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03/03/89 the People of the State of v. Henry Graham

March 3, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HENRY GRAHAM, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 1382, 179 Ill. App. 3d 496, 128 Ill. Dec. 777 1989.IL.276

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, Henry Graham, was convicted of robbery and theft from a person following a jury trial in the circuit court of Lake County. Defendant was sentenced to seven years' imprisonment on the robbery conviction. On appeal, defendant argues the following: (1) the State failed to prove him guilty of robbery beyond a reasonable doubt; (2) defendant was denied a fair trial by an impartial jury where evidence of defendant's prior criminal history was intentionally elicited by the prosecutor; (3) defendant was denied his right to the effective assistance of counsel; (4) defendant was denied his right to due process by the exclusion of expert testimony as to the unreliability of eyewitness identification; and (5) the trial court erred in sentencing defendant to the maximum penalty.

Defendant's first argument on appeal is that the State failed to prove his guilt beyond a reasonable doubt in that the only evidence against him was the complaining witness' identification testimony. Defendant's argument is based on what we perceive as two separate issues. The first is whether the identification procedures used by the police were so impermissibly suggestive as to make unreliable and, hence, inadmissible the complaining witness', Ms. Conzelman's, pre-trial and in-court identifications of defendant. The second issue raised by defendant's first argument is, if Ms. Conzelman's identifications of defendant are sufficiently reliable to be admitted before the jury for its consideration, are these identifications, alone, sufficient to convict defendant beyond a reasonable doubt.

At approximately 5:30 p.m. on January 6, 1987, in Waukegan, Illinois, Leslie Conzelman was robbed in a parking lot. Ms. Conzelman testified at trial that she had just left work and had walked the couple blocks to the lot where she had parked her car. It was dark out. Her car was parked in a lot that had five to six overhead yellow lights. Each light illuminated an area of approximately six to eight cars. Her car was parked in the middle of the lot beneath one of these yellow lights. She carried in her left hand a briefcase inside of which was her purse. As she entered the parking lot, she noticed a black man wearing a navy knit cap with "scruffy" facial hair around the mustache area. She testified that she looked at this person very briefly. As she walked to the middle of the lot, she approached the left side of her car. She did not notice anyone else in the lot. She carried her briefcase in her left hand and her car keys in her right. As soon as she opened her car door, someone jumped on her back, grabbing her from behind. The attacker struck her in the face with an open hand while pushing her up against her car. The attacker was trying to pull Ms. Conzelman's briefcase from her. Ms. Conzelman was still being pushed against the car and could not see her attacker. Ms. Conzelman then decided to let go of her briefcase and told the attacker "just take it." At this point, she released the briefcase and turned and faced her attacker for the first time. She saw the same person she had briefly looked at when she entered the parking lot area. He was standing about one foot away, and they were face to face. Ms. Conzelman testified that he was a little taller than herself and looked scared. The attacker looked at her a few seconds and then backed away slowly to the south approximately 20 to 30 feet, the first 10 feet of which his face was illuminated by one of the parking lot lights. He then turned and continued walking south toward the back of a hot dog stand called Jordy's. Approximately 75 feet away, the attacker again turned and stared at Ms. Conzelman for a "few minutes." Ms. Conzelman testified that a spotlight in the back of Jordy's allowed her to again see the attacker's face. The attacker then turned and ran away. Ms. Conzelman further testified that she had seen her attacker at least two to three times before in the area at a nearby bus stop, the most recent time being December 1986. Ms. Conzelman returned to her office and called the police.

Approximately 10 minutes later, Officer Kevin Runyard arrived at Ms. Conzelman's place of employment. They talked briefly, and then Officer Runyard drove Ms. Conzelman around the area to see if she could point out her attacker. After a short drive, they proceeded to the police station where Ms. Conzelman went through approximately 300 mug shots of black males in a 45-minute period. During this time, she was seated at the same table as Officer Runyard but separated by a partition. Officer Runyard wrote his report while she viewed photos. Ms. Conzelman, after viewing all the photos, picked out two photos. The first photo was of defendant, Henry Graham. The second photo was of a man named Freeman Geater. Ms. Conzelman indicated that the first photo she picked closely resembled her attacker and that the first photo was closer to her attacker than the second photo. At this point, the police brought her two more photos. Those photos were of the same two people, defendant and Freeman Geater, and were apparently taken at the same time as the previous two photos Ms. Conzelman had picked out but from different angles. Ms. Conzelman again indicated that the photo of defendant was closer to her attacker than that of Freeman Geater. While at the station, Ms. Conzelman told Officer Runyard, as best she could, everything she remembered. She testified that she gave a description of the attack itself and of her attacker to Officer Runyard after having viewed the mug shots and selecting two mug shots as resembling her attacker. She testified that she told Officer Runyard all about the attack just as she described in her trial testimony. Further, she testified that she told Officer Runyard that her attacker was a black male, 5 feet 10 inches to 5 feet 11 inches. He wore a mid-length brown jacket, knit hat and pants and was in his early to midtwenties. She testified that she told Officer Runyard that the attacker had "scruffy" facial hair in the area of the mustache and beard. She denied telling Officer Runyard that her attacker had a large "afro." Ms. Conzelman then went home.

On January 8, 1987, Ms. Conzelman was asked to come to the police station to identify and retrieve her briefcase and purse, which had been found. Money and several credit cards were missing from her purse. After picking up her purse, Ms. Conzelman met with Lieutenant Stevenson for approximately 20 minutes. Lieutenant Stevenson showed Ms. Conzelman the same two mug shots she had originally picked out two days earlier. According to Ms. Conzelman's trial testimony, she thought she identified Henry Graham's photo as that of her attacker at that time. However, on cross-examination, she said she was not certain that she identified defendant's mug shot as that of her attacker on January 8, 1987. She also stated on cross-examination that she told Lieutenant Stevenson that she had seen her attacker several times at a bus stop in the downtown area on prior occasions, most recently in December 1986. She also testified that she described the attack and attacker to Lieutenant Stevenson but denied saying the attacker had "dread locks." She stated she told Lieutenant Stevenson her attacker possibly had long curly hair because it was sticking out the front of the attacker's cap.

On January 13, 1987, Ms. Conzelman was at work when Officer Marquez came by to see her. Ms. Conzelman testified that he had two photos she had never seen before. These photos were of the same two people whose mug shots she had previously picked out the night of the robbery. She testified that she told Officer Marquez that one of the photos, defendant's, was of the robber, and the other photo, that of Freeman Geater, clearly was not. The two photos were more recent pictures of defendant and Freeman Geater. At this point, Officer Marquez had Ms. Conzelman accompany him in his car on a 15-minute drive to observe black males, none of whom she recognized. They then pulled up to the Waukegan Township office and observed six people in front of the building. Four of the people were black, and Ms. Conzelman did not recognize any of them. Officer Marquez then exited the car and went inside the township office and came out with defendant, whom he placed against the wall of the building. Ms. Conzelman testified that Officer Marquez came back to the car and asked Ms. Conzelman if this was her attacker, and she said, "Yes." Officer Marquez called in other officers to arrest defendant.

Officer Runyard was the next witness for the State. He testified to receiving a report of a robbery over the radio. The description he received over the radio was a black male, 5 feet 10 inches to 5 feet 11 inches, with a blue knit hat, brown jacket, blue jeans and full "afro" hair. Officer Runyard responded to Ms. Conzelman's work address, where he talked with her for 15 to 20 minutes, and then proceeded to drive the area with Ms. Conzelman before taking her to the police station. Officer Runyard testified that Ms. Conzelman's description of the attack was brief. He testified that she described a brief struggle and that the attacker ran off to the south with her briefcase. He also recalled her saying she saw the attacker face to face. However, Officer Runyard's report did not contain reference to the attacker backing up, any mention of Jordy's or any face-to-face confrontation. Further, Runyard's report did not contain any reference to a description of facial hair, nor did he recall Ms. Conzelman ever saying the attacker had facial hair. However, Officer Runyard did recall Ms. Conzelman saying the attacker had a full "afro."

Lieutenant Stevenson testified next for the State. He testified that on January 8, 1987, he showed Ms. Conzelman the two photos she originally picked out of the mug books, and she stated again that defendant's "is closer to the offender than any other." He also testified that he discussed the attack and attacker with Ms. Conzelman and that she never mentioned that the attacker walked toward Jordy's. Further, Lieutenant Stevenson testified that Ms. Conzelman told him the attacker had a mustache and "dread locks"; was 5 feet 9 inches to 5 feet 10 inches; and 150 pounds with a thin build.

Officer Marquez was the next and last witness for the State. He testified that on January 13, 1987, Lieutenant Stevenson told him to get updated photos of two "possible offenders," defendant and Freeman Geater, the two people Ms. Conzelman had identified as resembling her attacker. Officer Marquez testified that although his report did not indicate it, he attempted to look for Freeman Geater for 15 to 20 minutes on January 13, 1987, and was unable to find him. Officer Marquez then proceeded to defendant's residence. Defendant was not there, and Officer Marquez proceeded to the Waukegan Township office, where he found defendant. Officer Marquez informed defendant that he was doing a police investigation and asked defendant if he would accompany Officer Marquez to the station. Defendant voluntarily went to the police station, where Officer Marquez took a Polaroid snapshot of defendant and then returned ...


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