People v. Grady

• Decision Date: 09 July 1982
• Docket Number: No. 81-33,81-33
• Citation: 438 N.E.2d 608,63 Ill.Dec. 677,107 Ill.App.3d 970
• Parties: , 63 Ill.Dec. 677 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rodger N. GRADY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 608

438 N.E.2d 608

107 Ill.App.3d 970, 63 Ill.Dec. 677

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rodger N. GRADY, Defendant-Appellant.

No. 81-33.

Appellate Court of Illinois First District, Fifth Division.

July 9, 1982.

Ralph Ruebner, Deputy State Appellate Defender, Chicago (David L. Lee, Winston & Strawn, Chicago, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat, Casimir J. Bartnik and Thomas A. Rieck, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

MEJDA, Justice:

Defendant was charged with murder, armed violence, attempted murder and aggravated battery, tried before a jury and found guilty of all counts. He was sentenced to an extended term of 50 years for murder and to 20 years for aggravated battery to be served concurrently. Defendant appeals.

The issues raised on appeal are: (1) whether the trial court should have suppressed the lineup identifications because the lineup was suggestive; (2) whether the trial court improperly prevented the defense from cross-examining a prosecution witness as to a battery charge which had been stricken with leave to reinstate (SOL'd) one week prior to testifying; (3) whether it was improper to admit into evidence photographs of the scene of the crime which inaccurately portrayed the lighting conditions at the time of the crime; (4) whether the trial court improperly prevented a forensic pathologist from giving his opinion as to the effect the alcohol level found in the blood of the victim would have on one's consciousness; and (5) whether the trial court improperly sentenced defendant to an extended term sentence. The following evidence was adduced at trial.

Michael Berry testified that on May 8, 1979, he and his friends were playing basketball at Dawes Park until 9:30 p. m. While he was near a water fountain in the park, the defendant and some of the defendant's friends approached him and started an argument. When Berry called to his own friends, the defendant's group and the defendant left.

About an hour later Berry was at 7919 S. Wood Street. Ernest Durham, Irving Wright, Larry Muse, Tim Quinn and Milton Robinson were also present on the east side of the street in front of a courtyard building. Berry was sitting on a short wall across the front of the courtyard listening to his radio. Durham and Muse were standing on the grass talking to each other in front of the building. Wright was on the grass walking toward Durham and Muse. Quinn was approaching the group from the other side of the street where another group of people was located. The lighting conditions were described as very good. The scene was lit by building lights and two streetlights each more than 50 feet away.

A black man, about 5'10" with short black hair, wearing dark blue pants and a green sweatshirt with white lettering across its front, approached. This man was later identified as the defendant. Defendant had just passed the curb and was on the walkway when defendant spoke to Wright and asked him about Berry. Wright looked at his face during this conversation. Then someone yelled that Berry was present. At this point the defendant pulled out a gun and told Wright not to lie. The defendant fired a shot in the air and told everyone to get down.

Durham and Wright crouched but continued to watch the defendant. From a short distance they saw the defendant walk to Muse, shoot him in the chest and kick him in the face. When Robinson heard the first shot he began to walk toward 80th Street. However, Robinson looked back over his shoulder and saw the assailant, who was two feet from Muse, shoot and kick Muse. Quinn, who knew the defendant from high school, saw him shoot and kick Muse. Quinn was eight feet from the defendant at this time and it was light enough to see the defendant. After Muse was shot Quinn began to walk back across the street but he turned and saw the defendant then shoot Berry. Durham was still in a crouching position and was much closer than Quinn to the defendant. Durham saw the defendant shoot Berry twice. Wright ran between the parked cars but saw the defendant chase Berry around the short wall at the front of the courtyard. The defendant shot Berry once and Berry threw a radio at the defendant. Defendant shot Berry a second time. Berry told investigators later that he did not get a good look at the defendant's face.

After shooting Berry defendant pointed his gun at Wright and pulled the trigger, but the gun did not discharge. Defendant fled, and Wright and Durham gave chase. Defendant tried to shoot his pursuers two more times during the chase, but the gun did not discharge. Eventually Durham and Wright cornered the defendant in the rear of 7932 S. Hermitage. The police arrived shortly thereafter and removed the defendant from the building. Wright entered the building but was ejected by the police.

A few hours later a lineup was conducted at the police station. The lineup consisted of five black men of approximately the same height and build. In the lineup defendant wore a green sweatshirt turned inside out. Each of four eyewitnesses identified defendant as the assailant. Each also made an in-court identification of defendant.

Defendant testified that on the night in question he left his mother's house to go jogging at 9:15 p. m. Defendant stopped at O'Halloran Park to look for friends. Failing to find any friends in the park, he headed to a barbeque place at 79th and Wood Streets. He was walking on the east side of the street but crossed the street to avoid a group of people on the east side of Wood Street. Defendant saw another group of people on the west side of the street. While crossing from the east side to the west side of Wood Street, defendant heard a shot. He started to run towards 79th Street. He heard someone say, "There go one of them." Defendant saw only one person chasing him through the alleys and yards.

Defendant testified that he ran towards the only light he saw. He broke into the rear of the building for protection. He told a man to call the police because someone was shooting. About 15 to 20 minutes later, a police officer arrested him.

The jury found defendant guilty of all counts. Defendant received an extended term sentence of 50 years for murder and 20 years for aggravated battery to run concurrently. Defendant appeals.

OPINION

Defendant first contends that the lineup was impermissibly suggestive because of the five men in the lineup only the defendant wore a green sweatshirt and that the in-court identifications of defendant were tainted thereby.

An accused is entitled to a fair identification procedure and is deprived of due process if considering the totality of the circumstances a pretrial confrontation is unnecessarily suggestive and conducive to mistaken identification. (Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.) An unnecessary and suggestive identification procedure does not per se require exclusion of the identification testimony. Such testimony is admissible if it is reliable considering the totality of the circumstances and there is not a very substantial likelihood of irreparable misidentification. (Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140.) Factors to consider in determining the reliability of identification evidence, despite its suggestive aspects, include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the time between the crime and the confrontation. (Manson.) These principles have been adopted and applied by the Illinois Supreme Court. People v. Manion (1977), 67 Ill.2d 564, 10 Ill.Dec. 547, 367 N.E.2d 1313.

Defendant cites People v. Franklin (1974), 22 Ill.App.3d 775, 317 N.E.2d 611, and several other non-Illinois cases for support of his argument that because he was the only individual in the lineup wearing a green sweatshirt the lineup was improperly suggestive. ¹ The Franklin court held that forcing defendant alone to wear the clothes worn by the perpetrator, hot pink pants, a camel hair coat and a black hat, made the lineup unduly suggestive. In rendering its ruling the court stated that lineup suggestiveness must be made on an objective basis and not be determined on the subjective basis of its effect on the witnesses. However, Franklin and the other cases cited by defendant were decided three years prior to the United States Supreme Court decision in Manson, which in effect rejected the per se inadmissible approach taken in Franklin. For as discussed previously, Manson states that in determining whether lineup identification should be suppressed, the focus should not be only on the procedures employed in the lineup but also on factors such as the witness' opportunity to view the criminal at the time of the crime, a subjective criterion. This two-step approach of evaluating whether identification evidence should be suppressed was impliedly utilized in People v. Manion (1977), 67 Ill.2d 564, 10 Ill.Dec. 547, 367 N.E.2d 1313, cert. denied, 435 U.S. 937, 98 S.Ct. 1513, 55 L.Ed.2d 533 (1978). There the court found that although the one-man show-up identifications of defendant made in a parking lot were suggestive, they were still reliable after evaluating the totality of the circumstances using the factors set forth in Manson.

Lineups have been held not to be impermissibly suggestive even though defendant was the only person in the lineup wearing a particular article of clothing, worn by or similar to that worn by the perpetrator. (People v. Anthony (1980), 90 Ill.App.3d 859, 49 Ill.Dec. 737, 418 N.E.2d 757; People v. Sakalas (1980), 85 Ill.App.3d 59, 40 Ill.Dec. 29, 405...