People v. Sweeny

• Decision Date: 17 February 1978
• Docket Number: No. 77-9,77-9
• Citation: 373 N.E.2d 663,15 Ill.Dec. 317,57 Ill.App.3d 879
• Parties: , 15 Ill.Dec. 317 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmy SWEENY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 663

373 N.E.2d 663

57 Ill.App.3d 879, 15 Ill.Dec. 317

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmy SWEENY, Defendant-Appellant.

No. 77-9.

Appellate Court of Illinois, Fifth District.

Feb. 17, 1978.

Ralph Ruebner, Deputy State App. Defender, Victoria J. Meyers, Asst. State App. Defender, Chicago, for defendant-appellant.

Stephen L. Spomer, State's Atty., Metropolis, Bruce D. Irish, Principal Atty., Martin N. Ashley, Staff Atty., Ill. State's Attys. Ass'n, Mount Vernon, of counsel, for plaintiff-appellee.

EBERSPACHER, Presiding Justice:

This is an appeal by defendant, Jimmy Sweeny, from the judgment entered by the circuit court of Massac County on a jury verdict finding him guilty of armed robbery.

On March 13, 1976, two men armed with guns gained entrance to the home of Eugene and Ruth McBeth and robbed them of cash and various United States Savings Bonds. At the time of trial Eugene McBeth was deceased. Ruth McBeth testified that at approximately 4:00 or 4:15 p. m. on the date of the incident, the two men came to the door of the McBeth home and they identified themselves as FBI agents investigating a shooting purportedly involving the McBeths' son. Ruth McBeth positively identified defendant at trial as the taller of the two men. She stated that at that time he was clean-shaven and wore dark glasses. When Eugene McBeth asked the two men to show their identification, defendant's accomplice produced a gun and he and defendant forced their way into the house. Ruth McBeth was standing next to her husband as defendant took her husband's wallet. The McBeths were then ordered to sit down, and while they were there held at gun point by the accomplice, defendant searched through the house. After looking through their desk drawers defendant briefly left the house. When he returned he ordered the McBeths into their bedroom. They complied. Ruth McBeth stated that when she next saw defendant, he was in the living room emptying her purse onto a couch. Thereafter the McBeths were tied with wire and tape and defendant and the accomplice left the premises.

The entire incident lasted approximately 15 minutes. Ruth McBeth stated that there could be no mistake about her identification of defendant because she had "looked right at his face". She admitted that at the time of the incident she had described defendant as weighing between 180 and 200 pounds but she stated that she was "not very good on weights of men". She also stated that she had not seen a scar on defendant's face.

Also testifying on behalf of the State was Allen Atwood. He admitted having two prior convictions for aggravated assault and resisting arrest. He stated that on July 12 or 13, 1976, he, defendant's ex-wife Donna and another woman, went to defendant's apartment where they took various papers belonging to defendant. Defendant was not present at that time. The papers were placed in a sack and were brought to the home of defendant's cousin. Subsequently, Atwood took the papers to his parents' camper. Thereafter the papers were turned over to the police who inspected the contents and found what were identified as the missing United States Savings Bonds taken from the McBeths' home. Atwood acknowledged that he did not know whether the papers actually were defendant's nor whether anyone had added or subtracted from their contents after he had taken them.

In his own behalf, defendant testified denying that he had committed the crime charged. He stated that he had a long scar on the left side of his face and that he had always worn a partial beard and mustache. He described his weight as between 250 and 270 pounds. Various other witnesses also testified that defendant had a scar on his face and that he wore a mustache and sideburns.

Detective Bill Reineking testified as a defense witness that on July 13, 1976, while defendant was in custody, the McBeths were shown a group of photographs for purposes of identification and that on July 19, 1976, a line-up was conducted both of which involved defendant. Reineking stated that the defense attorney was not present during the photographic identification procedure because he had not been appointed at that time. He further stated that the defense attorney was present in the room where the line-up was assembled but was denied permission to enter the separate room from which the McBeths viewed the line-up and made their identification. On cross-examination by the State, Reineking stated that from the photographs and the line-up, the McBeths identified defendant as one of the men who committed the crime, and that in each case they had done so without any suggestion being given to them as to whom, if anyone, to choose.

On appeal defendant first contends that he was not proven guilty beyond a reasonable doubt. He attempts to establish this proposition by arguing first, that there exists substantial discrepancies between Ruth McBeth's description of the offender and the actual physical appearance of defendant; second, that the eyewitness did not have a sufficient opportunity to view the offender; and third, that the evidence that the stolen bonds were among defendant's papers was insufficient to prove his guilt since many people had access to the papers.

At issue is only the question of identity. It is well settled that a positive identification by a single witness with ample opportunity to observe is sufficient to support a conviction. (People v. Jones, 60 Ill.2d 300, 325 N.E.2d 601; People v. Williams, 60 Ill.2d 1, 322 N.E.2d 819.) In the instant case, the eyewitness positively identified defendant as the offender. Defendant speculates that the witness could only have viewed the offender for no more than five minutes out of the 15 minutes during which the robbery took place. We find that even if such speculation were supported by the record, such would have provided an ample opportunity to observe the offender under the circumstances. However, the record shows that in fact Ruth McBeth observed defendant throughout the robbery. Her description of his activities was extensive and detailed. She observed him under circumstances in which her concentration would be distracted by little else. That discrepancies exist between her description of the offender and the appearance of defendant with regard to facial hair, a facial scar and the weight of defendant does not cast serious doubt upon the identification. Of course, such differences cannot be accurately measured based on a cold record but we note that the trial judge, in denying defendant's motion for a directed verdict, found that the discrepancies at issue were not substantial. In any event, such discrepancies only go to the weight to be afforded to the identification testimony. (People v. Arroyo, 18 Ill.App.3d 187, 309 N.E.2d 804.) Such falls within the province of the jury and we will not substitute our judgment for that of the jury on these questions. (People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631.) Despite whatever probative value may be assigned to the evidence of the bonds, the positive identification testimony of the eyewitness alone is sufficient to support the jury's determination of the guilt of defendant.

Next defendant contends that error was committed when the State brought out in its cross-examination of Detective Reineking that the McBeths had identified defendant from the photographic display and from the line-up. This issue was not raised in defendant's motion for a new trial.

It has long been well established that generally the failure to raise an issue in a post trial motion constitutes a waiver of that issue and such may not then be urged as a ground for reversal on appeal. (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856; People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76; People v. Price, 32 Ill.App.3d 610, 336 N.E.2d 56; People v. Morgan, 44 Ill.App.3d 459, 3 Ill.Dec. 113, 358 N.E.2d 280.) Hearsay identification testimony may constitute plain error where such testimony is utilized as a substitute for an in-court identification, or when it is used to strengthen a weak identification. (People v. Smith, 18 Ill.App.3d 859, 310 N.E.2d 734.) However, in the instant cause we find neither of these conditions existing in the record in light of the positive identification testimony of Ruth McBeth. Since defendant failed to have properly preserved the issue in his post trial motion, we deem him to have waived it. In any event, since defendant opened the door to such testimony by his direct examination of Reineking he cannot now be heard to complain of such testimony on appeal. People v. Denham, 41 Ill.2d 1, 241 N.E.2d 415, cert. denied, 394 U.S. 1006, 89 S.Ct. 1605, 22 L.Ed.2d 784.

Defendant also alleges error in the following cross-examination of defendant by the State:

Q: Do you know Albert Merkel?

A: Yes, sir, he is my cousin.

Q: Did you ever make any statements to him about taking any money or bonds for security?

A: No, sir.

Defense Counsel: Objection. We didn't go into that testimony about Merkel.

The Court: It may stand.

On appeal defendant contends that this questioning constituted an improper insinuation, unsupported by evidence, that defendant made an admission to Merkel as to taking the stolen bonds. However, this issue was not brought to the attention of the trial court during trial and, as defendant's previous contention, was not contained in the motion for a new trial. Consequently, we deem it waived.

In anticipation of his waiver of the two previous contentions, defendant has filed pro se a supplemental brief in this appeal in which he contends that a waiver rule based upon section 116-1 of the Code of Criminal Procedure (Ill.Rev.Stat.1975, ch. 38, par. 116-1), constitutes an unconstitutional infringement of the judicial powers enumerated in the Illinois Constitution of 1970. (See, People v. Hammond, 48 Ill.App.3d 707, 709-716, 6 Ill.Dec. 441, 442-447, 362 N.E.2d 1361, 1362-1367, (dissenting...