Appeal from the Circuit Court of Du Page County. No. 00-CF-838 Honorable George J. Bakalis, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Following a bench trial, defendant, Angel Ramos, was found guilty of one count of aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 2000)) and two counts of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 2000)). After its finding of guilty, the trial court merged the two counts of aggravated discharge of a firearm into the one count of aggravated battery with a firearm and entered a conviction and sentenced defendant on the latter count alone. Defendant appeals, arguing that (1) the trial court erred in denying his pretrial motion to suppress the out-of-court identifications of defendant by witnesses Zacharias Carpenter and Michael Miller; (2) his trial counsel provided ineffective assistance of counsel by failing to introduce certain evidence at the suppression hearing; and (3) he was not proved guilty beyond a reasonable doubt of the crimes charged. The State argues for the first time in its appellee's brief that the trial court erred in merging the two counts of aggravated discharge of a firearm into the one count of aggravated battery with a firearm. We affirm.
At about 1:30 a.m. on April 7, 2000, Isaac Bailey, Zacharias Carpenter, and Michael Miller were riding in Miller's Buick Regal in Aurora when the passenger in a car that pulled alongside them fired several shots from a handgun into the Regal. Bailey, the driver, was shot in the shoulder. He and his companions contacted the police and gave descriptions of the assailant and the car, the Neon in which he was riding. Dispatch conveyed the descriptions to officers in the area. Several minutes later and several blocks from the scene of the shooting, a sheriff's deputy identified a Neon car that matched the description given by Bailey and the others. The officer pulled over the car, which contained two "Hispanics"--defendant and Jose Ramirez. Carpenter and Miller were conveyed to the scene, where they identified defendant as the shooter. Defendant was arrested.
Defendant filed a motion to suppress the out-of-court identifications made by Carpenter and Miller. At the suppression hearing, defendant called Aurora police officers Brian Pierce and Jeffrey Talley, who arrived at the scene shortly after the shooting.
[Nonpublishable material under Supreme Court Rule 23 removed here.]
Although the trial court analyzed the identification procedure as a showup, it observed that the procedure was not a showup per se because Miller and Carpenter were shown two suspects and asked to identify whether either was the assailant. After hearing the testimony, the court concluded that defendant failed to demonstrate that the showup was unnecessarily suggestive or conducive to irreparable misidentification.
Defendant subsequently filed a motion to quash arrest and suppress evidence, which the court denied following an evidentiary hearing. At trial, the parties stipulated to the admission of the testimony given by Kane County sheriff's deputy Brian Demeter at the hearing on defendant's motion to quash arrest and suppress evidence.
The parties stipulated to the admission of Officer Pierce's testimony from the hearing on the motion to suppress identification.
[Nonpublishable material under Supreme Court Rule 23 removed here.] After Carpenter, Miller, and Bailey testified, the parties then stipulated that police recovered three fired .32-caliber shell casings from the scene of the shooting and two spent .32-caliber bullets from the driver's door of the Regal. The parties further stipulated to Bailey's gunshot wound to the shoulder. The State introduced photographs of the Regal, which showed a shattered front driver's side window and two bullet holes in the front driver's side door.
The State then rested its case. The defense's case consisted of the following stipulated conversation between Miller and an Aurora police officer regarding Miller's identification of defendant:
"OFFICER: Now, I understand a short time after you guys were still there, the police ended up finding the car. What happens then?
MILLER: I guess they pulled him over and they brought us to the scene where they had them. They told us before we got there, can we--you know, what you call it, identify them, identify the car. We told them definitely we can do that, and so they took us there. We looked at the car. When we seen [sic] the car, we knew definitely that had to be them because that was the exact same car. Then I guess they took us around the corner and got the people out of the van that was there and, you know what I'm saying, one of them, I guess the one that shot, he had like a bandana. I guess he put it on after, you know what I'm saying? I don't know why, but he put it on because he didn't have it on when he shot. And I was like, you know what I'm saying, can he remove it, because he had short hair. If he removed the bandana, I would know if it was him or not. And he removed it and I was like yeah, it was definitely him.
OFFICER: So the guy took off the bandana when you saw him and you're 100 percent positive that is the guy that shot the gun?
MILLER: All I'm saying, I put it together. He had a yellow shirt. I thought it was white because it was dark, but that was him."
The court found defendant guilty on all three counts, noting that the "crux" of the case was the identifications of defendant by Carpenter and Miller. The court entered a conviction and sentenced defendant only on the one count of aggravated battery with a firearm, finding that the two counts of aggravated discharge of a firearm were merged into the aggravated battery conviction.
Defendant filed a motion and an amended motion for a new trial, arguing that (1) the trial court erred in declining to suppress Carpenter's and Miller's identifications because the evidence at the hearing showed that they were the result of "an unduly and unnecessarily suggestive 'show-up' conducive to a mistaken identification" and thus violated due process, (2) his trial counsel provided ineffective assistance of counsel by failing to introduce evidence at the hearing on the motion to suppress identification "that Defendant was wearing yellow and black clothing at the time [of his arrest], rather than yellow and white or light colored clothing as described by the alleged victims of the shooting," and (3) defendant was not proved guilty beyond a reasonable doubt of the crimes of aggravated discharge of a firearm and aggravated battery with a firearm.
At the hearing on the motion, the parties stipulated that defendant was wearing a black, long-sleeved shirt underneath a yellow T-shirt bearing a Tommy Hilfiger logo when he was arrested. Defendant testified at the hearing that he was wearing the black shirt when he was arrested and had worn it for several hours before the arrest. The trial court denied the motion for a new trial.
On appeal, defendant reiterates the arguments he brought in his motion for a new trial. He argues, first, that the trial court erred in denying his motion to suppress Miller's and Carpenter's showup identifications.
Illinois courts have long held that an immediate showup identification near the scene of the crime is proper police procedure. See, e.g., People v. Lippert, 89 Ill. 2d 171, 188 (1982); People v. McKinley, 69 Ill. 2d 145, 152 (1977); People v. Manion, 67 Ill. 2d 564, 570 (1977).
"Although one man show-ups are generally condemned, they have been consistently upheld when they are justified by the circumstances. One of the circumstances in which a show-up has been justified by the court is when it is necessary to facilitate a police search for the real offender, and the Supreme Court has consistently upheld prompt identification of a suspect by a witness or victim near the scene of the crime where they foster the desirable objectives of a fresh, accurate, identification, which may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing offender while the trail is still fresh." People v. Hicks, 134 Ill. App. 3d 1031, 1036 (1985).
The weight to be given identification evidence is presumptively a question for the trier of fact. People v. Moore, 266 Ill. App. 3d 791, 796 (1994). Only where a pretrial encounter resulting in an identification is "unnecessarily suggestive" or "impermissibly suggestive" so as to produce "a very substantial likelihood of irreparable misidentification" is evidence of that and any subsequent identifications excluded by operation of law under the due process clause of the fourteenth amendment. Moore, 266 Ill. App. 3d at 796-97, citing Neil v. Biggers, 409 U.S. 188, 196-97, 34 L. Ed. 2d 401, 409-10, 93 S. Ct. 375, 380-81 (1972).
The due process analysis has two steps. First, the defendant must prove that the confrontation was so unnecessarily suggestive and conducive to irreparable misidentification that he was denied due process of law. If the defendant meets this burden, the burden falls to the State to establish that the identification is independently reliable. Moore, 266 Ill. App. 3d at 797. The factors to be weighed in determining the independent reliability of the identification include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Moore, 266 Ill. App. ...