The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County. Honorable Michael Toomin, Judge Presiding.
Defendant Gerald Lawson (defendant) appeals from his conviction for armed robbery and his sentence to imprisonment for natural life in the Illinois Department of Corrections by the circuit court of Cook County. On appeal, defendant argues that the circuit court improperly admitted evidence at trial that was previously excluded in a suppression order and that the identification testimony presented by the State was insufficient for conviction. We reverse.
Only facts essential to the understanding of the issues in this appeal follow. Other facts of this case, which are adequately set out in our prior opinion disposing of the first appeal in this case (People v. Lawson, 298 Ill. App. 3d 997, 700 N.E.2d 125 (1998)), need not be repeated here.
Defendant was arrested on February 17, 1996. In March of 1996 he was charged with, inter alia, armed robbery (720 ILCS 5/18-2(a) (West 1994)), for an armed robbery and shooting that occurred on February 17, 1996, at a dry cleaning store at 6445 Cottage Grove in the City of Chicago. On May 6, 1997, defendant made a motion to "quash arrest and suppress evidence" asking that various items of physical evidence, statements and identifications related to his arrest be suppressed, which Judge Holt (the first judge) granted in its totality on the grounds that defendant had been arrested without probable cause. The relevant text of the motion to suppress is set out in full below. The State appealed the suppression order, but only challenged the standard that Judge Holt applied in finding a lack of probable cause and did not challenge the scope of the suppression order. The order was affirmed on appeal.
After the case was remanded and reassigned to Judge Toomin (the second judge), the State filed a petition for a hearing on attenuation. This petition was denied. The court did agree, however, to hold an independent basis hearing. After the hearing, the second judge found that an independent basis existed for the suppressed in-court identification testimony. The second judge ruled that the State could present testimony regarding post-arrest lineup identifications of defendant; an identification made at the hospital by a witness from a photograph taken of defendant after the arrest; and testimony of a police officer of events leading up to defendant's arrest.
At trial, Gloria Jones first testified for the State. Jones stated that she was at work at Reid's Cleaners on the date in question. At about 1:45 in the afternoon a "customer," wearing a face mask and a cap, came into the store carrying a sweater. As Jones wrote a receipt for the sweater, the customer grabbed her by the shoulder, pointed a gun at her head, and dragged her to the back of the store. Subsequently, Arthur Hearns, an employee of the barber shop next door, came into the cleaners. The offender told Hearns that he would kill him and Jones if he came in any farther. Hearns moved farther into the store and was shot by the offender. Hearns then knocked the offender down and the offender fled. Jones made an in-court identification of defendant. On cross-examination, she admitted that she did not see a moustache on defendant during the incident.
Arthur Hearns next testified for the State. On the date in question, Hearns was working at the barber shop next door to Reid's cleaners. At around 1:45 in the afternoon, one of the other employees of the barber shop told Hearns she heard someone yelling for help next door. Hearns then went next door and saw that someone was holding Jones. The offender told him to stay back, but Hearns moved towards him and was shot in the leg. Hearns then snatched the offender's mask off and threw the offender to the floor. Hearns testified that the offender fled. Hearns testified that he was then taken to the hospital. Hearns testified that the police visited him at the hospital on February 17 and showed him an array of six photographs from which he identified defendant's photograph. Hearns then made an in-court identification of defendant. On cross-examination Hearns admitted that he had not noticed if the offender had a mustache.
Linda Boyd next testified for the State. She stated that she followed Hearns outside the barber shop as he went next door to investigate. She did not enter the dry cleaners. She saw defendant with a gun and identified defendant at trial.
Detective Robert Flood next testified for the State. Flood stated that on the evening of February 17, he conducted a lineup which Jones viewed. Jones identified defendant in the lineup.
Officer Darrel Akins next testified for the State. Akins averred that around 1:45 in the afternoon on the date in question he responded to a radio call indicating that there was a robbery in progress and proceeded to Reid's dry cleaners. At that location he spoke to Boyd and Jones, who gave a description of the offender and told him in what direction the offender had fled. Atkins and his partner subsequently apprehended defendant near the scene of the robbery.
Gerald Lawson (defendant) testified in his own defense. He denied being involved in the robbery at issue. He averred that at the time in question he was in a pool hall in the 6400 block of South Cottage Grove. He stated that he had a mustache in February of 1996 and that his facial hair is visible in the lineup photograph. On redirect he testified that after he left the pool hall he headed home on 69th Street and King Drive. On re-cross-examination the State asked, over defense objection, if defendant told Flood that he was on his way to the store when he was arrested and defendant averred that he never made such a statement. Defendant also denied telling Flood that he had witnesses whom he could not name who saw him at the pool hall at the time in question.
Defendant was subsequently convicted of armed robbery by a jury. He was sentenced to natural life in ...