. The parties stipulated that if Julia Smith were called to testify, she would state that defendant worked for her sometime during the month of February 1984. On cross-examination, defendant also stated that at the time of his arrest, he was wearing People's exhibit No. 1 on his hair because he had just had his hair braided. He acknowledged that the stocking had a hole in it.
Defendant was found guilty of armed robbery, armed violence, home invasion and residential burglary. Judgment was entered on the armed-robbery, home-invasion and residential-burglary counts, and defendant was sentenced to serve six years in the Illinois Department of Corrections. This appeal follows.
Defendant initially contends that he was not proved guilty beyond a reasonable doubt. Defendant submits that Cyrus Carey's identification testimony was not credible because he did not know whether a woman was present with the two men who robbed him, he was frightened and scared when he saw the two guns pointed at him, he had only a brief opportunity to observe the man with the revolver before he pulled a mask over his face, he took several minutes to identify defendant at the lineup and he was impeached when he testified that he had told the police that he had seen the man with the revolver on an earlier occasion. Defendant also discounts the significance of the black nylon stocking which the police recovered from defendant's pocket upon his arrest because none of the State's witnesses could positively identify the stocking, and the trial judge, in denying defendant's motion for a directed finding, commented that he did not know whether the exhibit was the mask worn by the perpetrator and expressed some doubt as to whether the recovered stocking was the mask used in the robbery.
In finding defendant guilty, the trial court specifically found that Cyrus Carey testified honestly and that he had an adequate opportunity to observe defendant when he was unmasked.
• 1 Upon our review of the record, we cannot say that these findings were in error. Carey observed defendant at the entrance to his apartment long enough to recognize him as a man whom he had seen less than two weeks before in the same hallway. He stated also that when he opened the door defendant's face was uncovered and that defendant did not pull the mask over his face until after he entered the room. Carey also stated that he was able to view the men for "approximately two minutes." It is not required that the time for observation be of a prolonged nature (People v. Nurse (1985), 131 Ill. App.3d 590, 596, 475 N.E.2d 1000), and we believe that in the instant case Carey had an adequate opportunity to view defendant (People v. Brown (1977), 50 Ill. App.3d 348, 365 N.E.2d 907; People v. Green (1976), 42 Ill. App.3d 978, 356 N.E.2d 947; People v. Norfleet (1973), 15 Ill. App.3d 567, 304 N.E.2d 672; People v. Bell (1975), 29 Ill. App.3d 1032, 331 N.E.2d 258). Carey's understandable fear when he saw two guns pointed at him does not necessarily render his identification testimony unworthy of belief. Carey's identification of defendant was strong and corroborated by his identification of defendant's photograph on March 3, 1984.
We have carefully reviewed the cross-examination of Carey in which defense counsel raised the issue of a possible third offender, and we are unable to conclude that Carey's testimony on this matter casts doubt on his identification of defendant. Carey testified that he did not see a woman with the two men, that no woman entered the apartment with them, that he never told the police that there was a woman with the two men, and that he did not remember whether there was a third person with the other two offenders.
• 2 Our supreme court has repeatedly held that a positive identification by a single witness with ample opportunity to observe is sufficient to sustain a conviction. (People v. Williams (1975), 60 Ill.2d 1, 12, 322 N.E.2d 819; People v. Clarke (1971), 50 Ill.2d 104, 110, 277 N.E.2d 866.) Upon our review of the record, we are satisfied that Cyrus Carey's in-court identification of defendant was sufficient to establish defendant's guilt beyond a reasonable doubt. In light of Carey's testimony, the trial judge, sitting as the trier of fact, was not required to accept defendant's denial of his participation in these offenses.
Defendant next contends that the trial court erred in denying his motion to suppress the identification testimony. Specifically, defendant argues that the lineup-identification testimony should have been suppressed on the ground that defense counsel was not present at the lineup. While the State responds that this argument has been waived by defendant's alleged failure to support the motion with an affidavit, we note that the State waived formal swearing of defendant to the allegations in his written motion which raised the same issue defendant advances on appeal. See People v. McAdrian (1972), 52 Ill.2d 250, 287 N.E.2d 688.
• 3, 4 The right to counsel guaranteed by the sixth amendment attaches at the time that "adversary judicial criminal proceedings" are initiated against a person by way of formal charge, preliminary hearing, indictment, information or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 688-89, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1881-82; People v. Burbank (1972), 53 Ill.2d 261, 272, 291 N.E.2d 161.) In the case at bar, the preliminary hearing, the filing of the information and the arraignment all occurred after the date on which defendant was identified in the lineup. Defendant, however, maintains that the lineup identification should have been suppressed because the issuance of an arrest warrant following the filing of a criminal complaint and the defendant's subsequent arrest pursuant thereto constituted a "formal charge" and thereby activated his constitutional right to have counsel present during the lineup.
To date, neither the United States Supreme Court (see Edwards v. Arizona (1981), 451 U.S. 477, 480 n. 7, 68 L.Ed.2d 378, 383 n. 7, 101 S.Ct. 1880, 1883 n. 7), nor the Illinois Supreme Court (see People v. Owens (1984), 102 Ill.2d 88, 101, 464 N.E.2d 261), has decided whether the sixth amendment right to counsel automatically attaches upon the filing of a criminal complaint. We recognize that there is a sharp split of authority in the appellate court opinions on this question. (Compare People v. Dove (1986), 147 Ill. App.3d 659, 662-64; People v. Fleming (1985), 134 Ill. App.3d 562, 566-69, 480 N.E.2d 1221; People v. Curtis (1985), 132 Ill. App.3d 241, 245-48, 476 N.E.2d 1162; *fn1 People v. Jumper (1983), 113 Ill. App.3d 346, 349, 447 N.E.2d 531; People v. Faulkner (1980), 86 Ill. App.3d 136, 138-39, 407 N.E.2d 126; People v. Giovanetti (1979), 70 Ill. App.3d 275, 282, 387 N.E.2d 1071; People v. Marshall (1977), 47 Ill. App.3d 784, 786, 365 N.E.2d 367; and People v. Hinton (1974), 23 Ill. App.3d 369, 371-72, 319 N.E.2d 313 (sixth amendment right to counsel automatically attaches upon the filing of a criminal complaint), with People v. Racanelli (1985), 132 Ill. App.3d 124, 130-31, 476 N.E.2d 1179; People v. Boswell (1985), 132 Ill. App.3d 52, 57-60, 476 N.E.2d 1154; People v. Mitchell (1983), 116 Ill. App.3d 44, 47, 451 N.E.2d 934, modified on appeal (1984), 105 Ill.2d 1, 473 N.E.2d 1270; and People v. Dockery (1966), 72 Ill. App.2d 345, 355, 219 N.E.2d 687 (right to counsel does not attach upon the filing of a criminal complaint and the issuance of an arrest warrant absent proof of significant prosecutorial involvement in procuring the arrest warrant).) However, we need not reach the question as to whether adversarial proceedings commence upon the filing of a criminal complaint because we believe that in this case they had commenced prior to the lineup.
It is clear that the initiation of judicial criminal proceedings is determined by looking to the point at which the government has committed itself to prosecute and the adverse positions of the parties have solidified. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L.Ed.2d 411, 417, 92 S.Ct. 1877, 1881-82.) The record here discloses that the offenses occurred on March 1, 1984, and that Cyrus Carey filed the criminal complaint on March 4, and it is indicated that Carey was assisted by someone in the preparation of the complaint as it was typewritten on a printed court form and contains the statutory designation of armed robbery. While the record does not disclose who may have assisted Carey, it does appear that the State's Attorney was involved in this matter before the lineup. Carey testified that the stocking used as a mask in the crime was shown to him by the police before the lineup when "I was talking to the State's Attorney." There being nothing in the record negating the fact that the State's Attorney was involved at that time and since the stocking bore no relation of any kind to the lineup, it follows that it was shown to Carey in the preparation of the prosecutor's case. Under these circumstances we believe that adversarial proceedings had commenced at that time and, because no counsel was present at the lineup, the lineup was held in violation of the sixth amendment. We therefore conclude that the lineup identification should have been suppressed.
• 5-7 We reject, however, the contention of defendant that the in-court identification by Carey also should have been suppressed because it had no basis independent of the counselless lineup identification. In United States v. Wade (1967), 388 U.S. 218, 239-42, 18 L.Ed.2d 1149, 1164-66, 87 S.Ct. 1926, 1939-40, and Gilbert v. California (1967), 388 U.S. 263, 272, 18 L.Ed.2d 1178, 1186, 87 S.Ct. 1951, 1956, the Supreme Court held that an in-court identification may be admitted if the State establishes by clear and convincing evidence that the identification had an independent basis. To decide whether Carey's in-court identification had an origin independent of the uncounseled lineup, several factors must be considered, including "the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to the lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." (United States v. Wade (1967), 388 U.S. 218, 241, 18 L.Ed.2d 1149, 1165, 87 S.Ct. 1926, 1940.) Notwithstanding the dissent's repeated assertions to the contrary (148 Ill. App.3d at 146-47, 149), the independent-basis determination can be made by a reviewing court where the record permits an informed judgment, and the court may find a sufficient alternative foundation for the in-court identification even where a small number of these factors are present. (People v. Curtis (1986), 113 Ill.2d 136, 147.) In our judgment, the record in this case allows an informed judgment, and evaluation of the Wade factors demonstrates convincingly that Carey's in-court identification was based on his observations during the crimes, not on seeing defendant at the uncounseled lineup. *fn2
Cyrus Carey viewed defendant at the time of the robbery for approximately two minutes before defendant pulled the mask over his face. In addition, Carey recalled that he had seen defendant two weeks earlier in the hallway of his apartment building. Carey selected defendant's photograph two days after the crimes which was one week before he identified him in the lineup. Moreover, an examination of the record flatly contradicts the assertions made in the dissent that "there was no evidence of what description Carey gave of the robber to the police" and that no "evidence of the defendant's description [was] presented at the trial." Carey testified on cross-examination that he had described the two offenders to the police and, on further cross-examination, he specifically mentioned defendant's age and relative height. Although defense counsel did not explore the details of Carey's physical description of defendant, it is reasonable to assume that had there been any material discrepancies between that description and defendant's actual appearance, they would have been brought out at trial to impeach Carey's credibility and his in-court identification. There was no evidence in the record that Carey had identified anyone other than defendant as the shorter of the two offenders or that he had failed to identify defendant on any prior occasion. Again, it is reasonable to assume that any misidentification or nonidentification would have been brought to the attention of the trier of fact.
Upon our review of the record we are satisfied that there was an independent basis for Cyrus Carey's in-court identification of the defendant. The trial judge not only expressed his belief that Carey had "testified honestly" but also stated that he "had sufficient opportunity to observe the individual who, in fact, stuck him up." The judge concluded that "on the basis of the evidence reviewed here, the encounter between defendant when he was unmasked and the State's principal witness, was more than sufficient to support the in-court identification of the defendant." We agree with this assessment. Moreover, we are unable to conclude that the findings of guilty could have been influenced by the erroneously admitted lineup-identification testimony. In his entire statement the trial judge mentions the lineup identification only once and then only in reference to Carey's recollection of the crime "when he goes through these photographs and later at the lineup and today at trial." Contrary to the assumption of the dissent, nowhere does it appear that the trial judge placed any particular reliance on the lineup identification and, in fact, from a reading of the record it appears clear that the lineup identification was not a factor in his decision. We agree with the trial court that Carey had an adequate opportunity to observe defendant's face during the occurrence, and in view of his positive in-court identification we find no error in the court's refusal to suppress his identification testimony. See United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; People v. Strater (1979), 72 Ill. App.3d 486, 390 N.E.2d 979.
• 8 Defendant finally contends that the court erred in convicting him of both home invasion and residential burglary. Defendant argues that since both convictions were based upon a single entry, the conviction for residential burglary must be vacated under the one-act, one-crime rule of People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838.
In King, the supreme court held:
"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. `Act,' when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." (66 Ill.2d 551, 566, 363 N.E.2d 838.)
Thus, if one of two offenses is not a lesser included offense of the other, both convictions may stand unless each is "carved from the same physical act." Defendant does not dispute that neither residential burglary nor home invasion is a lesser included offense of the other. (See People v. Robinson (1984), 125 Ill. App.3d 1077, 1079-80, 467 N.E.2d 291, and People v. Hawkins (1984), 125 Ill. App.3d 520, 521-22, 466 N.E.2d 299, and the cases cited therein.) Defendant, however, argues that both convictions were based on the same physical act of entry. We disagree.
In People v. Snow (1984), 124 Ill. App.3d 955, 464 N.E.2d 1262, the court held that although home invasion and residential burglary may share the physical act of entry, they are not based upon the same physical act. The court explained that while residential burglary is complete once an unlawful entry is made with the requisite intent, home invasion is not complete until, after an unlawful entry, defendant either uses force or threatens use of force upon a person in the home while armed with a dangerous weapon, or intentionally causes any injury to a person in the home. The court concluded that the offenses of residential burglary and home invasion are not based on the same physical act as the common element of unlawful entry does not complete the offense of home invasion. (124 Ill. App.3d 955, 963, 464 N.E.2d 1262.) See also People v. Lobdell (1983), 121 Ill. App.3d 248, 459 N.E.2d 260.
• 9 In support of his argument that residential burglary and home invasion are based on the same physical act, defendant relies principally on People v. Jones (1982), 108 Ill. App.3d 880, 439 N.E.2d 1011, and People v. Green (1980), 83 Ill. App.3d 982, 404 N.E.2d 930. In Jones, where the State confessed error, the court held that as the same physical act of entry constituted the basis for both burglary and home invasion, vacation of the burglary conviction was required. (People v. Jones (1982), 108 Ill. App.3d 880, 890, 439 N.E.2d 1011.) We note, however, that in People v. Rathgeb (1983), 113 Ill. App.3d 943, 447 N.E.2d 1351, the appellate court overruled its earlier decision in People v. Jones, sub silentio, and held that convictions for both burglary and home invasion were proper, even though there was only one physical act of entry. (113 Ill. App.3d 943, 949, 447 N.E.2d 1351.) In People v. Green (1980), 83 Ill. App.3d 982, 404 N.E.2d 930, the defendant had been convicted of armed violence based on burglary and home invasion. On appeal, the court vacated the armed-violence conviction because of a fatal variance between the evidence presented at trial and the indictment. (83 Ill. App.3d 982, 986, 404 N.E.2d 930.) In dicta, the court stated that even if it considered the variance in the indictment to be nonfatal, defendant's convictions for armed violence based on burglary and home invasion could not both stand because the convictions were based on the identical act of entry. (83 Ill. App.3d 982, 986, 404 N.E.2d 930.) However, the same district of the appellate court that decided Green repudiated this analysis in People v. Lobdell (1983), 121 Ill. App.3d 248, 249-51, 459 N.E.2d 260. In our judgment, defendant was properly convicted and sentenced for both residential burglary and home invasion.
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill.2d 166, 374 N.E.2d 194, we grant the State's request that defendant be assessed $50 as costs for defending this appeal, and incorporate it in our judgment.
JUSTICE PINCHAM, dissenting:
I dissent. In my judgment the trial court erred in overruling the defendant's motion to suppress and in admitting into evidence Cyrus Carey's testimony of the uncounseled lineup identification of the defendant as one of the robbers. Carey's testimony of the defendant's uncounseled lineup identification should have been suppressed as evidence against the defendant because it occurred after adversarial judicial proceedings had been initiated against the defendant and thus violated his right to counsel under the sixth amendment of the United States Constitution and article I, section 8, of the Illinois Constitution. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877; People v. Racanelli (1985), 132 Ill. App.3d 124, 155-65, 476 N.E.2d 1179 (Pincham, J., dissenting).) The trial court's error in overruling the defendant's motion to suppress Carey's lineup-identification testimony demands reversal and remandment for a new trial. It is inappropriate for this court to affirm the defendant's judgment of conviction and thereby validate the trial court's error.
I do not agree with the majority's holding that:
(1) "[W]e are unable to conclude that the findings of guilty could have been influenced by the erroneously admitted lineup-identification testimony."
(2) "[N]owhere does it appear that the trial judge placed any particular reliance on the lineup identification," and
(3) "[F]rom a reading of the record it appears clear that the lineup identification was not a factor in his decision."
The State did not contend in the trial court that the trial court was uninfluenced by Carey's testimony of the defendant's uncounseled lineup identification in determining the defendant's guilt. This was not an issue ...