People v. Hefner

• Decision Date: 06 April 1979
• Docket Number: No. 77-351,77-351
• Citation: 27 Ill.Dec. 96,70 Ill.App.3d 693,388 N.E.2d 1059
• Parties: , 27 Ill.Dec. 96 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Norman HEFNER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1059

388 N.E.2d 1059

70 Ill.App.3d 693, 27 Ill.Dec. 96

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Norman HEFNER, Defendant-Appellant.

No. 77-351.

Appellate Court of Illinois, Fifth District.

April 6, 1979.

Michael J. Rosborough, Deputy State Appellate Defender, Jeffrey M. Plesko, Asst. State Appellate Defender, Fifth Judicial Dist., Mount Vernon, for defendant-appellant.

Howard L. Hood, State's Atty., Murphysboro, Raymond F. Buckley, Jr., Deputy Director, Curtis L. Blood, Staff Atty., State's Attys. Appellate Service Com'n, Mount Vernon, for plaintiff-appellee.

KARNS, Justice:

Following a jury trial in the Circuit Court of Jackson County, defendant was convicted of forgery. Defendant appeals from his conviction raising issues involving the identification of an accused by a single witness.

On March 11, 1975, a checkbook was taken from a purse belonging to Terry Irby along with identification and credit cards. Later that day, a black male entered a Sears store and proceeded to write two checks in the name of Harry Irby who had a joint account with his wife. The first check in the amount of $242.50 was cashed between 4 and 5 p. m. by Nancy White, a Sears employee and supervisor of the cashier's department. Approximately one week after the incident, Ms. White gave a description of the man to a security officer at Sears. She described him as approximately six feet tall, with an afro, a possible goatee and a muscular build. A few days later, she was shown a photo array, of which two of the six photographs were of defendant, but she could not make an identification. At trial, Ms. White was unable to say whether defendant was the man who had signed the check.

Mary James, a cashier at Sears, saw Ms. White cash the first check. Later that evening, the man returned and wrote a second check for $255. Ms. James cashed the check after it was approved by Raymond Morris, a Sears staff man. She was later able to identify one of the two pictures of defendant in the photo array; however, after her husband indicated that the display included a second photograph of the same person, Ms. James was then able to recognize that it was the defendant as well. At trial, she testified that defendant was the person who had delivered the checks to Ms. White and herself. She further testified that the area surrounding the Sears' cashier's window was illuminated by fluorescent lights; that defendant was two to three feet away from her when the checks were cashed; that she had an opportunity to view defendant under the store's lighting; that she had never seen him before the check cashing incident; and that defendant then had a mustache, a little goatee and less facial hair than he had at trial.

During an extensive cross-examination, it was revealed that at the preliminary hearing, two years prior to trial, Ms. James had stated that she had seen defendant in Carbondale prior to the incident. Furthermore, at the hearing she had described the man as being a negro male, approximately 6 feet in height, slim in build, and having possibly a goatee. Her prior testimony also indicated that she did not believe that defendant had a mustache at the time of the check cashing incident. In commenting upon her prior testimony at trial, she stated that she thought defendant had a mustache but was not certain because she had not been staring at him and was unable to observe every detail. When asked whether she was sure that defendant was the person who had presented the two checks, Ms. James replied, "I am positive."

Robert Hopkins, an investigator for the SIU security police, testified that Raymond Morris, the Sears employee who had approved the second check, was unable to identify positively defendant from the photo array. Mr. Morris, however, upon viewing the photographs, told Hopkins that the person who had signed the second check resembled defendant. Mr. Morris did not testify at trial having apparently moved out of the jurisdiction.

At the time of defendant's arrest three weeks after the incident at Sears, defendant had a slight but noticeable full beard and mustache. Defendant is approximately 6 feet tall and weighed 170 pounds at the time of his booking at the county jail.

Defendant first argues that he was not proved guilty beyond a reasonable doubt because his conviction was based solely upon an identification which was doubtful, vague and uncertain. The law is well settled that the testimony of a single identification witness, if positive and credible, is sufficient to support a conviction. (People v. Harrison, 57 Ill.App.3d 9, 14 Ill.Dec. 636, 372 N.E.2d 915 (1st Dist.1978).) The fact that not all eye witnesses to the criminal offense can make a positive identification of the accused does not of itself prevent a conviction. (People v. Young, 46 Ill.App.3d 798, 5 Ill.Dec. 162, 361 N.E.2d 301 (2d Dist. 1977); People v. Fleming, 32 Ill.App.3d 418, 336 N.E.2d 244 (5th Dist. 1975).) The failure of a witness to identify an accused merely goes to the weight of the evidence and the credibility of the witness. (People v. Young.)

A precisely accurate description by the identifying witness of the facial characteristics of defendant is not necessary where the witness is able to make a positive identification under conditions adequate for observation. (See People v. Harrison; People v. Moore, 50 Ill.App.3d 952, 8 Ill.Dec. 894, 365 N.E.2d 1356 (2d Dist. 1977); People v. Brown, 50 Ill.App.3d 348, 8 Ill.Dec. 521, 365 N.E.2d 907 (1st Dist. 1977).) Furthermore, minor discrepancies in the testimony of a witness at the preliminary hearing and at trial, such as whether or not defendant had a slight mustache at the time of the offense, will not render an identification of an accused invalid. (People v. Guyton, 53 Ill.2d 114, 290 N.E.2d 209 (1972); People v. Harrison.) The possible inability of a witness to describe in detail the facial characteristics and clothing of the accused and the presence of possible contradictory testimony are factors which the trier of fact must consider in determining the credibility of an identification witness. (People v. Harrison.)

In the present case, Ms. James had the opportunity to view defendant at the Sears store on two separate occasions, at close range and under bright fluorescent lights. While she was not certain whether defendant had a mustache at the time of the incident, she was otherwise able to furnish a clear and accurate description of the accused and identify him both in a photograph array and at trial. The two other witnesses to the cashing of the checks, though unable to make a positive identification of defendant, were nevertheless able to corroborate much of Ms. James' testimony. On the basis of the above testimony, we believe that there was...