{ "id": 1583490, "name": "People of the State of Illinois, Plaintiff-Appellee, v. John Palmer, Defendant-Appellant", "name_abbreviation": "People v. Palmer", "decision_date": "1970-02-02", "docket_number": "Gen. No. 53,374", "first_page": "471", "last_page": "478", "citations": [ { "type": "official", "cite": "120 Ill. App. 2d 471" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "188 NE2d 692", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "27 Ill2d 191", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358224 ], "year": 1963, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0191-01" ] }, { "cite": "195 NE2d 694", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826279 ], "year": 1964, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0110-01" ] }, { "cite": "226 NE2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "82 Ill App2d 10", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2560951 ], "year": 1967, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/82/0010-01" ] }, { "cite": "252 NE2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "113 Ill App2d 231", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1589954 ], "year": 1969, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/113/0231-01" ] }, { "cite": "244 NE2d 173", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "41 Ill2d 571", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2852493 ], "year": 1969, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0571-01" ] }, { "cite": "388 US 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "388 US 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "388 US 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] } ], "analysis": { "cardinality": 541, "char_count": 10079, "ocr_confidence": 0.632, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.059343807303051256 }, "sha256": "d98e4995f0224aa6d25ea52c49ca385e143a8ede743b6a522423c311e03fbe17", "simhash": "1:a0c43d007a1a9db3", "word_count": 1655 }, "last_updated": "2023-07-14T20:28:55.675631+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. John Palmer, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nIn a jury trial, defendant was found guilty of (1) armed robbery, and (2) aggravated battery, and he was sentenced to the penitentiary on each charge for concurrent terms. On appeal defendant contends (1) his pre-trial motion to suppress the identification testimony should have been sustained; (2) the jury was improperly instructed; and (3) the evidence was conflicting and so unsatisfactory as to raise a reasonable doubt of his guilt.\nEarly in the morning of October 8,1967, at about 1:30, the complaining witness, Donald Smith, left a tavern at Madison and Francisco in Chicago. As he was walking north on Francisco Avenue toward his car, a man, whom Smith later identified as defendant, put his arm around Smith\u2019s neck, stuck something in his back that felt like a gun and said, \u201cThis is a stickup. Don\u2019t turn around.\u201d The man reached in Smith\u2019s pocket and took out $13 and Smith\u2019s wallet. Smith then hit the robber and knocked him against a building. Smith lost his balance and fell across the sidewalk. As Smith was lying on his back on the ground, his assailant fired three shots at him, two of which hit Smith in the back. Smith was taken to a hospital, where he told Police Officer Butler that his assailant was a male Negro, 5' 8\" tall, about 30 years old, and maybe 190 pounds.\nDuring the trial Smith made an in-court identification and also identified his wallet and its contents that were recovered by the police. He said that when he struck his assailant, and while he was lying on the ground, he had a clear view of his assailant\u2019s face because the streetlights were directly shining on it. Also, the assailant fired the shots at him from a distance of three or four feet, at which time Smith observed his assailant\u2019s face and said, \u201cThat\u2019s when I said I\u2019ll never forget it.\u201d He said that during the occurrence he noticed his assailant\u2019s hair was processed and he had a goatee and very unusual blemishes on his face.\nThe record further shows that on October 12, 1967, at about one o\u2019clock in the afternoon, Officers Reynolds and Chorley observed defendant and another man in an alley. One of the officers saw a bright metal object in defendant\u2019s hand which resembled a gun. When the two men noticed the police they fled up a railroad embankment and separated. After arresting both men, the officers found Smith\u2019s wallet halfway up the embankment in open view. On October 20, 1967, in the Criminal Courts Building, Smith picked out defendant from twenty-four men in a bullpen. Defendant\u2019s hair had become curly, but he still had his goatee.\nDefendant testified at the trial and denied the robbery and shooting. He stated he was at home at all times on the day in question. The first time he saw the complaining witness was at the bullpen on October 20,1967.\nInitially considered is defendant\u2019s contention that his motion to suppress the identification testimony should have been sustained because (a) defendant should have been provided with an attorney at the confrontation in the bullpen, and (b) the method of identification was improper and unlawful. Defendant notes that he was arrested on October 12,1967; the confrontation at the bullpen was on October 20, 1967; and he was indicted on October 31, 1967. Defendant contends that the confrontation at the bullpen was a critical stage of the proceedings, which required that the assistance of an attorney should have been provided him, even though he had not been indicted.\nThe testimony for the State at the pretrial hearing of defendant\u2019s motion to suppress the identification testimony shows: On October 15, 1967, Officer Warren Anderson informed Smith the police had a man in custody and they had recovered Smith\u2019s wallet. Officer Anderson showed Smith about six photographs. Smith selected a photograph as that of the defendant. On October 20, 1967, Smith went to the Felony Court with Officer Anderson and Assistant State\u2019s Attorney Neville. They then went to the Felony Court bullpen, in which there were 24 men, of which 18 or 19 were Negroes. The men were not arranged in any particular manner, nor were they wearing any distinctive dress. Smith said, \u201cThey told me that the guy was there in the lockup and if I could point him out. ... I pointed at the defendant, John Palmer,\u201d who was standing \u201cin the very back of the lockup.\u201d Smith made the remark, \u201cThat is the one.\u201d Officer Anderson called defendant over and asked him his name, and defendant replied, \u201cJohn Palmer.\u201d\nAt the pretrial hearing Officer Anderson and Assistant State\u2019s Attorney Neville substantially corroborated Smith\u2019s testimony as to the bullpen confrontation on October 20, 1967. Both testified there were 24 men in the bullpen, and Smith pointed to a man in the back of the bullpen. Anderson also testified that on October 15, and after Smith selected the picture of defendant Palmer, he then told Smith that the picture selected by Smith was of the man found with Smith\u2019s wallet. On October 20, and before the bullpen confrontation, Anderson showed Smith two photographs, and Smith again selected the same picture.\nDefendant argues \u201cthat at any stage from the time defendant was in custody,\u201d assistance of counsel should have been provided him, and \u201csuch assistance was not afforded to the defendant nor was he advised in any manner of his constitutional rights.\u201d Defendant further argues that \u201ca photograph of the accused should never be shown prior to a confrontation\u201d; also, that there never was a lineup and only a \u201cmakeshift confrontation.\u201d Defendant also argues that Smith\u2019s statement \u201cthat he was looking in defendant\u2019s face while he was being shot is a brazen lie,\u201d because the shots could not have been in his back while Smith was looking at defendant\u2019s face.\nDefendant\u2019s authorities on the bullpen identification issue include Stovall v. Denno, 388 US 293; United States v. Wade, 388 US 218; Gilbert v. California, 388 US 263, and Wall\u2019s Eye-Witness Identification in Criminal Cases, pp 8, 68, 70, 74, 75, 76, 77. A review or discussion of these authorities is unnecessary here because we are not persuaded that the identification guidelines stressed in these authorities should be applied here. It is not disputed that this was a preindictment identification, and that defendant did not have counsel at the bullpen confrontation, nor was he informed that he was entitled to the assistance of counsel.\nWe think the determinative question here is whether the bullpen identification \u201cwas so unnecessarily suggestive and conducive to mistaken identification that the defendant was denied due process of law.\u201d People v. Palmer, 41 Ill2d 571, 573, 244 NE2d 173 (1969).\nAfter examining the totality of the circumstances surrounding the bullpen confrontation, we find no unfairness here which deprived defendant of due process of law. Neither the showing of the photographs to Smith prior to the bullpen confrontation nor the bullpen procedure were improper or suggestive. In fact, we think the bullpen confrontation was more fair and less suggestive than a lineup, Also, we believe the testimony shows that Smith had ample opportunity to observe defendant at the time of the occurrence, which provided an adequate independent basis for the in-court identification. People v. Palmer, p 574; People v. Cook, 113 Ill App2d 231, 237, 252 NE2d 29 (1969).\nWe conclude that although we believe the bullpen identification was at \u201ca critical stage of the proceedings,\u201d which might have entitled defendant to the presence of counsel, even though he had not then been indicted, the \u201ctotality of the circumstances\u201d surrounding the clear and convincing identification by Smith, including the photographs and bullpen confrontation, was not fundamentally unfair or prejudicial to defendant and did not deprive defendant of due process. We find the motion to suppress was properly denied.\nNext considered is defendant\u2019s contention that the jury was improperly instructed. This contention is based on the premise that it was error for the court to refuse defendant\u2019s instructions Nos. 12 and 15. We have examined the instructions given to the jury and find that considered as a whole, the given instructions fully and fairly announce the law applicable to the theories of the case, and that the jury was adequately instructed. We find that the court did not abuse its discretion in refusing to give defendant\u2019s instructions Nos. 12 and 15. People v. Turner, 82 Ill App2d 10, 27, 226 NE2d 667 (1967).\nFinally considered is defendant\u2019s contention that the evidence was so conflicting and so unsatisfactory as to raise a reasonable doubt of his guilt. We have examined the evidence in the light of defendant\u2019s contentions and authorities and conclude the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. The victim Smith had ample opportunity to observe his assailant, and his in-court identification was positive and consistent throughout and sufficient to convict, even though the testimony was contradicted by the accused. (People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694 (1964).) Also, the finding of Smith\u2019s wallet within the vicinity of defendant\u2019s arrest was substantial corroboration of Smith\u2019s identification of defendant as his assailant. (People v. Bryan, 27 Ill2d 191, 194, 188 NE2d 692 (1963).) The conflicts in the evidence of the State were not such as to raise reasonable doubt as to defendant\u2019s identity or guilt.\nFor the reasons given, the judgment of the Circuit Court of Cook County is affirmed.\nAffirmed.\nBURMAN, P. J. and ADESKO, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.", "Edward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. John Palmer, Defendant-Appellant.\nGen. No. 53,374.\nFirst District, First Division.\nFebruary 2, 1970.\nGerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.\nEdward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0471-02", "first_page_order": 477, "last_page_order": 484 }