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09/30/88 the People of the State of v. Gary Crowder

September 30, 1988





529 N.E.2d 83, 174 Ill. App. 3d 939, 124 Ill. Dec. 366 1988.IL.1501

Appeal from the Circuit Court of Sangamon County; the Hon. Philip Schickedanz, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.


After a bench trial, the circuit court of Sangamon County convicted defendant Gary Crowder of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18-2(a)) and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(b)(1)). The court sentenced defendant to 15 years' imprisonment for the offense of armed robbery and five years for the aggravated battery, the terms to run concurrently. Defendant appeals arguing the unreliability of the identification evidence. We affirm.

Defendant was charged with armed robbery and aggravated battery in connection with the shooting and robbery of David Lacy in the early morning hours of October 17, 1987. Lacy testified that after he left a Springfield social club around 4:30 a.m. two men approached him as he entered his car. One of the men, whom Lacy identified in court as defendant, pointed a gun through the car window and ordered Lacy to get out. Defendant told Lacy he was being robbed and to give up his money. Lacy gave defendant $8. Defendant then placed the gun against Lacy's forehead and pulled the trigger, but the gun misfired. After the gun was recocked, defendant placed it against Lacy's neck and grabbed him by the collar. He proceeded to strike Lacy on the side of the head with the gun. When the blow knocked Lacy to the ground, defendant shot him in the leg. Just before Lacy was able to run away, he heard the gun misfire again as defendant pointed it at Lacy's head.

On cross- and redirect examinations, Lacy said he was sure he correctly identified defendant as his attacker, even though he admitted he was frightened and it was dark at the time.

Two days after the crime, a police officer showed Lacy a five-picture photographic lineup. The officer testified Lacy indicated the photograph of defendant depicted the man who robbed and shot him. Lacy identified defendant's picture within 5 to 10 seconds. The photo array depicted men of the same race and facial characteristics, but on cross-examination, the officer admitted defendant's photograph was the only one of the five which lacked a sticker covering a portion of the picture. The trial court denied defense counsel's motion to exclude the photographic evidence and to quash Lacy's in-court identification of defendant., Defendant denied the charges and testified he was at a motel with his girlfriend at the time the offense was committed.

In closing, defense counsel again argued the evidence was insufficient to convict defendant based on a suggestive photographic lineup and the victim's early morning identification of defendant when it was dark and the victim was frightened. The trial court found defendant guilty as charged. Defendant filed a written post-trial motion for a new trial, in part arguing the evidence was insufficient to support a verdict of guilty.

Although defendant made a general post-trial motion, he failed to specifically include in it his arguments the initial identification of defendant was unreliable and the later photographic lineup was suggestive. For this omission, the State argues the issue of the reliability of the identification evidence has been waived on review. People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.

Our supreme court has emphasized the importance of specificity in post-trial motions. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337.) In criminal cases, both an objection at trial and a written post-trial motion raising the same issue are required to avoid waiver in the absence of plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 185-91, 522 N.E.2d 1124, 1129-32.) However, in a bench trial, a post-trial motion is not necessary to preserve for review questions addressing the sufficiency of the evidence, or other types of issues if they were first presented to the trial court. (People v. Larsen (1977), 47 Ill. App. 3d 9, 361 N.E.2d 713; People v. Morris (1979), 79 Ill. App. 3d 318, 398 N.E.2d 38.) Consequently, we will review defendant's argument the identification testimony presented at his trial was unreliable and, thus, insufficient to support his conviction.

Defendant argues Lacy's eyewitness testimony identifying the perpetrator of the armed robbery and aggravated assault was unreliable because (1) he did not have a good opportunity to view his attacker under adequate conditions during the crime and (2) the later photographic identification was impermissibly suggestive.

A criminal conviction cannot be based on vague, doubtful, or uncertain identification testimony. (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153; People v. Henne (1988), 165 Ill. App. 3d 315, 518 N.E.2d 1276.) However, reliable testimony of a single witness who viewed the defendant under circumstances that would permit a positive identification is sufficient to support a conviction. People v. Watkins (1970), 46 Ill. 2d 273, 263 N.E.2d 115; People ...

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