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May 19, 1994


Appeal from the Circuit Court of Cook County. Honorable Loretta Hall Morgan, Judge Presiding.

Released for Publication July 14, 1994. As Corrected July 27, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Theis, Cahill, Johnson

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Defendant Joseph Curtis was charged by indictment with two counts of murder and one count of armed violence. After a jury trial, defendant was found guilty of one count of murder. The jury found defendant ineligible to receive the death penalty. Defendant was sentenced to 40 years in the Illinois Department of Corrections. Defendant now appeals his conviction.


Defendant was convicted of the April 10, 1988, murder of Robert Springs.

Two days before that murder, on the night of April 8, defendant shot Terry Ware, a man who had dealt drugs together with Robert Springs. On this night, defendant had walked in on an argument in the street involving Ware, Springs, and a third person over who was going to sell drugs in a certain building. After the third person stated that he would "take care of it," defendant left and said he would return.

Five minutes later, defendant, hands in his pockets, approached the group. Ware asked defendant, "You went and got a gun, didn't you?" Ware reached out and patted defendant's jacket pocket and felt an object. Ware said, "Oh, he got a gun." Ware then told Springs, who was standing 10 feet away, "Rob, shoot him." Defendant, however, pulled a gun. Ware turned to run, and defendant fired three shots at him. Ware's back was to defendant when defendant began shooting. Ware was shot and subsequently died at the hospital of a gunshot wound to the back. Later that night, two eyewitnesses to the shooting identified defendant's photograph out of a photo array at Area 5.

The murder of Robert Springs occurred two days later. At 10 p.m. on August 10, 1988, Springs had received a telephone call. After hanging up the phone, he picked up his car keys, told his sister Claudette that he would return in 15 minutes, and left the house. Moments later, some gunshots rang out. At that time, Claudette, who was on the second floor of the house in a front bedroom, rushed to a window overlooking the street below. She saw her brother's car with its tires spinning and a dark-skinned man with long curls standing at the window of the driver's side of the car. A few seconds later, she saw the car take off down the street and the man turn to run through a gangway. Claudette saw the man turn around, holding a gun in his hands. The man then ran to a car which was waiting in a gangway across the street. Claudette raced into the street to her brother's car, which had crossed a street and crashed into parked cars. She saw that her brother had been shot in the forehead. Robert Springs was taken to Loretto Hospital, where he died of the bullet wound.

At trial, Claudette Springs testified that there was a street light in front of the house and that her view of the street was unobstructed on the night of the shooting. She testified that the dark-skinned man whom she observed from her second-floor window had curls and was wearing a dark jean outfit, brimless hat, and gym shoes. She also testified that on the day after the shooting, a police officer came to her house and showed her six photographs. Claudette identified defendant's photo from the photo array as the man whom she saw standing beside her brother's car.

On November 4, 1988, seven months after the shooting, Claudette went to the police station and again identified defendant's photo from a five-photograph array. Later at trial, she picked the same photograph of defendant out of the five photographs she was shown.

On November 18, 1988, Claudette went to the Cook County jail to view a lineup. After being shown a four-man lineup, she picked out defendant, who was then wearing his hair in some sort of a "perm." At trial, Claudette again identified defendant in a lineup photograph and also in person in the courtroom.

The jury found defendant guilty of first degree murder, but not eligible for the death penalty. The trial court sentenced defendant to a 40-year term. Defendant filed his notice to appeal on January 14, 1991.

We affirm defendant's conviction.


I. Identification

Defendant initially contends that he was not proved guilty of murder beyond a reasonable doubt because the State's identification evidence was insufficient.

A reviewing court will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of the defendant's guilt. ( People v. Stanciel (1992), 153 Ill. 2d 218, 235, 606 N.E.2d 1201, 1210, 180 Ill. Dec. 124.) The standard to be applied in reviewing the sufficiency of evidence is whether any rational trier of fact, after viewing the evidence in a light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. People v. Ward (1992), 154 Ill. 2d 272, 314, 609 N.E.2d 252, 269, 181 Ill. Dec. 884.

The credibility of identification witnesses and the weight accorded their testimony lie within the province of the trier of fact. ( People v. Godinez (1989), 191 Ill. App. 3d 6, 10, 547 N.E.2d 561, 563, 138 Ill. Dec. 394.) Where the identification of defendant constitutes the central question in a criminal prosecution, the testimony of even a single witness is sufficient to convict where the witness is credible and viewed the accused under conditions permitting a positive identification to be made. People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319, 130 Ill. Dec. 250; People v. Wardell (1992), 230 Ill. App. 3d 1093, 1098, 595 N.E.2d 1148, 1151, 172 Ill. Dec. 478; Godinez, 191 Ill. App. 3d at 10, 547 N.E.2d at 563.

In evaluating an identification, courts are to consider the following five factors: (1) the opportunity the victim had to view the accused at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the accused; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. Slim, 127 Ill. 2d at 307-08, 537 N.E.2d at 319; Wardell, 230 Ill. App. 3d at 1098, 595 N.E.2d at 1151.

Defendant argues that the first three of these factors weigh in his favor. We disagree. First, Claudette had sufficient opportunity to observe defendant after gunshots rang out because she had, from her vantage point on the second floor of her house, an unobstructed view of the street down below where the shooting took place. Although Claudette did not view defendant for an extended period of time, she nevertheless saw him long enough to observe that he was armed, that he had been standing on the driver's side of her brother's car, and that he subsequently ran through a gangway just across from her house. Second, Claudette's attentiveness in observing the scene is exemplified by her ability to recall that defendant was carrying a gun, that defendant ran to a car, that defendant wore his hair in curls, and that he wore a dark jean outfit, gym shoes, and a gray hat. Third, although Claudette initially described defendant as 5 feet 8 inches to 6 feet tall and weighing 150 pounds when in fact he is 5 feet 4 inches and weighs 135 pounds, this description does not render her identification unreliable. (See Slim, 127 Ill. 2d at 312, 537 N.E.2d at 321 (noting that discrepancies in descriptions of height and weight are not decisive factors on review because few persons can make accurate estimations of such characteristics).) Claudette was able to provide specific detail about defendant's appearance, clothing, and hairstyle, and to identify defendant in a photo array on the day after the shooting and in a lineup photograph taken seven months later, even though defendant's hair was much shorter in both photographs than on the night of the shooting.

Viewing the testimony in the record in a light most favorable to the prosecution, we must conclude that a rational jury could find the essential elements of a reliable identification to support a conviction beyond a reasonable doubt.

II. Motion to Suppress Photo Arrays

Defendant next argues that the trial court erred in denying his motion to suppress all identification testimony. Defendant contends that the entire identification procedure used by the police was unnecessarily suggestive, since his photograph was the only one to appear in the photographic arrays shown to Claudette Springs in both April and November 1988. Defendant also argues that the use of a photo array while he was in custody tainted the subsequent lineup procedure. Finally, defendant contends that he was the only person in both photo arrays and the lineup.

In denying defendant's motion to suppress, the trial court found that Claudette Springs had positively identified defendant's photo out of the photo ...

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