People v. Blumenshine

• Decision Date: 28 May 1969
• Docket Number: No. 41621,41621
• Citation: 42 Ill.2d 508,250 N.E.2d 152
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Willmer BLUMENSHINE, Appellant.
• Court: Illinois Supreme Court

Page 152

250 N.E.2d 152

42 Ill.2d 508

The PEOPLE of the State of Illinois, Appellee, v. Willmer BLUMENSHINE, Appellant.

No. 41621.

Supreme Court of Illinois.

May 28, 1969.

Seth M. Dabney, Peoria, appointed by the court, for appellant.

George R. Kennedy, State's Atty., Peoria, for the People (Jay H. Janssen, Asst. State's Atty., of counsel).

WARD, Justice.

The appellant, Willmer Blumenshine, was convicted of armed robbery following a jury trial in the circuit court of Peoria County and sentenced to the penitentiary for a term of 10 to 15 years. The Appellate Court for the Third District affirmed the conviction (96 Ill.App.2d 352, 239 N.E.2d 294), and we granted the appellant leave to appeal. The principal question presented is whether the method of pretrial identification employed by the police was legally objectionable. If it was, what are to be the consequences?

On November 29, 1965, at about 10:15 P.M., Carole Griffith and Joan McClintick, who were sisters, and Donna Piper were laundering clothes at the Swiss Maid Laundromat in Peoria. Jerry, the 16-year-old son of Donna Piper; had accompanied his mother to the laundromat. Two young men, one with a silk stocking pulled over his face, entered, and the hooded one, brandishing a gun, seized the purse of Joan McClintick and the billfold of Jerry Piper, both of whom and Mrs. Piper were at one end of the laundromat. The second robber, later identified as the appellant, had taken a position and stayed at a door at the other end of the room. This robber, who was also armed, then began to struggle with Carole Griffith for her purse. When the hooded robber came and pointed his gun at her head, Mrs. Griffith released the purse and the robbers fled.

On December 17, 1965, at 8:45 P.M., the appellant, who was then 19 years of age, and a younger companion, Kenny Willis, were arrested in the Union Bus Depot in Peoria on a bus which was about to leave for Arkansas. It appears that the appellant and Willis were suspected by police of the armed robbery of a tavern. At the stationhouse that night, the appellant was questioned by the police concerning his whereabouts on the night of the 29th and he replied that he had been in the company of some girls.

The following afternoon, the four victims of the robbery at the laundromat were brought to a Peoria police station to view Willis and the appellant. The sisters, Carole Griffith and Joan McClintick, were asked to observe the appellant and state whether he was one of the men who had robbed them. Witnesses to other crimes of which the appellant and Willis were suspected also attended the viewing with the sisters. In the procedure employed the appellant was first shown alone in a room through a one-way mirror. Then Willis, who was separately prosecuted and sentenced for the robbery as a juvenile, was shown alone, and, finally, the two suspects were presented together. It is not clear at what point in the showing the appellant and Willis were identified, but Mrs. Griffith and Mrs. McClintick each did identify the youths as the robbers concerned. The record does not disclose whether the witnesses to the other crimes made identifications of the appellant or Willis. Donna Piper and Jerry Piper were told by the police that suspects were in custody and they were asked to view them. The Pipers also viewed the appellant and Willis through the one-way mirror and identified them as the robbers.

At the appellant's trial, held in March, 1966, each of the four witnesses identified the appellant as one of the men who committed the crime. All four witnesses also testified that they had identified the appellant at the identification proceedings conducted in the police station. Apart from this testimony of identification, no substantial evidence was presented by the State to connect the appellant with the offense. The appellant and his mother testified that he had been at home the entire evening of November 29, 1965.

The appellant contends that the circumstances under which the appellant was viewed at the police station by the witnesses were strongly suggestive and 'conducive to irreparable mistaken identification' and that no real necessity existed for the procedures used. Citing Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, he argues that the admission of the witnesses' identification testimony at trial therefore deprived him of due process of law.

As the appellant observes, the appellate court, while affirming his conviction stated that the pretrial identification process used here was 'highly suggestive and conducted in a manner deserving of strong condemnation' and that it did not approve such a procedure. However, because of cited decisions of this court, it stated that it felt obliged to hold that the manner in which the identification viewings were conducted affected only the credibility, and not the admissibility, of the identification testimony. It must be observed, though, that in People v. Nelson, 40 Ill.2d 146, 238 N.E.2d 378, this court observed that the United States Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, recognized that where 'a pretrial identification proceeding occurred on or before June 12, 1967 (the effective date of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178), a defendant, who was without counsel, is free to establish, based on the totality of the surrounding circumstances, that the viewing of the accused was so wanting in fairness as to deprive him of due process of law. We believe that Stovall requires that a defendant so claiming must prove that 'the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' 388 U.S. at 301--302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206.' (40 Ill.2d at 150, 238 N.E.2d at 381.) If an accused can support this claim the evidence of identification is rendered inadmissible and not simply affected as to credibility. (See Gilbert v. California, 388 U.S. 263, 272--273, 87 S.Ct. 1951, 18 L.Ed.2d 1178, 1186--1187; Stovall v. Denno, 388 U.S. 293, 299--300, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1205; People v. Caruso, 68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336, 341, Note 3.) Prior decisions of this court, to the extent they are contrary, are to be considered as having been overruled.

A showing by police of a suspect standing alone, in what is often described as a 'show-up,' has been observed to carry with it a dangerous degree of improper suggestion. (See People v. Gardner, 35 Ill.2d 564, 572, 221 N.E.2d 232; Biggers v. Tennessee, 390 U.S. 404, 407, 408, 88 S.Ct. 979, 19 L.Ed.2d 1267, 1269, 1270 (dissenting opinion); Wright v. United States (D.C.Cir.), 404 F.2d 1256, 1259--1260; Crume v. Beto (5th Cir.), 383 F.2d 36, 39; Wall, Eye-Witness Identification in Criminal Cases (1966), pp. 27--29.) Too, it can be said that where, as here, there is a showing of a suspected accomplice after viewing of the first suspect, either alone or together with the first suspect, the danger of suggestion, by association, is increased. In Stovall, the Supreme Court stated that 'The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.' (388 U.S. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206.) Of course, not every viewing of a suspect or suspects alone will be considered a denial of due process, for there may be justifying or saving circumstances. See, e.g., identifications upheld in: (1) Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, where the viewing in a hospital was 'imperative.,' it being uncertain that the wounded victim would survive; (2) People v. Speck, 41 Ill.2d 177, 193, 242 N.E.2d 208 where a principal factor was that it was apparent that the identifying witness had an excellent opportunity to observe the defendant at the time of the crimes; (3) People v. Robinson, Ill., 247 N.E.2d 898, where the person identified was known to the witness prior to the crime; (4) People v. Bey, Ill., 246 N.E.2d 287, where uncommon distinguishing characteristics were the principal means of identification.

But here we find the suggestive procedures for identification used cannot be defended. The appellant was viewed alone and then in the company of the suspected accomplice. No reason is offered why the appellant did not appear in a lineup for viewing by the witnesses to the robbery, which had been committed three weeks before the appellant's arrest. No circumstances can be found to justify the showing which was conducted. Also, to parenthesize, it is not shown that the witnesses to other crimes, who were present...