People v. Jackson

• Decision Date: 20 January 1972
• Docket Number: Gen. No. 70--163
• Citation: People v. Jackson, 277 N.E.2d 900, 3 Ill.App.3d 574 (Ill. App. 1972)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eddie JACKSON, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 900

277 N.E.2d 900

3 Ill.App.3d 574

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eddie JACKSON, Defendant-Appellant.

Gen. No. 70--163.

Appellate Court of Illinois, Third District.

Jan. 20, 1972.

John L. Barton, Illinois Defender Project, Ottawa, for defendant-appellant.

Arthur Lennon, Asst. State's Atty., Will County, Joliet, for plaintiff-appellee.

DIXON, Justice.

The defendant, Eddie Jackson, was indicted for armed robbery, was found guilty by the trial judge, and was given a sentence of five to ten years.

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

The armed robbery from which this case developed took place at 11:30 P.M. on February 13, 1969. The victim was about to close the gasoline station where he was working when three Negroes came through the door. The victim turned and looked at the first man as he took a couple of steps toward the victim and then struck him with a club. The victim was then shoved into the bathroom and forced to lie face down on the floor, and he did not see the men again before their departure.

The next night the victim went to the police station, gave a description of his assailant and the club that had been used, and looked through more than a hundred photographs. He failed, however, to identify that of the defendant. It showed the defendant with short hair, and the victim's impression of his assailant's hair was that it was long, straightened, and greasy in appearance.

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

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

Five days later a lineup was held. The victim promptly identified the defendant in a group of five persons. The defendant was represented by counsel.

At the trial the victim identified the defendant again. Other evidence against the defendant was the nightstick which the police had recovered from the defendant's apartment. The victim said it was similar to the one used in the robbery, and that the assailant had swung it with his left hand. The defendant admitted that he was left-handed.

The defendant and four other witnesses testified that on the night of the robbery he was in the living room of his father's trailer house from 8 p.m. until 1:30 a.m. The other witnesses were the defendant's wife, his mother, his stepfather, and an acquaintance.

The trial judge, after commenting on the evidence of guilt and the identification procedure and stating his belief that the identification was cautious, proper, and correct, found the defendant guilty as charged.

Recently, in People v. Brown, 267 N.E.2d 142 (Ill.App.1971), this court held that initial identification from photographs and subsequent line-up identification did not constitute impermissibly suggestive procedure. We believe the reasoning of that case and cases cited therein to be applicable here. We do not consider photographic identification to be proscribed by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 and do not find error in the identification procedure followed in the present case.

It is our opinion (as noted in People v. Brown, supra) that there was no reversible error herein by reason of the alibi testimony presented. It was for the trial judge to determine the weight to be given this evidence, and the testimony of a single witness may be sufficient to convict although contradicted by alibi witnesses. People v. Bracey, 129 Ill.App.2d 57, 262 N.E.2d 748. Furthermore, rather substantial errors in height and weight estimates originally given to police have been held not to affect the credibility of an eye-witness identification. People v. Calhoun, 270 N.E.2d 450 (Ill.App.1971). We conclude that the trial judge was justified in finding the defendant guilty beyond a reasonable doubt.

As to the sentence imposed, we would also affirm. In imposing sentence the trial court has an obligation to the public as well as to the person found guilty of a crime. Thus in sentencing, the court must consider the punishment warranted under the circumstances of the particular case, the protection of the public, and the potential for rehabilitation of the party being sentenced. The circumstances of the case include the nature of the offense, the attending circumstances, the character and propensities of rehabilitation, and all other pertinent matters. People v. Buell, 120 Ill.App.2d 367, 256 N.E.2d 845.

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

Judgment affirmed.

ALLOY, P.J., concurs.

STOUDER, J., dissents.

STOUDER, Justice (dissenting).

I do not agree with the majority of the court. I believe that the extrajudicial identification process considered as a whole was unduly suggestive, irreparably prejudicial and not warranted by any practical imperative.

I believe that the rules laid down in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, are applicable and have been reaffirmed by the Illinois Supreme Court in People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634. See also, Colo. Law Rev. 135 'In the Wake of Wade: The Dimensions of the Eyewitness Identification Cases' by Joseph R. Quinn. In Simmons, supra, the U.S. Supreme Court said, '* * * we hold that each case must be considered on its own facts, and that convictions 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.' In applying this standard to the facts in the Simmons case, supra, the court concluded among other things, that the defendants were not in custody at the time the photographs in question were shown to the witnesses and the circumstances of the case showed there was little chance for misidentification because the robbery took place in the afternoon in a well lighted bank, five bank employees had been able to see the robber, later identified as Simmons, for periods ranging up to five minutes and the witnesses were shown the photographs from which they made their identification only one day after the robbery....