People v. Del Genio

• Citation: 10 Ill.App.3d 437,294 N.E.2d 78
• Decision Date: 15 February 1973
• Docket Number: No. 71--354,71--354
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony G. DEL GENIO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 78

294 N.E.2d 78

10 Ill.App.3d 437

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony G. DEL GENIO, Defendant-Appellant.

No. 71--354.

Appellate Court of Illinois, Second District.

Feb. 15, 1973.

Rehearing Denied April 10, 1973.

Ralph Ruebner, Ill. Defender Project, Elgin, for defendant-appellant.

Philip G. Reinhard, State's Atty., Rockford, for plaintiff-appellee.

GUILD, Presiding Justice.

The defendant, Anthony G. Del Genio, was indicted for armed robbery in which approximately $14,000 was taken on the evening of July 30, 1969. Defendant was found guilty in a jury trial and sentenced to 6--18 years in the penitentiary.

On appeal, defendant contends that the in-court identification of defendant was based upon a suggestive pre-trial identification; that he was not proven guilty beyond a reasonable doubt, and that the prosecutor's closing argument contained prejudicial remarks constituting reversible error.

On the evening of July 30, 1961, two men went into the Pacemaker store in Rockford, Illinois. One was disguised in a red wig and wax mask. The other was not disguised. The disguised robber carried a brief case and went to the office where the manager opened the safe containing $13,000--$14,000 and the robber filled his brief case with the money. Six months after the robbery, Detective Francis of the Rockford police transported eyewitnesses, the cashier, Paula Dal Pra Corcoran, the store manager, Jerome Sullivan, and Shirley Scott, an employee of the store, to the Boone County jail at Belvidere to view two men believed to be the robbers of the Pacemaker store. When they arrived at Belvidere the Sheriff of Boone County asked the defendant to come out for a telephone call in the company of other prisoners. One Hollis Pruitt came out of the jail cell first and when he realized it was a surprise showup he shouted a warning back into the cell area to defendant, whereupon defendant refused to appear. Defendant never did appear and Detective Francis then showed the witnesses three photographs he had obtained from the Boone County sheriff. One photograph was of the first prisoner Pruitt, another was of the defendant, and a third picture was of a police lineup of four or five individuals, including the defendant. The witnesses Corcoran and Scott selected the defendant's picture as the undisguised robber. Store manager Sullivan was unable to identify defendant; he merely stated the picture looked more like the robber than anyone he had ever seen before.

On February 25, 1970, two weeks after the unsuccessful showup, the three eyewitnesses separately identified the defendant in a formal lineup in the Winnebago County jail. Two other witnesses, who did not have direct contact with the defendant, were unable to identify him.

Prior to trial two separate hearings were had on defendant's motion to suppress identification of the defendant. On January 6, 1971, the Public Defender conducted an extensive hearing on this motion. A motion for the substitution of private counsel for defendant was allowed and on February 17, 1971, before another Judge, once again an extensive hearing was had to suppress identification of the defendant. In both instances, the motions to suppress were denied.

At the trial, witnesses Corcoran, Scott and Sullivan, made an in-court formal identification of defendant. The cashier, Corcoran, definitely identified the defendant, testifying she had a face to face and side view of him under the store's fluorescent lights at a distance of a few feet for about a half a minute. She described his clothing, that he had a mustache, insisted he was not wearing glasses, and that she made a special effort to observe his features and clothing. Witness Shirley Scott testified she observed the undisguised defendant face to face at a distance of two and one-half to three feet for a matter of seconds. She recalled that when showed a photograph of defendant and others that she identified him. She described his physical appearance and the fact he did not wear glasses or have a mustache. The manager, Sullivan, testified he observed defendant from a distance of 6--10 feet. While he could not identify defendant prior to the lineup, he positively identified him in the lineup.

Detective Francis testified that it appeared between the time of trial and the showup at Belvidere, that the defendant had lost approximately sixty pounds. Two witnesses, who had not had a good view of defendant, indicated to the police artist who made a 'composite' drawing of the robbers, that defendant and the other robber were wearing eyeglasses, and the official police description of the robber did include eyeglasses and a mustache.

The defendant asserts the trial court was in error when it denied his motions to suppress the identification testimony against him. Defendant contends the in-court identifications were based entirely upon a pre-trial lineup procedure which was the fruit of a highly suggestive and tainted identification confrontation and photographic exhibition held six months after the armed robbery. He further contends the in-court identification did not have its origin independent and uninfluenced by the tainted pre-trial lineup and photographic confrontations held prior to the in-court identification of himself. He claims, therefore, the in-court identification violates his right to due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. In support of his contention he has cited Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

In further support of his contention he has cited People v. Lee (1970), 44 Ill.2d 161, 169, 254 N.E.2d 469, 473, which states in approval of Stovall v. Denno:

'The test is whether the identification procedures were 'unnecessarily' suggestive and the methods used must be examined in light of the circumstances in each case.'

With this, we agree. (See also, People v. Tuttle (1972), 3 Ill.App.3d 326, 278 N.E.2d 458.) In Lee the court found that the testimony of one witness in question was conflicting and inconclusive and the incourt identification by the other witness was 'weak at best'. That is not the factual situation in the case before us.

Defendant has further cited People v. Fox (1971), 48 Ill.2d 239, 246, 269 N.E.2d 720, 725, in which the court stated:

'In our case the record indicates that the three witnesses had adequate opportunity to observe the defendant during the course of the argument on the evening of January 1, 1968.'

The court then went on to hold that the pre-trial confrontation was not necessarily suggestive. We find that to be the situation in the instant case.

In People v. Rodgers (1972), 53 Ill.2d 207, 290 N.E.2d 251, the Supreme Court held that identification of the accused two years after the crime did not deny due process where identification was based upon an origin independent of the photographic identification including an excellent opportunity to observe the defendant at the time of the crime.

Defendant also cites Simmons v. United States (1967), 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1252--1253. In Simmons the court held that each case must be considered on its own facts, and that a conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' With this, we agree.

In this case the pretrial identification was preceded by a situation in which the cashier Corcoran was able to describe defendant to the police immediately after the robbery and was able to pick out his picture as the one that looked like the man and to use as an example another picture to illustrate his physical stature. The witnesses herein had ample opportunity to observe the defendant. In People v. Brown (1972), 52 Ill.2d 94, 99, 100, 285 N.E.2d 1, 5, 6, the court held:

'. . . The practice of showing photographs of suspects to witnesses is essential to effective law enforcement. The dangers inherent in the practice have been recognized by the United States Supreme Court, but nevertheless, initial identification by photograph has its approval. The Court has held that each case must be considered on its own facts, and that convictions based on in-court identifications following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Citation)'

'. . . Circumstances may necessitate such procedure, and to prohibit it may very well hamper effective law enforcement.'

'The prosecutrix had a good opportunity to observe the defendant. She gave a description of him and the clothing he wore which was sufficiently detailed to enable the police to locate and arrest him within 24 hours. She made an identification from a photograph, identified him in a lineup, and later at the trial . . . We cannot say that the identification of the defendant was so doubtful, vague or uncertain that it produced a conviction which must be reversed. (Citation)'

Photographs were used as a means of identification by two of the three witnesses after defendant refused to appear at the Boone County showup, and was identified by all three eyewitnesses at a formal lineup at a later date. We do not find that under these circumstances any of the defendant's constitutional rights were violated in this respect.

Defendant also complains that the fact that the Rockford detective took the three eyewitnesses to Belvidere to view a suspect was highly suggestive. This situation must necessarily arise when a victim is called to the station house to identify a suspect or when he is taken to the jail to identify a suspect. The...