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12/09/87 the People of the State of v. Michael A. France

December 9, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL A. FRANCE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

516 N.E.2d 1036, 163 Ill. App. 3d 819, 114 Ill. Dec. 881 1987.IL.1813

Appeal from the Circuit Court of Peoria County; the Hon. Stephen J. Covey, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. BARRY, P.J., and WOMBACHER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The defendant, Michael France, appeals from the judgment of the circuit court of Peoria County finding him guilty of robbery. France was charged by indictment with robbery, in violation of section 18-1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1985, ch. 38, par. 18-1.) Following a jury trial, France was found guilty of the charged offense and sentenced to serve a four-year term of imprisonment.

France appeals his conviction on the basis that he was denied effective assistance of counsel. He contends that his attorney failed to seek suppression of two photo identification procedures despite the fact that most of the photographs allegedly used in the array were actually taken after the date of the identification procedures. The State counters this argument and states that by virtue of a sheriff's department policy of always using the most recent available photo of an offender, the State merely had the wrong photos presented at trial. They further contend that this was harmless error. Due to the narrowness of this issue, only those facts necessary will be presented. Further, the State filed a motion to amend the record, to which France has objected, and we have taken that motion with the appeal for consideration.

The robbery victims were examining a vehicle at a used car lot when they were allegedly approached by France and a companion. They exchanged words and the perpetrators eventually left with the victims' money. The victim then filed a complaint with the police. Several weeks later, the victim spotted the car he believed the defendant had been driving the night of the robbery. He noted the license number and reported it to police. He saw the car again later that evening, but was not sure whether he reported it. The victim was shown some photographs on July 3, 1986, and he picked France's picture out after being shown two or three photos. He also identified France at trial as the perpetrator. The other victim also identified France from a photo identification about one month after the incident after viewing the photos for about 25 seconds. He also identified France at trial.

Although 1 of the 10 photos used in the lineup was lost, an officer testified that the remaining photos were the ones used in the arrays presented to the victims. Prior to submitting the photos to the jury, France objected that the photos should not be used because they implied prior arrests. The court overruled the objection. The defendant did present an alibi defense at trial. France was convicted and sentenced and this appeal follows.

France contends that the pictures admitted into evidence at trial could not have been used in the photo arrays because the dates on the pictures show they were taken after the July 3 identification. This, he asserts, suggests that the photo identification could not have occurred as the officer suggested. With this as a basis, France asserts that his trial counsel was on notice as to the allegedly flawed procedure and should have sought suppression of the identification testimony. Because he did not, France claims he was denied effective assistance of counsel.

The State asserts that it was merely an administrative procedure which resulted in the erroneous pictures being admitted at trial. Nearly five months had elapsed between the robbery and the trial. The State contends that the photos used in the photo arrays were returned to their respective files, and when the photos were requested for trial, it is the practice of the records bureau to submit the most recent picture available unless it is specified otherwise. This, along with accompanying affidavits and the photos allegedly used in the photo identification, comprised the State's motion to amend the record on appeal.

The first issue we address is the State's motion to amend the record. In support of its motion, the State cites only Supreme Court Rule 329, which states:

"The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a Judge thereof. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth. If the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant. If necessary, a supplemental record may be certified and transmitted." (107 Ill. 2d 329.)

The State clearly seeks to expand the permissible application of Rule 329. Although this court is permitted to allow amendments to the record, any supplementation must have a basis in the trial court record. The issue of the photos was raised for the first time on appeal, and because no proceedings had been held in the trial court on the issue, we will not permit an amendment to include the proper pictures. (See Meyerson v. Software Club of America, Inc. (1986), 142 Ill. App. 3d 87, 491 N.E.2d 150 (appellant not entitled to supplement record on appeal with five letters and affidavit of author of letters attesting to their accuracy which had not been filed in the ...


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