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09/04/87 the People of the State of v. Richard E. Smith

September 4, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICHARD E. SMITH, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

512 N.E.2d 1384, 160 Ill. App. 3d 89, 111 Ill. Dec. 747 1987.IL.1298

Appeal from the Circuit Court of Marion County; the Hon. Dennis L. Berkbigler, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. HARRISON and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Defendant, Richard E. Smith, was convicted by a jury of residential burglary and sentenced to eight years' imprisonment in the Department of Corrections by the circuit court of Marion County. Defendant appeals from his conviction.

In the early morning hours of July 8, 1985, Helen Telford, age 76, was awakened by her mother calling out to her. Mrs. Telford got up out of bed and saw two men standing in her house. She turned on the bedroom light and ordered them to leave. The two refused to go. One of the men began searching the bedroom for money; the other, defendant, stayed with Mrs. Telford. She entered the dining room, turned on the light and attempted to use the telephone to call the police. Even though the phone line had been cut, the second man came over to Mrs. Telford, grabbed the phone away from her and "slung it down." She proceeded to the kitchen and turned on another light. When she stepped into the hall and approached a hamper with a pair of shoes on it, defendant flung the shoes. Mrs. Telford slapped defendant in the face. He continued to follow her around the house telling her he wanted money until the other man called out, "I got it." The two men then fled through a back window.

A short time later the police arrived. Mrs. Telford described the man who followed her as being "kind of chunky-faced" with "light-colored, fuzzy hair." The other man was described as being "kind of tall and slim," and wearing a black shirt and headband. Mrs. Telford's mother was too distraught to describe either.

Two days later, Mrs. Telford, while in the Wamac City Hall paying a bill, was approached by Officer Robert Smith. He asked her if she would be willing to look at pictures of possible suspects. Mrs. Telford viewed six photographs or "mug shots" and identified defendant as the man who followed her around the house. Officer Smith told her defendant's name after she had selected his photo. The name matched that of an individual rumored in the community to be one of the men who broke into her house. Six months later, Mrs. Telford again identified defendant from another photo array. She accused Officer Smith at that time of trying to "mess [her] up."

At defendant's trial, Mrs. Telford identified defendant in court as being the man who followed her around the house. Patrick Thompson, defendant's former cell-mate, however, confessed to the crime with which defendant was charged. Thompson related to the jury essentially the same details of the burglary as those told by Mrs. Telford, but confused Mrs. Telford with her mother. Mrs. Telford testified on rebuttal she had never seen Thompson before. The jury chose to believe Mrs. Telford and found defendant guilty of residential burglary.

Defendant raises several points on appeal. He argues: (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied a fair trial because evidence implicating him in other crimes was improperly admitted; (3) he was denied a fair trial when the arresting police officer testified defendant remained silent after being given Miranda warnings; (4) he was denied a fair trial because the prosecutor gave his own unsworn testimony and misstated evidence presented at trial; (5) he was denied effective assistance of counsel; and finally (6) he is entitled to an additional two days' credit against his sentence. We take these issues in the order stated.

Defendant contends he was not proved guilty beyond a reasonable doubt because Mrs. Telford's identification of him was less than positive and another individual more closely matching her description of the burglar confessed to the crime. Specifically, defendant argues the photographic display was so unduly suggestive that even Mrs. Telford's in-court identification was tainted. This, in addition to Thompson's confession and the fact that Mrs. Telford was not wearing her glasses during the burglary, establishes in defendant's eyes that Mrs. Telford was mistaken in her identification of him. We disagree.

We first note defendant has waived the issue of the suggestive nature of the photo array because he failed to move to suppress the display, to object to its introduction at trial or to include the issue in his post-trial motion. (See, e.g., People v. Friesland (1985), 109 Ill. 2d 369, 374, 488 N.E.2d 261, 262; People v. Mitchell (1975), 34 Ill. App. 3d 311, 319, 340 N.E.2d 226, 232.) More importantly, however, the photo display was not unduly suggestive. It is true defendant was the only blonde, as well as the only shirtless, suspect in the photo lineup. He was also five years younger than any other suspect in the array, although most appeared to be fairly young. But similar, if not potentially more prejudicial, photo arrays have been found not to be unduly suggestive so as to taint a subsequent in-court identification or merit reversal. (See People v. Levine (1981), 99 Ill. App. 3d 141, 426 N.E.2d 215 (defendant's photo only one in color, only one wearing sunglasses); People v. Johnson (1976), 43 Ill. App. 3d 649, 357 N.E.2d 151 (defendant only subject in photo array without a shirt on); People v. Hart (1973), 10 Ill. App. 3d 857, 295 N.E.2d 63 (defendant's picture only one with date on it, in addition to being largest photo in array); People v. Hudson (1972), 7 Ill. App. 3d 333, 287 N.E.2d 297 (defendant's photo only one in color). See also People v. Harrell (1982), 104 Ill. App. 3d 138, 432 N.E.2d 1163 (seven of nine photos in array older with different edges and backgrounds, defendant longer hair than others, and defendant eight years older than other suspects in actual in-person lineup).) Complete exactitude of features is not required. (People v. Harrell (1982), 104 Ill. App. 3d 138, 145, 432 N.E.2d 1163, 1169.) Moreover, there is no evidence on the record of any improper influence arising out of the police department's actions. (See People v. Johnson (1976), 43 Ill. App. 3d 649, 658, 357 N.E.2d 151, 158.) Officer Smith did not tell Mrs. Telford defendant's name until after she positively identified him as one of the burglars, the one whom she slapped in the face.

Even if we were to find the photo lineup to be unduly suggestive, defendant still cannot overcome the strength of Mrs. Telford's independent in-court identification. It is clear that, in view of the totality of the surrounding circumstances, Mrs. Telford identified defendant at trial solely on the basis of her memory of the events at the time of the crime. (See People v. McTush (1980), 81 Ill. 2d 513, 520-21, 410 N.E.2d 861, 865; People v. Anton (1981), 100 Ill. App. 3d 344, 348, 426 N.E.2d 1070, 1075; People v. Levine (1981), 99 Ill. App. 3d 141, 158-59, 426 N.E.2d 215, 229.) Mrs. Telford had more than sufficient opportunity to view defendant at close range under good lighting conditions. She turned on several lights in the house with defendant following her from room to room. At one point she even slapped defendant's face. As she testified, she could not help watching his face, she looked right at it all the time. She could not keep from recognizing him. The fact that Mrs. Telford needs glasses for reading and sewing does not make her identification of defendant any less positive. As she herself stated, "I see awful good." She described defendant to the police and two ...


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