APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
544 N.E.2d 1019, 188 Ill. App. 3d 506, 136 Ill. Dec. 244 1989.IL.1374
Appeal from the Circuit Court of Cook County; the Hon. Thomas Hett, Judge, presiding.
JUSTICE HARTMAN delivered the opinion of the court. SCARIANO and DiVITO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
Defendant Louis Ortiz was charged by information with aggravated battery, armed violence, and attempted murder, arising out of the shooting of Enrique Cruz. Following a bench trial, defendant was acquitted of attempted murder, but found guilty on three counts of aggravated battery and two counts of armed violence, and sentenced to 15 years in custody of the Illinois Department of Corrections. He appeals from that finding and raises as issues whether: the circuit court erred in failing to suppress an in-court identification of him as fruit of an unlawful arrest and the evidence was sufficient to prove him guilty beyond a reasonable doubt.
On October 18, 1984, at approximately 12:30 a.m., Enrique Cruz (Cruz) was shot near a tavern located on North Damen Avenue in Chicago. Defendant subsequently was arrested and charged in connection with the offense. Prior to trial, defendant moved to quash his arrest and suppress certain evidence, which included photographic and lineup identifications of defendant made by Cruz. At the suppression hearing, Detective John Howe testified that on the evening of November 27, 1987, he was investigating the shooting of Cruz when he arrested defendant. Three weeks earlier, Cruz had informed Howe that shortly before being shot, he was harassed by members of the Warlords and Latin Kings street gangs. According to Howe, Cruz had described the gunman as a white male Hispanic, having dark hair, approximately 5 feet 6 inches tall with a slight build, and about 20 years old. Howe did not recall if Cruz mentioned whether the assailant had a mustache or beard.
Howe, knowing defendant was a member of the Latin Kings who fit the general description provided by Cruz, stopped defendant on the street, searched him, and recovered a .25 caliber handgun. Howe then arrested and photographed defendant. Cruz selected defendant's picture from a photographic display as the person who shot him. He also identified defendant in a lineup held the next day.
The court found defendant did not adequately fit Cruz' general description of the gunman as recounted by Howe; citing a lack of articulable facts to warrant the initial stop of defendant, it concluded he was arrested without probable cause. The physical evidence seized pursuant to the arrest, and the photographic and lineup identifications made by Cruz, were suppressed as a consequence.
The court heard defendant's motion to suppress Cruz' in-court identification simultaneously with the trial. Cruz, the State's first witness, testified that at 12:15 a.m. on October 18, 1984, he went into the subject tavern to see his friend "Marcos." After having a beer, he stepped outside where he was confronted by 10 to 13 individuals. Four men from this group walked up to Cruz and asked him if he "was a Latin Disciple or if [he] was Folks." Cruz denied any gang affiliation. Marcos then walked outside and advised the group that Cruz was a family man and did not belong to a gang. Cruz and Marcos returned inside the tavern.
Cruz decided to leave two or three minutes later and was accompanied by Marcos to the front of the tavern. Alone, Cruz proceeded to his van, parked directly across the street. As he put his key in the vehicle door, he heard a shot and turned around. He saw a man, who he later identified as defendant, coming toward him, shooting continuously. Cruz tried to crawl under his van to avoid the shots, but nevertheless was struck four or five times. Defendant jumped over Cruz and ran down a gangway near an empty lot on the east side of Damen.
Cruz further testified that when he first saw defendant, he was about 20 feet away, but quickly closed to within four or five feet. Cruz looked straight at defendant, whose face was uncovered, for two or three minutes. He described the lighting conditions as "very bright" from "bright street lights" positioned directly above the space where his van was parked. He also remembered additional lighting coming from the street corner, as well as from a light immediately above the tavern's doorway.
After the shooting, Cruz was taken to a hospital, where he remained for a month and a half. He averred that while still in the hospital, he gave police the following description of his assailant: 5 feet 6 inches or 5 feet 7 inches height; 145 to 160 pounds; a small "fro"; a goatee, with the nubs of a mustache; flat nose; olive color skin; and wearing a dark brown jacket.
On cross-examination, Cruz denied telling police: he was first approached by gang members while still inside the tavern; he "passed out" after the shooting; or Marcos walked him all the way to the street corner before he continued on alone to his van. He acknowledged he was shot in the back, but claimed it occurred when he attempted to crawl underneath his van. He also maintained that a streetlight was located across the street from the tavern and was centered directly over his van.
Upon completion of Cruz' testimony, the defense moved to have his in-court identification of defendant suppressed, based upon discrepancies in the description Cruz claimed to have provided police, and his "inadequate opportunity" to observe the offender during the shooting. Defense counsel concluded no independent basis of reliability existed for the in-court identification.
The court commented that the State presented evidence that Cruz: had a sufficient opportunity to observe in a place where "considerable" observation was possible; had a memory for events and an ability to communicate those memories; and gave a detailed description to police. Finding a "sufficient attenuation that the ...