THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DENNIS BRYANT, Appellee
No. 55723
Supreme Court of Illinois
January 24, 1983
94 Ill. 2d 497
CLARK, J., took no part. GOLDENHERSH, J., dissenting.
Steven Clark, Deputy Defender, and Phillip J. Zisook, Assistant Appellate Defender, of the Office of State Appellate Defender, of Chicago, for appellee.
JUSTICE UNDERWOOD delivered the opinion of the court:
A Cook County jury convicted defendant, Dennis Bryant, on two counts of armed robbery for the holdup of an Evanston 7-Eleven store. He was sentenced to two concurrent 12-year terms of imprisonment. In the appellate court, the State agreed that defendant should only have been charged with one count of armed robbery. After finding erroneous an in-court identification of defendant and the introduction of a hearsay statement concerning his guilt, the appellate court reversed defendant‘s conviction on the remaining count. (100 Ill. App. 3d 17.) We granted the State‘s petition for leave to appeal.
On December 23, 1978, Harold and Norma Lederer were accosted inside the 7-Eleven store by a young black male who was armed with a pistol. The robber took small bills and loose change from the cash register and packets of bills wrapped in 7-Eleven cash register tape,
The Lederers quickly called the Evanston police, and Norma gave a detailed description of the robber. She told the police that he had worn blue pants, a blue jacket, a blue knit hat with a golden or orange tassel, and a piece of cloth covering part of his face. While responding to the call, Officer Glanz used a spotlight to view passengers in on-coming cars. Noting that the sole occupant of a Cadillac matched the description radioed to him, Officer Glanz attempted to stop that car. A chase ensued and, after numerous turns, the Cadillac entered an alley blocked by another car. The driver abandoned the Cadillac, which was later found to be registered to defendant. The driver also left behind his hat, a gun, two pieces of white cloth, and some loose money and rolls of change.
Officer Glanz lost sight of the driver, but was able to follow his footprints in the fresh snow. This trail led to the open door of a ground-level apartment. Upon entering the apartment, Officer Glanz found a black male using the telephone and took him into custody. This man was later identified as Early Patterson, the tenant of that apartment and a friend of defendant‘s aunt. Other officers arriving at the scene also entered the apartment and found defendant crouched down by a refrigerator. At the time of his arrest, defendant was wearing blue pants with wet cuffs and a blue jacket. In his pockets were bills wrapped in 7-Eleven register tape bearing Harold Lederer‘s initials.
Later in the day, Harold and Norma Lederer went to the station house and identified the hat, gun and money recovered by the police. In addition, Norma Lederer was shown an array of six photographs, consisting of 10 different mug shots of five individuals and one Polaroid photo of defendant, all of which were small color prints. The photo of defendant was a somewhat blurry frontal view. Norma Lederer told the police that defendant‘s photograph was that of the robber.
At trial, Norma and Harold Lederer identified the defendant as the gunman. Norma again described him, testifying that he had worn a hat pulled down to about one-half inch above his eyebrows and a piece of cloth which hung down loosely from the middle of the bridge of his nose to below his jaw. She testified that she was able to discern the structural features of the robber‘s face despite the mask because his face was outlined through the cloth as he moved.
After Officer Glanz testified, the prosecutor sought to call Early Patterson as a court‘s witness, claiming that he could not vouch for Patterson‘s veracity. Upon objection by defendant, the trial judge ruled that the State could call Patterson as a hostile witness and that the prosecutor would be allowed to impeach Patterson if necessary. After Patterson denied that defendant had told him of robbing the 7-Eleven store, the prosecutor sought to impeach him by introducing part of the written statement which Patterson had signed on the morning of the robbery:
“Q. Did you tell—strike the question. Was this question asked of you, Mr. Patterson, by Detective Haytow,
and did you give these answers: ‘Q. Mr. Patterson, will you tell me what you know of this armed robbery?’
‘A. Dennis Bryant came down in the basement. I went down behind him. I asked him what was wrong. He said the police had just taken his car. He said he just robbed a 711, I think that‘s what it was.‘”
The State again referred to the same portion of this statement while subsequently examining the officer to whom it had been given.
The appellate court found that the in-court identification evidence was improper because the photographic identification technique was both unnecessarily and impermissibly suggestive, and that there was no independent basis to establish reliability. We do not agree that the procedure itself was suggestive. Rather, we agree with the State that a Polaroid photograph does not connote recency. Furthermore, a different format does not automatically render a photo suggestive: it may make it more so or less so. Different need not be equated with suggestive. (See People v. Kubat (1983), 94 Ill. 2d 437.) In addition, there is nothing in the record to indicate that Norma Lederer knew that an arrest had been made at the time of the identification procedure or that the police in any way indicated which of the photos was defendant‘s.
More importantly, the evidence shows that Norma Lederer‘s out-of-court identification was reliable. This court has held that even identifications made under suggestive conditions are admissible if reliable. (People v. Manion (1977), 67 Ill. 2d 564, 571, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513, citing Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) When assessing reliability, this court has consistently examined the totality of the circumstances. (People v. McTush (1980), 81 Ill. 2d 513; People v. Manion (1977), 67 Ill. 2d 564; People v. Williams (1975), 60 Ill. 2d 1.) The factors considered include “the opportunity of the witness
The record indicates that these factors were adequately satisfied. Norma Lederer testified that she was able to directly observe the gunman for about five minutes at a distance of only a few feet in the brightly lighted store and that the mask failed to completely conceal his features. She retained her composure, and all of her attention remained focused on the robbery and the robber. Significantly, Norma Lederer was able to provide the police with a detailed description and immediately made a positive identification when presented with an array of photographs. Although she was unacquainted with defendant, the identification took place on the same day as the robbery.
Furthermore, as recognized by the Supreme Court, it is important to consider whether there was any pressure on the witness to make a certain identification. (Manson v. Brathwaite (1977), 432 U.S. 98, 116, 53 L. Ed. 2d 140, 155, 97 S. Ct. 2243, 2254.) This factor has also been articulated in some of our appellate court opinions. (See People v. Witted (1979), 79 Ill. App. 3d 156; People v. Hart (1973), 10 Ill. App. 3d 857; People v. Hudson (1972), 7 Ill. App. 3d 333.) There was in this case no such pressure, coercion or suggestion. Because we conclude that Norma Lederer‘s out-of-court identification was reliable, it follows that her in-court identification was properly admitted. (People v. Manion (1977), 67 Ill. 2d 564, 572, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513, citing Manson v. Brathwaite (1977), 432 U.S. 98, 110 n.10, 53 L. Ed. 2d 140, 151 n.10, 97 S. Ct. 2243, 2251 n.10.) Moreover, the same considerations which indicate that Norma Lederer‘s out-of-court identification was reliable lead us, of course, to conclude that her in-court identification rested upon an independent origin sufficient to establish separate reliability and was thus properly admitted. People v. McTush (1980), 81 Ill. 2d 513; People v. Williams (1975), 60 Ill. 2d 1.
The appellate court also found the photographic identification procedure impermissible because defendant was in custody at the time and the State failed to offer evidence of any extenuating circumstances. We note, however, that defendant failed at trial to object to the identification evidence on this basis. Consequently, that issue was not preserved for review. People v. Pastorino (1982), 91 Ill. 2d 178, 192; People v. Queen (1974), 56 Ill. 2d 560, 564.
The State contends that the introduction of part of Early Patterson‘s written statement, if improper, was harmless error. This court has repeatedly disapproved prosecutorial efforts to impart substantive character to prior inconsistent statements under the guise of impeachment. (People v. Bailey (1975), 60 Ill. 2d 37, 43; see also People v. Gant (1974), 58 Ill. 2d 178; People v. Powell (1973), 53 Ill. 2d 465; People v. Collins (1971), 49 Ill. 2d 179.) Moreover, statements made outside the defendant‘s presence which relate his confession of guilt or innocence are not competent evidence even for impeachment purposes if likely to prejudice the jury. (People v. McKee (1968), 39 Ill. 2d 265, 271; People v. Tunstall (1959), 17 Ill. 2d 160.) It was, therefore, erroneous to allow the introduction of Patterson‘s statement.
Nevertheless, we believe that admitting that evidence constituted harmless error. At the time of his arrest, defendant was hiding from the police and some of the pro-
Although not addressed by the appellate court, defendant contends that he was denied a fair trial because of certain prosecutorial remarks during closing argument. These remarks touched upon the State‘s burden of proof, the credibility of the witnesses, the need for strong administration of the criminal law, and the fact that the State‘s evidence was “uncontradicted.” While we have always emphasized that prosecutors may not engage in inflammatory and unfounded closing arguments (see, e.g., People v. Whitlow (1982), 89 Ill. 2d 322), “[e]ach case of this kind must be decided upon its own facts” (People v. Weathers (1975), 62 Ill. 2d 114, 120). We do not agree that the prosecutor‘s characterization of the State‘s burden as one which is “not unreasonable” and “met each and every day in courts” reduced that burden. Furthermore, this court has consistently held that a prosecutor‘s closing argument may
Defendant, raising the issue for the first time, contends that his trial was unfair because the trial judge‘s denial of a motion to suppress his prior conviction precluded defendant from taking the stand. Recognizing the applicability of the waiver doctrine, defendant urges us to characterize the ruling as plain error (
The judgment of the appellate court is accordingly reversed, and the judgment of the circuit court of Cook County is affirmed.
Appellate court reversed; circuit court affirmed.
JUSTICE CLARK took no part in the consideration or decision of this case.
JUSTICE GOLDENHERSH, dissenting:
I dissent and would affirm the judgment of the appellate court. I agree with the appellate court that the photographic identification employed in this case was impermissibly and unnecessarily suggestive.
The majority states: “More importantly, the evidence shows that Norma Lederer‘s out-of-court identification was reliable.” (94 Ill. 2d at 520.) Considering that when she made the identification she had already been shown the clothing taken from defendant, that she was shown a Polaroid photograph, and admittedly the mask worn by the robber to a great extent covered his features, this is, at best, a questionable conclusion.
I do not agree with the majority that the introduction of Patterson‘s statement into evidence was harmless error. The appellate court, in its well-reasoned opinion, has clearly demonstrated that the admission of the testimony was highly prejudicial and not harmless. (See 100 Ill. App. 3d 17, 22-26.) It should be further noted, as pointed out by the appellate court, that the State‘s Attorney exacerbated the error by making repeated references to Patterson‘s statement in closing argument.
I agree that there was overwhelming evidence of