APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
518 N.E.2d 154, 164 Ill. App. 3d 519, 115 Ill. Dec. 629 1987.IL.1005
Appeal from the Circuit Court of Cook County; the Hon. Sophia Hall, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. WHITE and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
After a bench trial, the defendant, Willie Slim, was found guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)) and was sentenced to six years' imprisonment. His sole contention on appeal is that the victim's single identification testimony of him as the robber was wrought with inconsistencies, was not clear and convincing and failed to establish beyond a reasonable doubt that the defendant was the robber. The defendant insists that his conviction should therefore be reversed.
"[Identification] evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent -- not due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of Justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that '[the] influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of Justice than any other single factor -- perhaps it is responsible for more such errors than all other factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.
Moreover, '[it] is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.'" (Emphasis added.)
The adequacy of the victim's opportunity to identify the robber, the amount of time the victim observed the robber, the proximity of the victim to the robber, the victim's anxiety, fear and excitement, the extent of the victim's attention to the robber's features, the lighting conditions, the thoroughness and accuracy of the victim's description of the robber, the length of time between the robbery and the victim's subsequent identification of the robber are factors which are considered in determining whether a victim has correctly identified the robber beyond a reasonable doubt. (People v. Brown (1982), 110 Ill. App. 3d 1125, 1128, 443 N.E.2d 665; People v. Baker (1979), 78 Ill. App. 3d 411, 416, 396 N.E.2d 1174.) The victim's failure to initially observe a particularly distinctive or unique physical characteristic of the person the victim subsequently identifies as the robber is also a factor in determining the authenticity of the victim's identification. Variances between the victim's description of the offender and the description of the defendant may raise a reasonable doubt of the identification and the defendant's guilt. (People v. Byas (1983), 117 Ill. App. 3d 979, 986, 453 N.E.2d 1141.) Moreover, the trial court's finding of guilt must be reversed on appeal where the evidence is to improbable that it raises a reasonable doubt of the defendant's guilt. (People v. Baker (1979), 78 Ill. App. 3d 411, 417, 396 N.E.2d 1174.) A conviction cannot rest upon an identification which is doubtful, vague or uncertain or where there are significant discrepancies between the victim's description of the assailant and the description of the defendant. (People v. Marshall (1966), 74 Ill. App. 2d 483, 485, 221 N.E.2d 133.) Application of the foregoing principles to the case at bar compels reversal.
The robbery victim, Porter Sledge, testified that he was a part-time Cook County deputy sheriff. On August 3, 1985, at approximately 1:45 a.m., he parked his 1983 Cadillac automobile at 5616 South Indiana Avenue in Chicago. As he walked from his car down the street, a man whom he had never seen before approached him. When the man was one or two feet from him, the man stuck a gun in his face and took his money, wallet and car keys. The robber backed away to Sledge's car, unlocked the door, entered the car and drove away. Sledge immediately reported the robbery to the police and gave the officers a description of the robber.
On August 13, 1985, 10 days after the robbery, the defendant and several other individuals were arrested in Milwaukee, Wisconsin, while in Sledge's car, which had Wisconsin license plates affixed to it. The defendant was a passenger in the car. The identity of the driver of the car and the other passengers was not established.
On the following day, Sledge went to Milwaukee, where he viewed a six-man lineup and identified the defendant as the person who had robbed him. Although a picture was taken of the lineup and was received in evidence as State's exhibit No. 1, the lineup picture however is not contained in the record on appeal. Moreover, the evidence does not reveal the identity or description of the five other lineup participants. Nor does the record disclose whether any of the other men in the lineup were any of the men who were arrested in Sledge's car with the defendant.
Sledge further testified at trial that he initially described to the police the robber's age as 28 years. The uncontradicted trial evidence of the defendant's father, Rotation Slim, a defense witness, established however that the defendant was born on September 13, 1964, and was 20 years of age when the robbery was committed on August 3, 1985. Thus, Sledge was mistaken by eight years on the robber's and the defendant's age.
Sledge also testified at trial that he initially reported to the police that the robber weighed 135 pounds. Yet the uncontradicted trial testimony of the defendant's father established that the defendant weighed 165 to 170 pounds. Thus, Sledge was mistaken by 30 to 35 pounds on the robber's and the defendant's weight.
Sledge further testified that he was 5 feet 9 inches tall and that he initially described the robber to the police as being 5 feet 3 inches tall. The uncontradicted testimony of the defendant's father, established however that the defendant was 5 feet 9 inches tall -- the same height as Sledge. Thus, Sledge was mistaken by six inches on the robber's and the defendant's height. Moreover, a 5-foot 3-inch, 28-year-old, 135-pound man, described by Sledge, would be an unusually small and short man -- a midget in size and height -- significantly different from the defendant's normal height and weight.
Sledge testified that he did not remember if he initially described to the officers the robber's complexion as dark. The trial evidence established however that the defendant was dark complexioned.
There was a substantial variance between the descriptions of each of the physical characteristics of the robber which Sledge gave to the police officers and the actual descriptions of such physical characteristics of the defendant, i.e., height, weight, age and complexion, which, evidentially, were the only physical characteristics of the robber that Sledge described. In fact, the sole features of the defendant that matched the victim's description of the robber were that the defendant was a black male.
In reversing the defendant's conviction for a sale of narcotics to an undercover police officer because the identity of the defendant was not proved beyond a reasonable doubt, the court pointed out in People v. Barney (1965), 60 Ill. App. 3d 79, 81, 208 N.E.2d 378, that the differences between the officer's description of the offender who sold him the drugs and the description of the defendant were "an increase of nine years in age, of five inches in height, of fifty pounds in weight and a change in posture from stooping to erect." The variances in the case at bar are practically identical.
After a bench trial the defendant was found guilty of rape and armed violence in People v. Byas (1983), 117 Ill. App. 3d 979, 985-86, 453 N.E.2d 1141. In reversing, the court stated:
"[The] complainant's description of her assailant substantially differs from the actual physical characteristics of the defendant. The complainant initially described her assailant as being six feet tall, 170 pounds and in his early twenties. The next day, during a police interview, the complainant revised her description of the attacker, stating that he was 5 feet 11 inches tall, weighed approximately 175 pounds, was approximately 23 years old, darkly complected and had a hairy chest. In fact, the defendant is 5 feet 7 inches tall, weighs 147 pounds and has no hair on his chest or stomach. The State calls these discrepancies 'minor.' These are not trivial variances, and the State's evidence offers no explanation for these differences. People v. Marshall (1966), 74 Ill. App. 2d 483, 221 N.E.2d 133. See also People v. Carroll (1970), 119 Ill. App. 2d 314, 256 N.E.2d 153 (substantial variance in height, weight and presence of beard); People v. Barney (1965), 60 Ill. App. 2d 79, 208 N.E.2d 378 (variances in height, weight and posture)."
Sledge testified that he did not notice anything unusual about the robber's lips. He testified:
"Q. Now, nothing unusual about his [the robber's] lips, is that correct? You didn't tell anything about his lips?
A. Not that I could see, I wasn't paying any attention to his lips."
The uncontradicted trial testimony of the defendant's father established however, that the defendant had unusually thick lips. Rotation ...