People v. Jackson
277 N.E.2d 900
Ill. App. Ct.
1972
Check Treatment

*1 Illinois, of the State of v. Eddie Plaintiff-Appellee, Jackson, Defendant-Appellant. 70-163;

(No. Third January 1972. District STOUDER, dissenting. J., Barton, Ottawa, for L. appellant.

John Lennon, People. for the Arthur Attorney, Joliet, Assistant State’s *2 the court: Mr. of DIXON delivered the opinion JUSTICE was robbery, armed The for Eddie was indicted Jackson, to ten found a of five guilty the sentence trial and was judge, years. guilty

The defendant he was not proved has that contending appealed, beyond a and was excessive reasonable doubt and that his sentence un- improper. It is his that was position the identification been necessarily have suggestive, that his should not alibi testimony discounted, than and that the minimum should not be more sentence one-third of the maximum.

The armed robbery from which this took developed case 11:30 P.M. on the was about to close February 1969. The victim gasoline station through where he was came when working Negroes three the door. The a victim turned and first man as he looked at the of couple steps toward The the victim and him with a club. then struck was victim then into shoved face down bathroom and forced he floor, and he did not see the their men before again departure. The next night station, the victim went to a gave description the police of his assailant and used, the club that had through been looked more than a failed, however, hundred photographs. identify He of the defendant. It hair, showed the defendant short victim’s impression of his straight- assailant’s hair that it was long, was ened, and greasy in appearance. a on the nights gas

Ten later detective called victim at police station, nightstick, showed him a and asked if it were similar one in used The that it The detective robbery. victim answered was. station, then went back to the took black-and-white police photographs custody, of the defendant and whom in Negro, another both of and returned with other- these two of two photographs persons. defendant, he said snapshot

When victim was shown him, but couldn’t be posi- the man who robbed that he believed a color that in thought from the photograph tive black-and-white up better. The detective the man’s would show complexion photograph station, took another the defendant then back to the went film, with the color colored and returned to the victim photograph. using 576 him to view man, like and he would that was the

The said that in person. identified the was held. The victim promptly

Five days lineup defendant was represented The defendant five group persons. counsel. Other evidence again.

At the trial the victim identified had recovered the defendant was the which the nightstick similar to the said it was from the defendant’s The victim apartment. had it with his left swung the assailant one used in the and that robbery, was left-handed. The defendant admitted that he hand. that on the night witnesses testified and four other defendant

The trailer house from room his father’s was in the living he the robbery wife, were the defendant’s A.M. The other witnesses until 1:30 P.M. mother, and an acquaintance. his stepfather, his and the on the evidence of commenting guilt trial after judge, his that the identification was belief stating identification procedure defendant as cautious, correct, charged. found the guilty proper, 142, this N.E.2d Brown Recently, (Ill.App. 1971), initial and subsequent court held that identification from photographs suggestive pro identification did not constitute impermissibly line-up case and cases cited therein reasoning We believe of that cedure. *3 to We identification be here. do not consider applicable photographic States, 377, v. do not find Simmons United proscribed by be case. error in the identification followed in procedure present Brown, v. that there noted in (as People supra) our It is opinion the alibi testimony presented. error reason of herein by was no reversible this evi weight given to determine to be for the trial judge It was witness convict dence, may of a be sufficient to testimony single and the v. 129 Bracey, Ill.App. alibi witnesses. (People contradicted although Furthermore, in rather substantial errors height weight 2d 57.) held not to affect the have been estimates originally v. identification. Calhoun (People of an credibility eye-witness (Ill.App. that the was in justified 270 N.E.2d 450. We conclude trial 1971), judge beyond reasonable doubt. guilty finding As to the sentence we would also affirm. In imposed, imposing trial obligation sentence the court has as well as to the public found of a crime. Thus in person sentencing, court must con guilty sider the warranted under the circumstances of the punishment particular case, and for rehabilitation of protection public, potential sentenced. circumstances the case include the party being circumstances, offense, the attending nature of the the character

577 rehabilitation, People and all other matters. propensities pertinent Buell, 120 367. Ill.App.2d had

At the in the trial court before hearing aggravation mitigation, it a rather and we believe résumé and of the defendant complete history Buell. properly in applied standards set forth People Judgment affirmed.

ALLOY, concurs. J.,P.

Mr. STOUDER dissenting: JUSTICE

I do not agree with the that the extra- of the court. I believe majority judicial identification process unduly considered as a whole sugges- was tive, irreparably prejudicial and not warranted any practical impera- tive. States,

I believe that the rules laid down in Simmons v. United 390 377, 1247, U.S. 88 Court L.Ed.2d Supreme are applicable have been reaffirmed by the Illinois in v. Holiday, Court Supreme 47 Ill.2d also, 256 N.E.2d 634. (See Colo. Law “In the Rev. Wake of Wade: The Dimensions the Eyewitness Identification Cases” by Joseph Simmons, R. Quinn.) said, the U.S. Court supra, Supreme “* * # we hold facts, that each case must be considered on its own and that convictions based on eyewitness at identification trial following a pretrial identification by will be set aside on that ground if the only was so impermissibly as suggestive to give rise to a substantial likelihood very irreparable misidentification.” In apply standard to the in facts the Simmons case, supra, the court concluded other among that the defendants things, not the time the were shown photographs question to the witnesses and the circumstances of the case showed there was little chance for misidentification because the in the robbery afternoon in a well lighted bank, bank employees five had been able to robber, see the Simmons, identified as for periods ranging up to five minutes and the witnesses were shown the from which they made their identification one only after robbery. Under day these facts and circumstances the court held there was not a sub- stantial likelihood for misidentification. The aforesaid standard *4 approved by the Illinois case, Court in Supreme the Holiday In supra. this case the court held that the photographic identification procedure ought not to be employed when the is in suspect and a custody lineup is otherwise feasible. In the reversing conviction the Illinois Supreme Court found that the to opportunity observe the was limited defendant the witness. the of glance part due to a lighting only quick poor further three alibi witnesses were They concluded that the defendant’s held, be afforded comt “Defendant must virtually The unimpeached. a trial if is found to new the of either witness have been testimony inadmissible, since either the erroneous admission of witness’s testimony must defendant only be deemed when the evidence prejudicial was their and defendant otherwise testimony, presented alibi three substantially based witnesses.” unimpeached upon far of in a degree required So as burden the proof 427 Fed.2d identification case is concerned I on U.S. Zeiler rely (1970), 1305, 3rd Circuit Court of which Appeals, quotes approval, 1149, Wade, rule in U.S. Ed.2d enunciated 18 L. to the burden on the government Court which Supreme places that the were not prove clear evidence witnesses convincing influenced confrontations. In the case by prior improper photographic bar, at a no station took late at There was gasoline robbery night. testimony conditions which existed at that time. lighting concerning seconds, most, The victim had a few his attacker before only observe he was struck with a club and the victim night next incapacitated. more observed than one hundred one of which was that of photographs, nights but was unable to make an identification. Ten a a detective showed the victim club and in response the victim stated that the club was similar to the one used questions him. the defendant and another into person Meanwhile taken upon took new custody. subsequently The detective black white photo- two men in took these with shots two graphs mug other men to the victim. The victim these upon observing stated he believed the defendant was man who robbed him but sure from the black and could not be white The detective photographs. station and then went back to the took color photograph the de- He with the' color stated, fendant. returned victim who to view “this to belief is the who robbed me but I would like my person A fine held and at that time the subsequently up him person.” him. At the trial identified the defendant as the man who robbed victim witnesses, defendant four other two who were employees Commission, Youth offered unimpeached Illinois testimony had never left the room of his father’s trailer home living defendant the hours in which the The club shown to the during place. robbery defendant’s and his apartment was found in the wife seemed to victim its there. It was one of satisfactorily evidently explain presence that it variety. case the could state seemed military any only similar. *5 standards

I do not stand in of the light believe this conviction should Simmons, initial set forth Subsequent supra Holiday, supra. identification was identification in which no photographic made and to the second prior photographic Thereafter, was taken into a line should have custody. up it is clear that been held third identifi- immediately in lieu of a second or photographic cation There for the to have procedure. was little opportunity observed his attacker and the State no that there evidence presented enough light available to make if the victim ample an observation even would have had longer There corrob- opportunity observe. was no orative evidence. There was at least an eleven day time between lapse the date of the crime and the date that the final identifica- photographic tion was made. By the victim showing the two black and white photo- with graphs along the two shots and mug finally the color photograph itself it seems likely that the victim knew that the two men in the black and white the one in the finally man color photo- graph were' in the police one or both them of suspected being guilty the crime. It was a certainly procedure which was unfair unduly prejudicial defendant. light testimony, the military club offered into evidence State' had little value and probative finally the alibi testi- unimpeached of four witnesses in mony defendant, addition to the certainly must be strongest consideration judicial when weighed uncorroborated identification based improper identi- fication procedure. majority relies heavily on Brown People (1971), 267 N.E.2d (Ill.App.2d), 142 (Petition for Leave to Appeal When court decided granted). the Brown case the decision in the case, Holiday had not as supra, yet be published we were unaware of its existence. I believe that if this court had considered the Holiday case while it was the Brown considering case there would have been a different result in Brown. Further states, the majority in Brown opinion “an alibi anis affirmative defense and where the delecti is corpus proved, together with the evidence to show the tending guilt the burden of establishing the alibi rests upon him although upon must guilt whole case his be proved beyond reasonable An doubt.” is alibi not and should not be treated as an affirmative defense. The sug- gestion that the defendant labors under some kind of burden refer- is ence to an alibi both Bennett, misleading prejudicial. (Johnson 21 L.Ed.2d 89 S.Ct. Therefore 436.) I would reverse conviction this case.