APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
516 N.E.2d 649, 163 Ill. App. 3d 346, 114 Ill. Dec. 494 1987.IL.1650
Appeal from the Circuit Court of Cook County; the Hon. Robert Collins, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. LORENZ, J., concurs. PRESIDING JUSTICE SULLIVAN, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Following a bench trial, defendant, Thomas Taylor, was found guilty of the March 11, 1982, armed robbery of Bruce and Ken's Pharmacy and the May 29, 1982, armed robbery of Kaplan's Prescription Pharmacy. He was sentenced to two concurrent terms of six years' imprisonment in the Illinois Department of Corrections. On appeal, defendant contends that (1) the State failed to prove by clear and convincing evidence that there was an independent basis for the robbery victims' in-court identification of him as the robber, and (2) the evidence does not establish his guilt beyond a reasonable doubt.
Prior to trial Taylor presented a motion to quash his arrest and to suppress all evidence derived therefrom. At the hearing on Taylor's motion, Taylor testified that the police came to his home at about 10:30 or 11 p.m. on January 11, 1983, and told him that a six-year-old girl had picked his picture out of a mug book as being the person who molested her and that they were taking him to the police station so that the girl could identify him. Taylor stated that the police did not show him an arrest warrant, that he was not given his Miranda rights, and that he did not go with the officers voluntarily.
Taylor testified that at the police station he asked to see the girl. He was then told by the arresting officer that there was no girl and that he was not at the police station for child molestation, but that he was there for armed robberies because a person named Johnny Harban, with whom Taylor was acquainted, had implicated him. The following day, after having been in custody at the police station for a day and a half, Taylor was finally placed in lineups and he was viewed by about 40 people. Although Taylor was not identified in any of the lineups by anyone, he nevertheless was charged with two separate counts of armed robbery.
The next witness called by defense counsel on the hearing of the defendant's motion to quash his arrest and suppress evidence was Chicago police detective Raymond Schalk. Schalk testified that although Taylor had not been identified as a robber by any robbery victim, he went to Taylor's home on January 14, 1982, in furtherance of his investigation of the armed robberies of drug stores which occurred March 11, 1982, and approximately June 19, 1982. Detective Schalk stated that he went to the defendant's home based upon information given him by an informant, whom he had not used on prior occasions. The informant had been involved in several offenses but the informant was not involved in the March 11, 1982, robbery of Bruce and Ken's Pharmacy or the May 29, 1982, robbery of Kaplan's Prescription Pharmacy, with which the defendant, Taylor, was charged. Schalk was not asked to and he did not identify the informant.
Detective Schalk related further that on January 13, 1983, Johnny Harban, who was in police custody, made statements to police officers regarding his armed robberies of drugstores and medical centers in which Harban named the defendant, Thomas Taylor, as Harban's accomplice in these robberies. Harban was not identified by Detective Schalk as the informant about whom he had previously testified.
Detective Schalk further related that he took the defendant from his home to the police station and that after being at the police station for approximately 10 hours, the defendant was placed in lineups.
Although Detective Schalk testified that after the lineups he sought approval from the State's Attorney to place formal charges against the defendant, there is no evidence in the record that the defendant was identified in any lineup as a robber by any robbery victim. *fn1
The trial court sustained the defendant's motion and quashed the defendant's arrest, suppressed all evidence derived therefrom, and stated:
"THE COURT: It is undisputed there were no warrants here. The defendant says he did not go voluntarily. He says he was taken to the police station . . .. . . .
When he was at the police station he was told for the first time that he was there on an armed robbery investigation. He was handcuffed and left in this room, put in various lineups, and viewed by about forty people. . . . Detective Schalk says that they went to the defendant's home. They had no warrant. The defendant had not been identified by any victims in lineups or photographs.
[The arresting officers] said he was not under arrest, that he did not refuse to go with them. They said he was free to leave. However, when he got to the police station and was warned of his rights they then arrested him without any intervening circumstances that would show that he was free to leave earlier. But now he's under arrest and he cannot leave. There has been no change in circumstances, which I find rather puzzling.
There are no exigent circumstances, obviously, that would justify them going into a man's home without a warrant, which they did not have.
. . . I cannot conclude that this defendant went willingly or that he gave them consent to enter his home . . ..
. . . [But] it seems to me they should have gotten a warrant. That's the proper thing to do.
Accordingly, I conclude as a matter of law that they lacked authority to enter the defendant's home against his will, take him down to the police station against his will, and I'll sustain the motion."
Although the State had the right to appeal the trial court's suppression order under section 114-12(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 114-12(c)), the State elected not to appeal. Instead, the State proceeded to trial.
As previously stated, there was no evidence presented on the hearing of the suppression motion, or at trial, that the defendant was identified in any lineup as a robber by any robbery victim; nevertheless, at the Conclusion of the suppression hearing and immediately before the cause proceeded to trial, the following colloquy occurred:
"THE COURT: I'm suppressing the evidence.
[Assistant State's Attorney]: I understand that, all it is is an identification that we lose.
[Defense Attorney]: The only identification that has been made in this case is the lineup identification.
[Assistant State's Attorney]: That's correct.
THE COURT: Anything that follows from the illegal arrest I'm suppressing.
[Assistant State's Attorney]: We can make an in-court identification.
THE COURT: . . . What I'm doing is suppressing the lineup.
The identification can be an in-court identification. I'm sustaining the motion and suppressing any evidence that flows from this illegal arrest. However, that does not mean the witnesses cannot testify. I'm sustaining their identification of the lineup."
The cause proceeded to trial.
Cathy Gillmeister testified that on March 11, 1982, she was employed as a cashier at the front counter at Bruce and Ken's Pharmacy located on the corner of Harlem and George in Chicago. She testified further that at about 9:20 p.m., two white men walked into the pharmacy and that one man walked down an aisle to the back of the store while the other man stood at the front counter, pulled out a handgun and told her to stay calm and to lie down. The man opened the cash register drawers and took money. He then led Cathy to the back of the store and told her to lie down. When he could not open the cash register drawers in the pharmacy, he ordered Cathy to get up and open the drawer, which she did. The robber again told her to lie down. Cathy was not sure whether both men were the same height. She explained that she saw them for only a few seconds. She did not identify anyone as one of the robbers.
Ralph Gilbert Herbst, the pharmacist-manager of Bruce and Ken's Pharmacy, testified that at approximately 9:20 p.m. on March 11, 1982, two men entered his store. Herbst said one man walked down an aisle of the store, stepped into the pharmacy where Herbst was working, pulled out a shotgun and announced a robbery. Herbst said the man told him that he should cooperate or else he would be harmed. The pharmacy was very well-illuminated by fluorescent lights. The floor in the pharmacy area was elevated six to eight inches higher than the floor in the rest of the store. Herbst testified that the man with the shotgun was white, 30 to 35 years old, between 5 feet 9 inches and 5 feet 10 inches tall, weighed 170 to 180 pounds, and had dark blonde hair, a mustache, a drawn face, and unusual cup-shaped ears. The man was wearing a brown corduroy coat, a brown hat, dark brown pants and "very funny" brown wing-tip shoes that had been shined.
Herbst said that the man asked him where he kept his gun and that Herbst denied that he had one. The man then placed the barrel of the shotgun to Herbst's head and led him to the back room of the store where another employee, Jeff Rykal, was working. At the robber's command, Herbst instructed Rykal to return to the pharmacy with him. Both men were ordered to lie face down on the floor in the liquor department. After a few seconds the man dragged Herbst back to the pharmacy, where he saw the other armed man leading Cathy Gillmeister, a store employee, to the liquor department to join Rykal.
The man who held the shotgun demanded to know where the narcotics were that had been delivered to the pharmacy the day before. Herbst acknowledged that a shipment of drugs had been received. The man then asked Herbst where he kept the "Class A" drugs and named three drugs containing narcotics that he wanted, dilaudid, morphine and cocaine. The man and his accomplice forced Herbst to kneel and pushed him around the pharmacy as Herbst obtained the drugs for them. One man threatened to shoot Herbst's knee off because Herbst was not finding the drugs fast enough. The two men took nearly all of the "Schedule 2" drugs in the pharmacy, Valium, approximately $1,000 in currency and coins and Illinois State Lottery tickets. They led Herbst back to the liquor department and forced him to lie on the floor next to the other two employees. The two robbers then fled through the back door of the pharmacy. Herbst estimated that the two men were in the pharmacy for 10 to 15 minutes, during which he was able to observe the face of the man with the shotgun for approximately five minutes.
When the police arrived, Herbst admitted that he described the man with the shotgun to them as 35 to 40 years old, and wearing a brown coat, brown hat, fancy brown wing-tip shoes and dark pants. Herbst went to the police station and looked at about 10 books of photographs but was unable to find the robbers' pictures. Herbst viewed a lineup on March 28, 1982, but the robbers were not in that lineup. Herbst identified the defendant in court at trial on March 30, 1984, as the man with the shotgun who robbed him two years previously, on March 11, 1982.
Ralph Herbst testified on cross-examination:
"Q. From the day of the robbery until today, as you sit on the witness stand, have you seen a photograph that appears to be the same man that was in the pharmacy?
[Assistant State's Attorney]: Objection, your Honor.
THE COURT: You may answer.
Q. When did you see that photograph?
Q. And who showed you a photograph?
A. The State's Attorney."
Herbst testified further on cross-examination that the description he gave the police was that the man who held the shotgun was in his late thirties or forties, 5 feet 9 to 5 feet 10 inches tall and weighed 170 to 180 pounds. Herbst was asked to describe defendant Thomas Taylor as he appeared in court. Herbst estimated that Taylor was 5 feet 8 inches tall, weighed between 160 and 170 pounds and had a slim build.
The May 29, 1982 Robbery of Kaplan's Prescription Pharmacy
Lester Jameson, the owner of Kaplan's Prescription Pharmacy, located at 3148 North Cicero Avenue in Chicago, testified that at approximately 5:10 p.m. on May 29, 1982, a man robbed him at gunpoint. The man entered his store, approached the back counter near the pharmacy and asked for a pack of cigarettes. Jameson went to the front of the store to get them. When he returned, the man pointed a handgun at him and ordered him to give him his wallet and to open the cash register. The man took approximately $60 from Jameson and approximately $140 from the two cash registers. Jameson described the robber as 35 to 40 years old, approximately 5 feet 9 inches tall, 160 pounds, with a light blonde mustache and a receding hairline, wearing a checkered shirt, a gray baseball jacket and blue jeans.
Jameson further testified that the robber ordered him into the back room where the prescription drugs were kept and Jameson gave the man the drugs in the narcotics drawer. The man then instructed Jameson and his employee, Tom Lehning, to lie face down on the floor and not to move for at least 15 minutes or else he would kill them. The man emptied the cash register in the back of the store and left.
Jameson estimated that the robber was in his store for approximately five minutes and that he observed the man's face "practically the whole time." When the police arrived, Jameson described the robber to them and further mentioned to the officers that the robber was balding. Jameson identified the defendant, Thomas Taylor, in court at trial as the man who robbed him.
On cross-examination, Jameson was asked to describe the defendant Taylor as he appeared in court. Jameson estimated that Taylor was "a little bit taller" than he, perhaps 5 feet 10 inches, or 5 feet 11 inches tall, and that his mustache seemed heavier in court.
James testified that on June 10, 1982, he went to the police station and viewed a lineup but did not look at photographs. He was not asked and he did not state whether he identified anyone in the lineup. The defendant had not then been arrested and he was not in that lineup. Jameson testified further on cross-examination, however:
"Q. Now, sir, between the time of the robbery and today have you seen a photograph of the individual you have identified in court today?
Q. And when did you see that photograph?
Lester Jameson testified on redirect examination:
"[Assistant State's Attorney]: Q. When was it that I showed you that photograph?
A. You laid some pictures down on the table, I think they were all of five or six people lined up and I looked at it and I pointed to the defendant then and I said is this -- this is the guy, isn't it and you said yes it was.
Q. And that was approximately what time this morning?
A. About 9:00 o'clock this morning, 9:30."
It was stipulated that on the date of the robberies, March 11 and May 29, 1982, the defendant was 27 years old. The State then rested. Defense counsel ...