People v. Smith

• Decision Date: 26 March 1974
• Docket Number: No. 57114,57114
• Citation: 18 Ill.App.3d 859,310 N.E.2d 734
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis J. SMITH, Dfendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 734

310 N.E.2d 734

18 Ill.App.3d 859

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis J. SMITH, Dfendant-Appellant.

No. 57114.

Appellate Court of Illinois, First District, Second Division.

March 26, 1974.

James J. Curtrone, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Cook County, for plaintiff-appellee; Kenneth L. Gillis, Patricia Campbell Bobb, Asst. State's Attys., Stephen J. Broussard, Chicago, Ill., of counsel.

STAMOS, Justice.

Defendant, Dennis Smith, was charged with attempt armed robbery ¹ and aggravated battery. ² After a jury trial he was found guilty of both offenses and was sentenced to concurrent terms of 4 to 11 years in the penitentiary. Defendant appeals and urges reversal of his convictions on the grounds that:

1. The victim's in-court identification of defendant was tainted by suggestive show-up and lineup procedures and defendant's motin to suppress the in-court identification was erroneously denied;

2. Impermissible hearsay testimony regarding the victim's out-of-court identification of defendant was allowed into evidence;

3. Defendant's right to cross-examine his accuser was unduly restricted;

4. Evidence of a gun and cartridges was erroneously introduced into evidence when no connection between the evidence and the offenses was shown; and

5. The evidence was insufficient to prove defendant guilty beyond a reasonable doubt.

On March 25, 1971, at approximately 6 P.M., Bertha Adams was walking east on 61st Street in Chicago. She noticed three boys walking behind her, and as she turned to enter a courtyard of a building at 705 East 61st Street, the three boys passed her. She observed the shortest of the three follow her into the countyard, and heard a voice behind her say 'Give me your purse or I will shoot you.' Mrs. Adams turned to her left and looked directly at the offender. He repeated his statement and Mrs. Adams then screamed and began to run. The offender shot her in the hip and she fell. Neighbors called police who arrived on the scene and transported the victim to Billings Hospital.

At trial Mrs. Adams identified defendant as the man who approached her, asked for her purse and shot her. She also testified that she identified defendant by his face and his voice when he was brought into her hospital room. On cross-examination she testified that she had never seen defendant prior to the incident, and that she could not describe the other two boys at the scene. She stated that she did not know how long she observed the offender's face, and denied stating in previous testimony that she observed the offender for no more than ten seconds. She also recalled that she described the offender to police as a Negro wearing a black leather jacket. She did not tell police that the jacket was waist-length or that the offender was a Negro with a dark complexion. She did not describe his face or hair style, sand she did not see the gun held by him. In the hospital the officers told her that they had a man for her to look at, and then they brought in defendant. She recognized defendant's face.

Detective Lawrence Copeland testified that he arrived at Billings Hospital to investigate the crimes at approximately 7 or 8 P.M., on March 25, 1971. The victim was lying on a bed and a lineup was conducted in the hospital emergency room. Two Negro policemen were placed in the lineup with defendant, and the victim identified defendant. Two or three days after the incident, Detective Copeland returned to the hospital to retrieve the bullet removed from Mrs. Adams' body, but he was informed by hospital personnel that the bullet had been lost.

Detective Robert Krueger, Officer Copeland's partner, testified regarding the lineup at the hospital. His testimony was substantially identical to Copeland's. He added that the gun dropped by defendant prior to his arrest was shown to Mrs. Adams who could not identify it as the gun wielded by her attacker.

Officer Richard Hutchings, who responded to the call regarding the shooting and who also arrested defendant, testified that the victim described the offender as a 'male Negro, dark-skinned, approximately 18, wearing a black, waist-length leather jacket.' He and his partner began a search of the area, and after patrolling for approximately 1/2 hour, he observed defendant in an alley. He observed defendant step behind a post or telephone pole and drop a white object. The officer left his car and defendant moved toward 63rd Street. The officer proceeded to the post and found a small, .22 caliber revolver with one expended cartridge. He chased defendant who had begun to run, and he apprehended defendant in another alley. The officer told defendant that he fit the description of a man involved in an attempt armed robbery and aggravated battery, and defendant denied any involvement in the crimes. The officer proceeded to Billings Hospital with defendant and inquired as to the victim's condition. He then brought defendant into the victim's room whereupon the victim stated 'That is the man.' On cross-examination Officer Hutchings stated that he had stopped two or three persons fitting the offender's description prior to his observation of defendant. He also recalled that defendant denied dropping a gun, and that he stated that he had been with friends between 5 P.M. and 7 P.M. that evening.

After introducing into evidence the gun, one expended cartridge and three unexpended cartridges, the State rested.

Defendant testified in his behalf that he was with friends at 884 East 64th Street from 5:30 P.M. to approximately 7:40 P.M. on the evening in question. He stated that he did not drop a gun in the alley, and that he was not running away from police when he was arrested. At the time of his arrest, at approximately 7:40 P.M., the officers did not mention the gun. He was taken to the hospital and brought into a room where Officer Hutchings asked Mrs. Adams if he was the person who had shot her. She did not speak, but shook her head. He was taken from the room and two detectives entered the room with the victim. They later existed and placed defendant in a lineup with two policemen. They were all told to say 'Give me your purse or I will shoot you.' The victim then identified defendant.

Tyrone Smith and Flossie Smith were called as alibi witnesses. They both testified that defendant arrived at their apartment between 3 P.M. and 4 P.M. and remained until after 8 P.M. on March 25, 1971.

In rebuttal the State recalled Officers Hutchings and Krueger. Officer Hutchings testified that he arrested defendant between 7:30 and 7:45 P.M. Officer Krueger testified that he first observed defendant at the hospital at approximately 7:40 P.M.

The jury found defendant guilty as charged.

Defendant first contends that his motion to suppress the identification testimony of Bertha Adams should have been granted. He argues that her in-court identification was based upon suggestive pre-trial identification procedures, and that therefore, he was denied due process of law.

At the hearing on the motion to suppress, defendant testified that at the showup the victim stated 'No, Sir' in response to a question whether defendant was the offender. Then three other persons were placed in the lineup with him. One of the men was black, two were white and all three were taller than defendant.

Officer Hutchings testified that he brought defendant into the emergency room, and when the victim saw him she said 'This is the man.' When this identification was made defendant was standing in the doorway to the room, 3 or 4 feet from the victim.

Bertha Adams testified at the hearing that she identified defendant when he was brought into her room and stood next to her bed. Later defendant repeated the words spoken during the attempt robbery and she told police that she recognized defendant by his face and voice.

The trial court then denied defendant's motion to suppress the identification testimony.

Defendant cites the case of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, in support of his argument. In Stovall the Supreme Court stated that 'the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.' 338 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199. The Court held, however, that the test to determine a violation of due process in the conduct of a confrontation depends upon the totality of circumstances surrounding that confrontation. Where a defendant proves that the identification procedure was so suggestive as to give rise to a substantial likelihood of irreparable misidentification, a deprivation of due process is established and the identification testimony must be suppressed. (Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; People v. Johnson,45 Ill.2d 38, 257 N.E.2d 3.) Hospital show-ups Per se cannot be considered to be so suggestive as to give rise to a substantial likelihood of misidentification. Hospital show-ups have been upheld where the physical condition of either the victim or the accused renders such a confrontation imperative (Stovall v. Denno, Supra; People v. Young, 6 Ill.App.3d 119, 285 N.E.2d 159), or where the victim's excellent opportunity to view the defendant during the commission of the crime negates the likelihood of misidentification. People v. McCorry, 51 Ill.2d 343, 282 N.E.2d 425.

In the instant case defendant argues that the hospital show-up was unnecessary in that the victim was not in critical condition. When defendant was brought to the hospital the police officers were informed that the victim was to undergo surgery for removal of the bullet. In view of these circumstances, the officers reasonably believed that an immediate identification prior to surgery was the only feasible procedure for identification. We cannot now say that the officers' determination was unreasonable.

Moreover, even if we were to...