People v. Rosa

• Decision Date: 06 March 1981
• Docket Number: No. 79-1220,79-1220
• Citation: 93 Ill.App.3d 1010,418 N.E.2d 124,49 Ill.Dec. 480
• Parties: , 49 Ill.Dec. 480 PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David A. ROSA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 124

418 N.E.2d 124

93 Ill.App.3d 1010, 49 Ill.Dec. 480

PEOPLE of the State of Illinois, Plaintiff-Appellant, v. David A. ROSA, Defendant-Appellee.

No. 79-1220.

Appellate Court of Illinois, First District, Fifth Division.

March 6, 1981.

[49 Ill.Dec. 482] James J. Doherty, Public Defender, Chicago, for plaintiff-appellant; Richard S. Schiffrin and Matthew J. Beemsterboer, Asst. Public Defender, Chicago, of counsel

Bernard Carey, State's Atty., Chicago, for defendant-appellee; Marcia B. Orr, Joan S. Cherry and Alexander Vroustouris, Asst. State's Attys., Chicago, of counsel.

SULLIVAN, Presiding Justice:

After a bench trial, defendant was convicted of murder and armed robbery and sentenced to a term of 50 to 100 years. On appeal, he contends that his motion to suppress identification was erroneously denied; that his guilt was not proved beyond a reasonable doubt; and that his written exculpatory statement was improperly introduced as rebuttal evidence.

It appears that during an armed robbery of the Rip-Tide Lounge, $250 in cash was taken from the owner-bartender (Marie Wuczynski) and a patron was killed.

A hearing on defendant's motion to suppress identification was conducted prior to trial at which Edwin Torres testified that he appeared in a police lineup with defendant which was first viewed by a man and a woman and than by "a chubby, blond" Polish lady, none of whom made an identification although police officers showed pictures to the Polish lady three times during the lineup. On cross-examination, he stated that he had known defendant for four or five years, during which he had worked and socialized with him, and that they were members of the same organization. Marie Wuczynski (the Polish lady) testified that after the robbery she examined two books of photographs and six, seven, or eight loose photos at the police station looking for a man with "sort of bushy hair"; that from this array of photographs, she selected one picture which resembled defendant but did not make a positive identification at that time; that the next morning she was the first of three people to view a police lineup, and she made a positive identification of defendant; and that she did not have a photograph with her during this proceeding. Officer Cagney testified that he conducted the lineup which was viewed by three persons; that Marie Wuczynski, the first person to view the lineup, identified defendant and, although she had looked at photographs the day before, he did not show her any photos immediately prior to, during, or after the lineup. Following arguments of counsel, defendant's motion to suppress identification was denied.

At trial, Christopher Flowers (a State witness) testified that on April 24, 1977, he was in an automobile with defendant and an individual called "Bandit"; that at about 3 a. m. defendant and Bandit left the car near the intersection of Armitage ¹ and Hermitage, stating they were going to use the washroom of a nearby tavern; and that he then heard firecracker-like sounds, after which defendant and Bandit "got out of the tavern and came back in the car." On cross-examination, the witness admitted previously telling defense counsel and an investigator that on April 24 he and defendant went to the lake, proceeded to Old Town, went by a "Liquor place," and then stopped at Armitage and Hermitage but not at a tavern; that he had been "doing some drugs" on that day, and on the next day he was taken to the police station where he was questioned for about 15 hours during which time a police officer was "stepping on his shoes"; that he gave officers a statement at that time; and that Marie Wuczynski testified that on April 24, at approximately 3 a. m., she was tending bar at the Rip-Tide Lounge, at 1745 West Armitage; that the lounge is always bright and well lit with lights right next to the cash register; that while facing the cash register she heard shots, turned around, and saw a man standing approximately five feet away pointing a gun at her and another man with a gun standing at the front door, about 15 feet away; that the closer man (whom she identified in court as defendant) stood about 6 feet tall, wore a moustache, had hair on his chin and wild black hair, weighed about 165 pounds, and appeared to be 28 to 30 years old; that the other armed man stood about 5 feet 3 inches tall, weighed about 135 pounds and appeared to be 25 or 26 years old; that defendant told her to "give me the money" and she gave him $250 cash; that after defendant and the other man left she saw Paul Ernie, who had been sitting on a bar stool when defendant entered the lounge, lying on the floor; and that the entire incident lasted about five minutes.

[49 Ill.Dec. 483] five days later, a pending juvenile charge against him was dropped.

The parties stipulated that Paul Ernie died of a bullet wound and that there were eight bullet wounds in his body.

Christopher Flowers's mother testified for the defense that on April 26, when Christopher returned home from the police station, he told her that the police were investigating a shooting which he knew nothing about because he was asleep in the car; and in October 1978, she was present when defense counsel asked her son whether defendant and Bandit had stopped at a tavern on April 24 to use the bathroom, and her son replied, "(T)hey wouldn't have to stop in no tavern to use the bathroom. If they wanted to use the bathroom, they'd just get out there behind the car and use it." She also stated that he son takes drugs, drinks a lot, and lies; that she cannot keep things of value in the house because he steals them; and that after Christopher talked to assistant State's Attorneys the week prior to trial, he told her they wanted him to say things he did not know.

Officer LaRosa, called by the defense, testified that on April 24 he responded to a robbery in progress at the Rip-Tide Lounge; that Marie Wuczynski described one of the offenders as a black-haired male Latino, appearing to be 25 to 30 years old, standing about 5 feet 10 inches tall, weighing approximately 155 pounds, and wearing a moustache; that although his police report indicated that this offender had an Afro style hairdo, he acknowledged that his may have been his interpretation of curly hair; that he did not recall whether Wuczynski mentioned anything about the offender having had a goatee; and that Wuczynski described the other offender, who stood by the door, as standing 5 feet 6 inches tall, appearing to be 23 to 26 years old, and weighing about 135 to 140 pounds.

David Garcia, also known as "Bandit" (a defense witness), testified that on April 24, defendant, Christopher Flowers, he, and others drove to the lake and then to Old Town where everyone left the car except Flowers who was asleep in the back seat; that after he and defendant returned to the car, he drove defendant and Flowers to their respective homes; that he did not stop at the Rip-Tide Lounge or anywhere else that night; and that on April 24, he stood 6 feet tall, was 18 years old, and weighed 210 pounds. On cross-examination, Garcia said that he and defendant arrived at the lake at about midnight; that he first saw defendant that evening at about 11 p. m.; and that he does not know where the Tropical Magic Lounge is and no one from the group he was with went there on the night in question.

It is undisputed that at the time of defendant's arrest he did not have an Afro hairdo, and that he was 20 years old, stood 6 feet 1 inch tall, weighed 140 pounds, and wore a moustache and goatee.

OPINION

Defendant first contends that his identification should have been suppressed, as it was the product of unnecessary suggestion.

The determination as to whether a pretrial confrontation in a specific instance is "so unnecessarily suggestive and conducive to irreparable mistaken identification that (the accused) was denied due process * * * depends on the totality of the circumstances surrounding it * * * " (Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206), and defendant bears the burden of proving that such a confrontation resulted in a denial of due process (People v. McMath (1970), 45 Ill.2d 33, 256 N.E.2d 835, cert. denied (1970), 400 U.S. 846, 91 S.Ct. 92, 27 L.Ed.2d 83; People v. Madden (1977), 52 Ill.App.3d 951, 10 Ill.Dec. 789, 368 N.E.2d 384). In order to sustain this burden, the totality of the circumstances must not only demonstrate suggestiveness (Stovall v. Denno; People v. Lee (1969), 44 Ill.2d 161, 254 N.E.2d 469), but also show a substantial likelihood of misidentification (Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; People v. Santiago (1977), 53 Ill.App.3d 964, 11 Ill.Dec. 671, 369 N.E.2d 125).

Defendant initially maintains that Wuczynski's lineup identification was "necessarily and fatally tainted" by her prior selection of a photograph which resembled the man who robbed her tavern. It appears that on the morning of the robbery the witness viewed two large photo books as well as six, seven, or eight loose photographs from which she selected one which looked like the offender. She did not make a positive identification at that time, but the next day she identified defendant at a lineup. There is no indication, however, in the record nor does defendant argue that this viewing procedure was in any way suggestive, and we do not believe that the inability of Wuczynski to positively identify defendant from the photographs suggests in itself that her lineup identification was tainted. Cf. People v. Soto (1975), 35 Ill.App.3d 166, 341 N.E.2d 107.

Defendant also argues that suggestiveness was established in the testimony of Torres, a participant in the lineup, that Wuczynski could not make a positive identification of defendant at the lineup and that she was shown photographs by the police while she was viewing the lineup. However, the pretrial hearing testimony of Wuczynski...