People v. Newell

• Court: Illinois Supreme Court
• Writing for the Court: KLUCZYNSKI
• Citation: People v. Newell, 268 N.E.2d 17, 48 Ill.2d 382 (Ill. 1971)
• Decision Date: 21 May 1971
• Docket Number: No. 43342,43342
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Leroy P. NEWELL, Appellant.

Page 17

268 N.E.2d 17

48 Ill.2d 382

The PEOPLE of the State of Illinois, Appellee, v. Leroy P. NEWELL, Appellant.

No. 43342.

Supreme Court of Illinois.

May 21, 1971.

Donald L. Johnson, Chicago, appointed by the court, for appellant.

William J. Scott, Atty. Gen., Springfield and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Robert A. Novelle and Richard Pezzopane, Senior Law Student, Asst. State's Attys., of counsel), for the People.

KLUCZYNSKI, Justice.

Leroy Newell, herein referred to as defendant, and Edward Johnson, were tried by jury in the circuit court of Cook County and convicted of the crime of armed robbery. The judgment of conviction was affirmed by the Appellate Court. (People v. Johnson, 123 Ill.App.2d 69, 259 N.E.2d 621.) While the appeal was pending defendant Newell filed a post-conviction petition in the trial court and, following an evidentiary hearing, the trial court denied relief. The final judgment in that proceeding was entered before the judgment of the Appellate Court was handed down. This appeal is by defendant Newell from the denial of his post-conviction petition.

The amended post-conviction petition which was prepared by appointed counsel raised two points. The petition alleged that the defendant was deprived of his right to the assistance of counsel at a pretrial identification proceeding, and that the allegedly improper confrontation led to the identification of the defendant at the trial. The second allegation was that the defendant was denied the effective assistance of counsel at his trial.

The identification about which defendant complains occurred after the effective date of the decisions of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and defendant claims that under the doctrine of those cases he had an absolute right to the assistance of counsel at the time of the identification. A determination of this issue requires a brief statement as to the circumstances under which defendant was identified. The robbery occurred at about 12:30 P.M. on a summer day. The victim testified that he was accosted by three unmasked men as he was returning to work from his lunch hour. After the robbery the robbers walked away and the victim ran to his place of employment to telephone the police. He then returned to the street, stopped a passing motorist and rode with him a short distance until they met a police car. The victim then rode around the area with the police officers for a short time when he observed the three robbers buying some refreshments from a sidewalk vendor. The three men saw the victim in the squad car and turned and ran. One of the officers made a call over the police radio and a short time later other officers in another squad car observed a man answering the defendant's description and placed him under arrest. Immediately following defendant's arrest the police car in which the victim was riding arrived at the scene. At that time the victim identified the defendant as one of the robbers. The circumstances under which this identification was made were similar to those in People v. Young, 46 Ill.2d 82, 263 N.E.2d 72, in which the identification also occurred after Wade and Gilbert. In that case the victim of the robbery reported it to the police and soon thereafter the officer to whom the report had been made arrested the defendant. Immediately following the arrest the victim identified the defendant. We held that the identification in the absence of counsel did not deprive the defendant of his constitutional right to counsel and pointed out that police officers had a duty to determine at once whether or not the victim of the crime could identify a person in custody as the man who had committed the crime. We are of the opinion that the identification here, coming soon after the crime and near the scene of the crime, did not violate any of the rights of the defendant.

We turn now to a consideration of defendant's charge that his counsel at at his trial did not adequately represent him. Although the post-conviction petition made numerous specific charges of trial counsel's incompetency, the principal argument advanced on the appeal is that counsel failed to call a certain witness whose testimony would allegedly have reflected upon the credibility of the testimony of the victim. In support of this allegation an affidavit by the mother of Johnson, the codefendant, was attached to the petition. In that affidavit she stated that she had talked to the robbery victim at the time of the preliminary hearing and at that...