delivered the opinion of the court.
The indictment charges defendant with robbery (Count I) and aggravated battery (Count II).
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Ill Rev Stats
The evidence relating to the occurrence of the crimes is not in dispute. On May 24, 1963 Mabel Gaskell was walking on North Shore Avenue at about 5:45 a. m. on her way to work. It was daylight. A man walking in the opposite direction on the same sidewalk was approaching her. As he passed he grabbed her across the mouth with his left hand and threw her to the ground. He said, “If you scream, I’ll kill you.” Mrs. Gaskell was on her back on the sidewalk in a position to see the man, and did watch him as he bent over her in working with his right hand to free her purse from her arm. The shoulder-type purse contained money, cigarettes, keys, etc. The man managed to get possession of her shoulder bag, stomped on her face, and ran away. She screamed for help.
Ben Levitsky heard the scream as he was sitting at breakfast in his kitchen. He went to the back porch of his second-floor apartment. There he saw a man run through a gangway to the alley. He stopped at the gate, looked up the alley in both directions and, while doing so, stuffed something under his jacket. Then he ran across the alley and through another gangway where he got into the driver’s seat of a blue car and drove away.
The police were called and they and Levitsky arrived at the scene within a few minutes. Mrs. Gaskell related
At 6:45 a. m. defendant was arrested in his 1954 blue Chevrolet. He was searched, and $47 was found on his person. He had a red smear on the palm of his left hand. Later that morning, in a lineup of three men, Mrs. Gaskell identified defendant as her robber. She made a similar positive identification at the trial. Defendant did not take the stand, but his wife testified that he left home that morning at about 5:30 a. m. After judgment of guilty, at a presentence hearing on matters in mitigation and aggravation, it was disclosed that defendant had five previous felony convictions.
As will be explained later in this opinion, the only essential point to be considered is defendant’s argument that the proof of defendant’s identification as the robber was not established beyond a reasonable doubt.
Levitsky testified that he saw the running man only from the back and did not see his face. He described his hair as black, straight, long and slick.
Mrs. Gaskell testified that at the scene of the crime she told officer Walsh that her robber had “black, straight, long hair.” She also testified that his hair was long when she saw him in the lineup. However, when she was shown a police picture of defendant, taken at the station after his arrest but before the lineup, she said it showed him to have shorter hair than on the two occasions when she had seen him that day. She also said that in the picture defendant’s hair was “combed different”; that at the time of the robbery “it was up in á pompadour and a heavy bush.”
Officer Walsh testified that at the scene Mrs. Gaskell had told him that her assailant had “sort of an odd accent, other than Chicago.” He said further, “We couldn’t pin down what type it was.” He, therefore, noted in his
Further on the matter of identification, both Levitsky and Mrs. Gaskell had given to the police descriptions of the robber’s clothing (light jacket, dark trousers) which accurately described the clothes defendant was wearing when arrested. The description given to the police also included: height, 5' 8"; age, 19 to 25 years; weight, 145 pounds; automobile, old and blue. As to each of these matters the description was also borne out in fact.
Evidence was also introduced by State witnesses to show that three samples of the red smear taken from defendant’s left palm and one from Mrs. Gaskell’s lipstick were tested in the Police Department Crime Laboratory. The State’s expert witness testified without objection that in his opinion all four samples were lipstick, and that they were all similar in physical properties and in color.
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On cross-examination the witness conceded that the physical appearance, waxy nature, and brilliant color (produced by eosin dyes) of the substances could have been present in materials other than lipstick. He
An interesting parallel may be found in the minimum of specificity required in the admissibility of testimony identifying a gun as the one used in a robbery. For example, in People v. Pittman, 28 Ill2d 100, 103,
The complaining witness testified that the gun offered in evidence looked like the “silvery object” which one of the robbers pointed at him and one of the arresting officers identified the gun as the one he picked up at the time defendants were arrested. This was sufficient to connect the gun with the defendants and with the crime and to make it admissible in evidence.
It should be remembered that all the items which we have discussed in regard to identification are matters which are collateral to the fact of Mrs. Gaskell’s positive identification of defendant. Most of these matters were in corroboration; her description of his hair was not. But it is contrary to human experience to make an identification by noticing first the separate features, hair, or clothes of a person, and then, somehow, running off a total to determine recognition or non-recognition. Ordinarily all features are viewed at once and the recognition made instantaneously or not at all. This is one of the reasons why minor discrepancies in identification do not require reversal. People v. Boney, 28 Ill2d 505, 509,
She may be uncertain as to his voice and uncertain as to the look of his hair but there still would be no uncertainty about her identification. I heard the entire record and I went into it very carefully, and I think there is no doubt at all but what this man was properly identified. An accused is entitled to a fair trial, which includes competent representation. This does not mean, however, an accused is denied competent counsel because his court appointed counsel chooses a course of action which in retrospect proves to be less desirable than an alternate, nor even because he errs. Incompetency of counsel such as to constitute denial of an accused’s right to counsel is conduct of such defective character as to make the defense a farce (People v. Reeves, 412 Ill 555); substantial prejudice must be visited on defendant because of the alleged errors of court-appointed counsel. (People v. Morris, 3 Ull2d 437).
We cannot say that the State’s proof was so unsatisfactory as to justify a reasonable doubt of guilt or to require a reversal of the trial court’s conclusion. People v. Means, 27 Ill2d 11, 17, 18,
Defendant’s second ground for reversal is that the court admitted incompetent testimony of the State’s chemist who testified as an expert in regard to the lipstick smear. There are two answers to this contention, both valid in our opinion.
First, the point was not made in defendant’s written motion for a new trial filed in the trial court. It was thus waived and is not available to defendant upon review. People v. Irwin, 32 Ill2d 441, 443, 444,
We do not believe that defendant was prejudiced at all by the waiver of this point, nor do we believe that it is a plain error which can be reviewed without preservation in the record. People v. Fleming, 54 Ill App2d 457, 460-462,
Secondly, we have examined the record on this point, anyway, and find that the State’s expert witness was competent to testify as he did. As to whether his qualifications and opinions should be considered as outweighed by those of defendant’s expert witness, those are matters left to the trier of facts.
Finally, defendant contends that the court erred in not granting him discovery as to certain grand jury testimony and a copy of a police teletype message allegedly broadcast over the radio as the basis on which defendant was arrested.
The reason given to the judge for wanting to see the grand.jury testimony of Mrs. Gaskell was to impeach her in regard to her description of her assailant’s hair and voice. By questioning on an offer of proof, however, the witness testified that she had not told the grand jury anything about the man’s voice, and that she had
As to the teletype message, the State’s Attorney informed the court that, in response to defendant’s subpoena duces tecum, the police had made a search and found “there was no teletype message sent on this case.” Whereupon defendant’s attorney said, “All right. Thank you very much.”
Under the circumstances, it is our conclusion that defendant was not prejudiced in either of these instances, and that the court, in fact, did not commit error in regard thereto. Furthermore, neither contention was mentioned in the written motion for new trial.
The judgment and sentence of the Criminal Court are affirmed.
Affirmed.
Notes
Trial court indictment number 63-1578. The record includes a notice of motion for the furnishing of free transcripts of proceedings in indictments 63-1578, 63-1579 and 63-1580. We are without further information as to the latter two indictments, however, and only the first mentioned is involved in this appeal.
Objection was made that there was a mixup between the two State’s witnesses (the one who took the samples and the one who made the tests) as to which of two samples taken from defendant had been on a dry swab and which on an alcohol swab. Since the test results were the same as to both, we consider this objection to have been inconsequential.