People v. Curl

Mr. JUSTICE TRAPP delivered the opinion of the court: A jury found defendant guilty of armed robbery. The trial court denied his petition for probation and imposed sentence of three to ten years. Defendant appeals the conviction and sentence. It is urged that the court erred in denying defendant’s motion to suppress evidence, i.e., the victim’s identification of the defendant, and defendant asserts issues of whether defendant was represented by counsel at all stages of the proceeding, and whether there was an abuse of discretion in denying probation and in imposing the excessive sentence. The brief and argument do not directly attack the sufficiency of the evidence establishing guilt. In brief, a service station at Dwight was robbed in the early morning hours on March 18, 1969. Defendant together with one, Geary, and a girl, were apprehended at about 6:00 A.M. following a long high-speed chase by the State Police. Through police communications various officers had been advised of the robbery and of the make and style of automobile. As an officer attempted to stop a car of such description the vehicle, which was admittedly driven by defendant, sought to escape. When defendant’s vehicle failed, he and his companions undertook to flee on foot. Defendant was taken into custody after a considerable search of an adjacent field. Geary, who had pleaded guilty and was awaiting sentence, and the girl companion each testified that defendant participated in the robbery. Seabert, the attendant threatened with a gun, identified defendant as the driver of the vehicle who stopped at the station and requested two dollars worth of gasoline. As Seabert finished at the pump and approached for payment, he faced Geary in the back seat holding a gun. Defendant and Geary accompanied Seabert into the station where they took some sixty-three dollars from the cash register. Several officers testified to the attempt to investigate the car, the pursuit and apprehension and of finding some sixty dollars and a wig at the place where defendant’s automobile was abandoned. Defendant testified and admitted spending the evening with Geary and the girl, and driving the car. He denied being in Dwight or participating in the robbery. He explained the strenuous efforts to escape by stating that he had been drinking and did not have a current driver’s license and that he feared that he would be arrested. Defendant first argues that in-court identification by Seabert was improper because defendant did not have an attorney present at the time of such initial identification at the jail by the victim, and that such identification was made without a line-up. The defendant was brought to the jail at about 7:00 A.M. and a few minutes later Seabert and his employer entered. The defendant and Geary were seated in a portion of a public room in the police station with several officers. The evidence is that Seabert immediately identified Geary by saying that he looked like the man who robbed him but that the latter’s hair was longer. As requested, defendant put on the wig in evidence and the identification was affirmed instantaneously. So far as the record shows, the matter was in the investigatory stage, the victim had not been interviewed by officers to obtain a description of the robbers, and the defendant had not been charged with the offense of armed robbery. For police purposes there was only knowledge of a spectacular ride in pursuit of a car fitting the general description of that of the robbers. Defendant relies upon United States v. Wade, 18 L.E.2d 1149, 388 U.S. 218; Simmons v. United States, 19 L.Ed.2d 1247, 390 U.S. 377 and People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152. Wade says that there is no per se exclusion of the in-court identification made without counsel or without line-up, but that the court must determine whether such in-court identification was based upon observation with origin independent of the pre-trial view. (See also People v. Martin, 47 Ill.2d 331, 265 N.E.2d 685, and People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330.) The test stated in Simmons is whether the pretrial view is: “* * * so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” In Wade and Blumenshine, the judgment of the trial court was vacated and the cause remanded for further hearing because the reviewing court could not reach “an informed opinion” from the record, as to whether the in-court identification was independent of the pre-trial identification viewing. In this case a hearing was had upon defendant’s motion to suppress and it appears that he introduced such evidence as he wished. Other parts of the record supply additional evidence so that the issue can be reviewed here. People v. Martin, 47 Ill.2d 331, 265 N.E.2d 685, and People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330. We have considered the evidence upon the opportunity of the witness to observe defendant, the approximate duration of such observation and the lighting conditions, the lapse of time between the robbery and the viewing, and the presence or absence of suggestive police influence. Simmons v. United States; United States v. Wade; People v. Perry and People v. Martin. The record shows that the filling station area and the station itself was brightly lighted with fluorescent lights, that Seabert observed the defendant seated in the car as he filled the tank, and again as he was marched under the gun into the station and held at the cash register. It would seem fair to conclude that the observation extended over several minutes. The initial identification was within two or three hours of the robbery. If there is any suggestion of influence it is limited according to defendants testimony to a question as to whether this was the man. It appears that Seabert spontaneously noted an apparent difference in the length of the robbers hair which was reconciled when the wig was worn. We note that such was not a violation of the Fifth Amendment privilege. (See United States v. Wade.) These facts of record support a conclusion that the identification at trial had an origin independent of the view at the jail, and we need not consider the question of harmless error. See United States v. Wade. Defendant contends that the court erred in denying probation and that the minimum sentence imposed is excessive. Initially, we note that the trial court observed defendant’s demeanor during the trial and heard his testimony. In the hearings upon the petition for probation and for aggravation and mitigation, he continued to deny his participation in the robbery, affirmed that Geary’s testimony was false and perjured and that all of the other eye-witness testimony was wrong. There is no evidence of any step toward rehabilitation through acknowledgment of guilt. (People v. Darrah, 33 Ill.2d 175, 210 N.E.2d 478.) The absence of a prior criminal record does not necessarily outweigh the factor of acknowledgment of guilt, either upon the issue of probation or of sentence. It is argued that the trial court had reached a pre-determined conclusion that probation would be denied, citing People v. McAndrew, 96 Ill.App.2d 441, 239 N.E.2d 314. In that case the court appears to have considered many matters outside of the record and to have ignored the significance of the psychiatric report upon the defendant. It suffices to note that the trial court here did grant probation to a co-defendant where the record included affirmative factors supporting such disposition. The asserted issue of defendant’s representation by counsel throughout the trial is without merit. The public defender who was appointed to represent defendant had resigned foUowing the trial, but he continued to serve as counsel of record throughout tiie post-trial motions, filed the petition for probation and presented evidence both at the hearing and in aggravation and mitigation. The record shows that he acted with great diligence and vigor. We do not regard his status as counsel of record as depending holding the office of public defender. The issue arises upon the showing in the record that just prior to sentence, counsel stated that since he was no longer public defender, he was withdrawing as counsel. No order allowing such withdrawal appears of record. In the absence of anything to the contrary, we presume that counsel continued to be present at the sentencing which immediately followed. (People v. Pittman, 28 Ill.2d 100,190 N.E.2d 802.) It is a fair inference that counsel was withdrawing so far as further appeal was involved. The judgment is affirmed. Judgment affirmed. SMITH, P. J., concurs.