People v. Jackson

• Decision Date: 27 November 1974
• Docket Number: No. 56515,56515
• Citation: 24 Ill.App.3d 700,321 N.E.2d 420
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald JACKSON, and James Dunbar, otherwise called James Franklin, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 420

321 N.E.2d 420

24 Ill.App.3d 700

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald JACKSON, and James Dunbar, otherwise called James Franklin, Defendants-Appellants.

No. 56515.

Appellate Court of Illinois, First District, First Division.

Nov. 27, 1974.

James J. Doherty, Public Defender of Cook County, Chicago, for defendants-appellants Stanton Bloom, Asst. Public Defender, of counsel.

Bernard Carey, State's Atty., County of Cook, Chicago, for plaintiff-appellee; Kenneth L. Gillis, Linda West Conley, Nicholas Iavarone, Asst. State's Attys., Cook County, Chicago, of counsel.

HALLETT, Justice:

Defendants were convicted of armed robbery (Ill.Rev.Stat.1969, ch. 38, par. 18--2) and each was sentenced to serve from three to seven years in the penitentiary. They appeal, contending 1) that each was denied due process of law when the trial court denied their motion to suppress the in-court identification testimony; 2) that the State failed to prove them guilty beyond a reasonable doubt; 3) that defendant Jackson was denied due process of law by the prosecutor's disclosure of the details of Jackson's pre-trial plea bargaining negotiations; 4) that defendant Dunbar was denied due process of law when the trial judge denied his motion to seven his trial from that of defendant Jackson following the disclosure to the jury of Jackson's pre-trial plea bargaining negotiations; 5) that each was denied due process of law when the prosecutor tendered police reports and grand jury minutes to defense counsel in the presence of the jury during cross-examination of the complaining witness; and 6) that each was denied due process of law by the prosecutor's closing argument to the jury. Defendants ask us to reverse outright or to reverse and remand for a new trial. For reasons which follow, we affirm.

On January 23, 1970, the complainant, Frank Zmigrodski, was repairing an automobile parked outside the office of his used car lot located at 1719 North Western Avenue in Chicago, when he was approached by three men. He recognized one of them as one who previously had inquired with respect to the purchase of an automobile. The man suggested that the four men retire to his office and, when they did so, the three men attacked him. Two of them held his arms while the other pummeled his face and one of them produced a knife. They robbed him of approximately $65, a silver wristwatch, and a bottle of whiskey. They then proceeded to rip the telephone wires from the wall and to wrap them around the victim's limbs.

The victim freed himself and started across the street to get to a telephone and summon the police. In the street, he met a passing motorist, Herbert Warden, who inquired as to his hurry. A few short moments before, Warden had seen a trio behaving in a suspicious manner--running down the middle of a nearby street. There was snow on the ground from a recent snowfall, and he had seen the three men walking in the tracks left by passing automobiles. One of them, who was dressed in green pants, apparently unaware of the existence of Warden's car, slipped when he suddenly saw it and stumbled against it. He placed his hand upon the headlight to regain his balance and continued on his way. Another of the three slipped and fell in the snow. He got up and joined the other two, whereupon they resumed their journey down the street. The motorist continued until he noticed the victim. Putting three and one together, he questioned the victim and upon being informed of the circumstances of the robbery and a description of the three, he informed the victim that he had seen the men and would return to where he had seen them and follow them. He left and the victim then called the police.

The motorist soon located the three men near where he had last seen them. They were still 'walking fast, looking back'. He recognized the one in green pants who had stumbled against his car. He noted that another of the three wore red pants. The third was wearing dark clothing. He attempted to follow them but they noticed his presence and he returned to the scene of the crime.

The police were there already and he informed them of the above. He then directed them to where he had last observed the trio. En route to the scene, they broadcasted a description of the three over the radio to other patrolling policemen, one of whom noticed three men standing in an alley near the place described. One of the three wore red pants. Another wore green pants. The third wore dark clothing.

The three men were located in a T-shaped alley and they tried to escape, but the one in red pants and the one in green pants were captured and arrested. The man in red pants was the defendant Jackson and the man in green pants was the defendant Dunbar. They were taken to headquarters and searched.

A knife and two dollars were found on Jackson. Dunbar was found to have a silver wristwatch, some money, and a bottle of whiskey. They were then placed in a lineup. The victim and Warden were asked by police to view the lineup separately. Each saw four black males. Two were young. One wore red pants. Another wore green pants. The victim identified Jackson and Dunbar as two of the three men who robbed him. Warden also identified Jackson and Dunbar as two of the men he had followed. The victim subsequently identified the wristwatch police had found in Dunbar's possession as the one which had been stolen from him.

Defendant Jackson made a pre-trial motion to suppress any in-court identifications of him stemming from the lineup on the ground that the lineup was unnecessarily suggestive. Dunbar did not join in the motion. The motion was denied.

At trial defendant Jackson testified that he had been arrested while on his way with Dunbar to Jackson's brother's house after having unsuccessfully stopped to see Dunbar's girlfriend, who was not at home. He stated that he carried a knife for protection and that his head was bandaged and his arm was in a sling when arrested. Dunbar also testified. He corroborated Jackson's story respecting their whereabouts at the time of the crime. He added that the watch allegedly stolen by him was not the watch taken from him by the constables.

In rebuttal a police officer testified that it was the same watch and that he remembered no head bandage or sling worn by Jackson at the time of the arrest.

The jury found both men guilty and they were sentenced to three to seven years in the penitentiary.

The first issue raised by the defendants pertains to whether they were denied due process of law when the trial court denied Jackson's motion to suppress identification testimony. We shall consider this issue only with respect to defendant Jackson since defendant Dunbar never made a motion to suppress of his own accord, never joined in Jackson's motion, and never objected at trial to the in-court identification. Therefore, this argument is waived as to Dunbar. People v. Thomas (1971), 132 Ill.App.2d 198, 201, 267 N.E.2d 703.

Jackson contends that his motion should have been granted because the lineup unnecessarily suggested to identifying witnesses that he was the culprit. He argues that he (and Dunbar) was the only one exhibited to the witnesses in clothing allegedly worn by the culprit and that he (and Dunbar) was the only one exhibited who was approximately the age of the described culprits. He maintains that as a result, the lineup directly resulted in a mistaken identification. We disagree.

The burden is on the defendant to establish that within the totality of the circumstances the lineup was so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable mistaken identification (Stovall v. Denno (1967), 388 U.S. 293, 301--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Neil v. Biggers (1972), 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401; People v. Weathers (First District, 1974), No. 58493, Ill.App., 320 N.E.2d 442.) Should defendant succeed in meeting this burden, then the in-court identification would be held inadmissible. However, substantial differences in age and appearance between suspects and others exhibited in a lineup do not in themselves establish that a lineup was unnecessarily suggestive. Such differences affect only the credibility of the identification; not its admissibility (People v. Norfleet (1972), 4 Ill.App.3d 758, 764, 281 N.E.2d 761; People v. Terczak (1968), 96 Ill.App.2d 373, 378, 238 N.E.2d 626.) In any case, even if the lineup is found to have been invalid, the identification in court may still be admissible provided that the State establishes by clear and convincing evidence that the identification is based on an observation independent of and prior to the tainted lineup. People v. Fox (1971), 48 Ill.2d 239, 245, 269 N.E.2d 720; People v. Weathers (First District, 1974), No. 58493, Ill.App., 320 N.E.2d 442.

In the present case there are two reasons why the identification was admissible. First, the differences between the defendant and others in the lineup were not of the sort which affect admissibility of the identification. They affected only the credibility of the identifying witness' testimony. We have examined the record carefully and have found that defense counsel quite ably spotlighted the problems with the lineup identification. The jury was properly informed and left to assess the credibility of the defendant's identification and to determine how much weight it was to be given.

Second, the State met its burden of showing an independent origin to the in-court identification. The record shows that both identifying witnesses had ample opportunities to observe the culprits for several minutes under conditions of good lighting. The victim first saw a man he identified as Jackson when that man inquired prior to the robbery with respect to possibly purchasing an automobile. He saw that man again and another, whom he identified as Dunbar, at close range while they robbed, pummeled and tied...