{ "id": 2682782, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Frederick Sanders (Impleaded), Defendant-Appellant", "name_abbreviation": "People v. Sanders", "decision_date": "1973-09-26", "docket_number": "No. 58393", "first_page": "826", "last_page": "830", "citations": [ { "type": "official", "cite": "14 Ill. App. 3d 826" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "388 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] }, { "cite": "295 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "year": 1968, "opinion_index": 0 }, { "cite": "34 Ill.2d 575", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2879494 ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0575-01" ] } ], "analysis": { "cardinality": 504, "char_count": 8164, "ocr_confidence": 0.737, "pagerank": { "raw": 5.747034550892732e-08, "percentile": 0.35974510483043604 }, "sha256": "8d0ddd3ad15fb6c5234aaa47684a6df80e42c65e27ebf8e93be9f0acc07bc25f", "simhash": "1:2d5cb3e6717b8ede", "word_count": 1361 }, "last_updated": "2023-07-14T18:15:06.021527+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Frederick Sanders (Impleaded), Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE ADESKO\ndelivered the opinion of the court:\nDefendant was charged in Indictment No. 70-2841 with the offense of attempt robbery. He was found guilty in a bench trial and sentenced to the State Penitentiary for a term of two to five years. He was also charged in Indictment No. 70-2840 with armed robbery to which he pleaded guilty and Sentenced to two to five years. Both sentences were to be served contemporaneously. This appeal is the subject of Indictment No. 70-2841. In it defendant raises two issues: First, that defendant was not properly advised of his rights to a jury trial and that he did not voluntarily waive those rights; and second, that the lineup identification of the defendant was suggestive and conducive to mistaken identity.\nA brief statement of facts is in order. On May 10, 1970, at 11 P.M., two men walked into Brown\u2019s Fried Chicken take-out store. When they entered there was one customer, Patrick O\u2019Shea, waiting to pick up his order. O\u2019Shea saw the two men. An employee, Sam Lupo, directed the two men to another counter where orders were taken. O\u2019Shea received his order and left. He proceeded out of the parking lot and drove around the block intending to return to the parking lot. A brown Oldsmobile came down the street with no lights, travelling fast. O\u2019Shea testified that the occupants of the Olds looked like the two suspects he saw enter the chicken store.\nMeanwhile in the chicken store Bill Murray, the owner of the store, after a short conversation with one of his employees and suspecting something was wrong climbed atop a set of shelves to get his pistol. He then hung over the top of the shelves, which were about seven feet high, and saw the two men who had entered the store pull out guns, aim them at Sam Lupo\u2019 and announce a \u201cstick-up.\u201d Mr. Murray then said, \u201cStop, don\u2019t move. I have a gun, and I\u2019ll shoot. Turn around and back out. Put the guns away.\u201d They turned around towards Mr. Murray and backed past his vantage point, out of the door. When the police arrived Murray described the men as being black, males, moustached, wearing black hats and black shirts. He described defendant, Sanders, as wearing dark pants, 170 to 180 lbs. in weight, five feet nine to ten inches in height and carrying a small chrome .25 caliber revolver. The description given by Mr. Lupo and Mr. O\u2019Shea concurred with that given by Mr. Murray who also stated that \u201cthe inside lighting was excellent\u201d and he got a good view of their faces.\nBetween 11:10 and 11:20 two police officers were on patrol about ten or eleven blocks from the scene of the crime. They spotted a vehicle matching the description given in a report broadcasted on the police frequency and stopped it. Officer Nowdowski observed defendant Sanders with a bulge in his pocket and found a \u201cloaded .25 caliber automatic.\u201d Another loaded pistol was found under the car seat. Defendant Sanders stated that he found a briefcase with four pistols in it and was walking to the police station to turn it in. Sanders saw his friend Harris drive by and asked him to drive to the station. Sanders then decided he needed other identification so they turned around to go back to defendant\u2019s apartment. That is why the car was headed away from the poHce station and the scene of the crime, at the time the defendant was apprehended.\nDefendant was transported to the police station where after being advised of his constitutional rights he stated that he was thrown on the floor for ten minutes and kicked. But when he identified his picture in the Hneup, which preceded immediately the aHeged beating, defendant Sanders admitted that there was not dirt on his shirt or bruises on his face.\nWe disagree with defendant\u2019s claim on appeal that he was improperly advised of his right to a jury trial and that he did not knowingly and understanding^ waive a jury trial. The trial record reads as follows after the trial commenced:\n\u201cTHE COURT: Sign the jury waiver. For the record, Mr. Sanders and Mr. Harris, you each realize that you have a right to \u00e1 trial by jury, you understand that?\nMr. HARRIS: Yes sir.\nMr. SANDERS: Yes sir.\nTHE COURT: And, by signing this document entitled \u2018Jmy\nWaiver, you are submitting the case to the court for its decision rather than jury of twelve men, you understand that?\nMr. HARRIS: Yes sir.\nMr. SANDERS: Yes sir.\nTHE COURT: You may proceed, Mr. Boback. (Assistant State\u2019s Attorney)\u201d\nAttorney. Chester Blair, a private attorney chosen by the defendant appeared for him and was sitting next to the defendant during the admonition. Mr. Blair discussed the jury waiver with his client and concurred with the in-court waiver. We are mindful of the fact that in Illinois there is no precise standard to determine if a defendant has made an understanding jury waiver and that the facts of each particular case must be examined.\nDefendant cites, in support of his contention, the case of People v. Rivera, 34 Ill.2d 575, which is readily inapplicable. In Rivera, the trial judge appeared to be upset after defendant first asked for a bench trial and changed his mind the next day. The instant trial of Sanders is in no way comparable to the Rivera decision.\nDefendant also cites Boykin v. Alabama, 295 U.S. 238 (1968), dealing with a guilty plea, to show that a silent record is insufficient to demonstrate intelligent waiver of a constitutional right. The record in the instant Sanders\u2019 trial is not silent on the question of a jury waiver. The trial court explained to the defendant that he had a right to a trial by jury. Defendant replied that he understood. The trial court then explained that by signing the waiver defendant was \u201csubmitting the case to the court for its decision rather than (a) jury of twelve men.\u201d Defendant replied that he understood that. There was no objection to the court\u2019s method of admonition by either the defendant or his counsel. It is our opinion that the defendant knowingly and understandingly waived trial by jury.\nWe also disagree with defendant\u2019s second claim on appeal that the lineup identification was suggestive and conducive to mistaken identification of the defendant. Subsequent to the attempted robbery Mr. Lupo described the assailants as having worn black short-sleeve shirts during the attempted robbery. Defendant contends that the lineup identification was unfair, because defendants were the only two participants wearing black shirts. The test to determine the propriety of a pretrial identific\u00e1tion is stated in Stovall v. Denno, 388 U.S. 293 (1967). The court must examine the totality of the circumstances surrounding the lineup to determine whether it was \u201cso unnecessarily suggestive and conducive to irreparable mistaken identification\u201d as to constitute a denial of due process. In examining the totality of the surrounding circumstances, and the unwaivering identification by the three eyewitnesses, the lineup was not \u201cunnecessarily suggestive and conducive to irreparable mistaken identification.\u201d\nThe three witnesses were able to observe defendant under excellent lighting conditions within the carry-out store. Mr. Murrays perch, atop the shelving bins placed him in an excellent position to observe the defendant. Mr. O\u2019Shea also saw defendant well enough to warn Mr. Lupo of his suspicion about the defendant. Mr. Lupo talked to the defendant when he entered with his partner. This opportunity gave Mr. Lupo adequate time to observe the defendant.\nWe are satisfied that the defendant was properly identified and there is no basis for defendant\u2019s claim that his identification was conducive to mistaken identity.\nThe decision of the trial court is affirmed.\nJudgment affirmed.\nBURMAN, P. J., and DIERINGER, J., concur.", "type": "majority", "author": "Mr. JUSTICE ADESKO" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago, (Xavier G. Velasco and Suzanne M. Xinos, Assistant Public Defender, of counsel,) for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago, (Kenneth L. Gillis and Larry A. Sultan, Assistant State\u2019s Attorneys, of counsel,) for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Frederick Sanders (Impleaded), Defendant-Appellant.\nNo. 58393\nFirst District (4th Division)\nSeptember 26,1973.\nJames J. Doherty, Public Defender, of Chicago, (Xavier G. Velasco and Suzanne M. Xinos, Assistant Public Defender, of counsel,) for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago, (Kenneth L. Gillis and Larry A. Sultan, Assistant State\u2019s Attorneys, of counsel,) for the People." }, "file_name": "0826-01", "first_page_order": 848, "last_page_order": 852 }