{ "id": 3649358, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD E. SMITH, JR., Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "1987-09-04", "docket_number": "No. 5\u201486\u20140163", "first_page": "89", "last_page": "99", "citations": [ { "type": "official", "cite": "160 Ill. App. 3d 89" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "474 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "740" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3494547 ], "weight": 2, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0548-01" ] }, { "cite": "105 S. 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RICHARD E. SMITH, JR., Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE EARNS\ndelivered the opinion of the court:\nDefendant, Richard E. Smith, was convicted by a jury of residential burglary and sentenced to eight years\u2019 imprisonment in the Department of Corrections by the circuit court of Marion County. Defendant appeals from his conviction.\nIn the early morning hours of July 8, 1985, Helen Telford, age 76, was awakened by her mother calling out to her. Mrs. Telford got up out of bed and saw two men standing in her house. She turned on the bedroom light and ordered them to leave. The two refused to go. One of the men began searching the bedroom for money; the other, defendant, stayed with Mrs. Telford. She entered the dining room, turned on the light and attempted to use the telephone to call the police. Even though the phone line had been cut, the second man came over to Mrs. Telford, grabbed the phone away from her and \u201cslung it down.\u201d She proceeded to the kitchen and turned on another light. When she stepped into the hall and approached a hamper with a pair of shoes on it, defendant flung the shoes. Mrs. Telford slapped defendant in the face. He continued to follow her around the house telling her he wanted money until the other man called out, \u201cI got it.\u201d The two men then fled through a back window.\nA short time later the police arrived. Mrs. Telford described the man who followed her as being \u201ckind of chunky-faced\u201d with \u201clight-colored, fuzzy hair.\u201d The other man was described as being \u201ckind of tall and slim,\u201d and wearing a black shirt and headband. Mrs. Telford\u2019s mother was too distraught to describe either.\nTwo days later, Mrs. Telford, while in the Wamac City Hall paying a bill, was approached by Officer Robert Smith. He asked her if she would be willing to look at pictures of possible suspects. Mrs. Telford viewed six photographs or \u201cmug shots\u201d and identified defendant as the man who followed her around the house. Officer Smith told her defendant\u2019s name after she had selected his photo. The name matched that of an individual rumored in the community to be one of the men who broke into her house. Six months later, Mrs. Telford again identified defendant from another photo array. She accused Officer Smith at that time of trying to \u201cmess [her] up.\u201d\nAt defendant\u2019s trial, Mrs. Telford identified defendant in court as being the man who followed her around the house. Patrick Thompson, defendant\u2019s former cell-mate, however, confessed to the crime with which defendant was charged. Thompson related to the jury essentially the same details of the burglary as those told by Mrs. Telford, but confused Mrs. Telford with her mother. Mrs. Telford testified on rebuttal she had never seen Thompson before. The jury chose to believe Mrs. Telford and found defendant guilty of residential burglary.\nDefendant raises several points on appeal. He argues: (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied a fair trial because evidence implicating him in other crimes was improperly admitted; (3) he was denied a fair trial when the arresting police officer testified defendant remained silent after being given Miranda warnings; (4) he was denied a fair trial because the prosecutor gave his own unsworn testimony and misstated evidence presented at trial; (5) he was denied effective assistance of counsel; and finally (6) he is entitled to an additional two days\u2019 credit against his sentence. We take these issues in the order stated.\nDefendant contends he was not proved guilty beyond a reasonable doubt because Mrs. Telford\u2019s identification of him was less than positive and another individual more closely matching her description of the burglar confessed to the crime. Specifically, defendant argues the photographic display was so unduly suggestive that even Mrs. Telford\u2019s in-eourt identification was tainted. This, in addition to Thompson\u2019s confession and the fact that Mrs. Telford was not wearing her glasses during the burglary, establishes in defendant\u2019s eyes that Mrs. Telford was mistaken in her identification of him. We disagree.\nWe first note defendant has waived the issue of the suggestive nature of the photo array because he failed to move to suppress the display, to object to its introduction at trial or to include the issue in his post-trial motion. (See, e.g., People v. Friesland (1985), 109 Ill. 2d 369, 374, 488 N.E.2d 261, 262; People v. Mitchell (1975), 34 Ill. App. 3d 311, 319, 340 N.E.2d 226, 232.) More importantly, however, the photo display was not unduly suggestive. It is true defendant was the only blonde, as well as the only shirtless, suspect in the photo lineup. He -was also five years younger than any other suspect in the array, although most appeared to be fairly young. But similar, if not potentially more prejudicial, photo arrays have been found not to be unduly suggestive so as to taint a subsequent in-court identification or merit reversal. (See People v. Levine (1981), 99 Ill. App. 3d. 141, 426 N.E.2d 215 (defendant\u2019s photo only one in color, only one wearing sunglasses); People v. Johnson (1976), 43 Ill. App. 3d 649, 357 N.E.2d 151 (defendant only Subject in photo array without a shirt on); People v. Hart (1973), 10 Ill. App: 3d 857, 295 N.E.2d 63 (defendant\u2019s picture only one with date on it, in addition to being largest photo in array); People v. Hudson (1972), 7 Ill. App. 3d 333, 287 N.E.2d 297 (defendant\u2019s photo only one in color). See also People v. Harrell (1982), 104 Ill. App. 3d 138, 432 N.E.2d 1163 (seven of nine photos in array older with different edges and backgrounds, defendant longer hair than others, and defendant eight years older than other suspects in actual in-person lineup).) Complete exactitude of features is not required. (People v. Harrell (1982), 104 Ill. App. 3d 138, 145, 432 N.E.2d 1163, 1169.) Moreover, there is no evidence on the record of any improper influence arising out of the police department\u2019s actions. (See People v. Johnson (1976), 43 Ill. App. 3d 649, 658, 357 N.E.2d 151, 158.) Officer Smith did not tell Mrs. Telford defendant\u2019s name until after she positively identified him as one of the burglars, the one whom she slapped in the face.\nEven if we were to find the photo lineup to be unduly suggestive, defendant still cannot overcome the strength of Mrs. Telford\u2019s independent in-court identification. It is clear that, in view of the totality of the surrounding circumstances, Mrs. Telford identified defendant at trial solely on the basis of her memory of the events at the time of the crime. (See People v. McTush (1980), 81 Ill. 2d 513, 520-21, 410 N.E.2d 861, 865; People v. Anton (1981), 100 Ill. App. 3d 344, 348, 426 N.E.2d 1070, 1075; People v. Levine (1981), 99 Ill. App. 3d 141, 158-59, 426 N.E.2d 215, 229.) Mrs. Telford had more than sufficient opportunity to view defendant at close range under good lighting conditions. She turned on several lights in the house with defendant following her from room to room. At one point she even slapped defendant\u2019s face. As she testified, she could not help watching his face, she looked right at it all the time. She could not keep from recognizing him. The fact that Mrs. Telford needs glasses for reading and sewing does not make her identification of defendant any less positive. As she herself stated, \u2018T see awful good.\u201d She described defendant to the police and two days later positively identified him from a photo display. She had no doubt in her mind that defendant was the burglar. (Cf. People v. Cohoon (1984), 104 Ill. 2d 295, 472 N.E.2d 403 (hypnosis used to aid in identification).) She was equally adamant that Thompson was not the burglar whom she slapped.\nDefendant argues, however, the description Mrs. Telford gave to the police after the incident more accurately fits Thompson\u2019s description. Thompson does not have light hair, while defendant does. Thompson is not \u201cchunky-faced,\u201d while defendant is. Rather, Thompson\u2019s face is, in the words of Mrs. Telford, \u201cbroader.\u201d In addition, Thompson\u2019s photo reveals he is overweight, not muscular like defendant. Clearly defendant matches the description better than does Thompson. Precise accuracy in describing the accused is not necessary when the identification of defendant is positive. (People v. Mitchell (1975), 34 Ill. App. 3d 311, 322, 340 N.E.2d 226, 234; People v. Doss (1975), 26 Ill. App. 3d 1, 16, 324 N.E.2d 210, 221. See also People v. Harrell (1982), 104 Ill. App. 3d 138, 146-47, 432 N.E.2d 1163, 1170.) Mrs. Telford had sufficient opportunity to see and observe the burglar who followed her through her house to make a positive identification of that individual at a later time. Minor discrepancies or omissions in her description do not affect the overall validity of her identification. See People v. Doss (1975), 26 Ill. App. 3d 1, 16, 324 N.E.2d 210, 221.\nDefendant points out that Thompson confessed in open court to the burglary of Mrs. Telford\u2019s house. What defendant fails to realize, however, is that it was for the jury to determine the credibility of Thompson\u2019s story in relation to the reliability of Mrs. Telford\u2019s identification. (See People v. Reppa (1982), 104 Ill. App. 3d 1123, 1126, 433 N.E.2d 1091, 1094; People v. Doss (1975), 26 Ill. App. 3d 1, 16, 324 N.E.2d 210, 221.) It should be noted that the State attacked Thompson\u2019s credibility on several grounds. Thompson had shared a cell with defendant before confessing to the burglary. He also had been previously convicted for burglary and felony theft. In his plea agreement on another charge, Thompson worked out a deal that any sentence he might receive for burglarizing Mrs. Telford\u2019s house would run concurrently with the sentence for the crime to which he was then pleading. Thompson testified he understood this to mean he could not serve any additional time for the Telford burglary. A suggestion was also made that he confessed to the Telford burglary in order to get some or all of defendant\u2019s bond money. The jury simply chose to believe Mrs. Tel-ford\u2019s clear and unequivocal identification of defendant and equally clear and unequivocal denial of Thompson being the burglar whom she slapped.\nThe testimony of a single occurrence witness is sufficient to support a conviction, even though such testimony is contradicted by the defendant, when the identification of the accused is positive and the witness is credible. (People v. Son (1982), 111 Ill. App. 3d 273, 281, 443 N.E.2d 1115, 1121; People v. Mitchell (1975), 34 Ill. App. 3d 311, 321-22, 340 N.E.2d 226, 234; People v. Doss (1975), 26 Ill. App. 3d 1, 16, 324 N.E.2d 210, 221. See also People v. Maffioli (1950), 406 Ill. 315, 321-22, 94 N.E .2d 191, 194-95.) Contrary to defendant\u2019s assertion, he was proved guilty beyond a reasonable doubt of the burglary of Mrs. Telford\u2019s residence. See People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E .2d 267, 276-77.\nDefendant next complains he was denied a fair trial by the introduction of his \u201cmug shot\u201d into evidence. Defendant argues the sign hanging around his neck in the photo revealed that he had had a previous connection with the law prior to the instant burglary charge, which necessarily prejudiced the jury against him. See People v. Hudson (1972), 7 Ill. App. 3d 333, 336-37, 287 N.E.2d 297, 301; People v. Hawkins (1972), 4 Ill. App. 3d 471, 474-75, 281 N.E .2d 72, 75.\nAgain we note defendant has waived this issue for appeal by failing to object to the photo\u2019s admission at trial and by failing to raise the issue in his post-trial motion. (See People v. Brents (1983), 115 Ill. App. 3d 717, 719, 450 N.E .2d 910, 912.) Even if such were not the case, mug shots, including those bearing police legends and dates, are admissible to prove the identity of a defendant. (See People v. Dean (1981), 99 Ill. App. 3d 999, 1001, 426 N.E.2d 279, 281; People v. Wheeler (1979), 71 Ill. App. 3d 91, 94, 388 N.E.2d 1284, 1286-87; People v. Mitchell (1975), 34 Ill. App. 3d 311, 318, 340 N.E .2d 226, 232.) Defendant asserted throughout his trial that Mrs. Telford was mistaken in her identification of him because Thompson committed the offense. The photo from which she made her original identification was relevant, therefore, to show the manner in which the identification was made. See People v. Dean (1981), 99 Ill. App. 3d 999, 1001, 426 N.E .2d 279, 281; People v. Adams (1974), 22 Ill. App. 3d 665, 668-69, 318 N.E.2d 278, 280-81.\nA mug shot, with or without a legend, cannot help from being recognized by the average juror. (People v. Wheeler (1979), 71 Ill. App. 3d 91, 97, 388 N.E.2d 1284, 1288; People v. Woodruff (1978), 62 Ill. App. 3d 949, 954, 379 N.E.2d 907, 911.) Any alteration of the photo to block out the legend would not have altered the essential character of the photo as a \u201cmug shot.\u201d But, to assume that defendant was so prejudiced by the admission of his mug shot into evidence as to justify reversal is to engage in pure speculation. The jury not only would have to recognize the arrest date on the legend for what it was, in addition to realizing that the date preceded the date of the in-slant charges, but also would have to adjudicate defendant\u2019s guilt on the basis of this prior arrest rather than on the evidence produced at trial. (See People v. Warmack (1980), 83 Ill. 2d 112, 129, 413 N.E.2d 1254, 1262.) The probative value of defendant\u2019s mug shot far outweighed any possible prejudicial effect. We find no reversible error. See People v. Wheeler (1979), 71 Ill. App. 3d 91, 97-98, 388 N.E.2d 1284, 1289. See also People v. Maffioli (1950), 406 Ill. 315, 322, 94 N.E.2d 191, 195; People v. Brents (1983), 115 Ill. App. 3d 717, 720, 450 N.E.2d 910, 912. Accord People v. Ray (1984), 130 Ill. App. 3d 362, 365-67, 471 N.E.2d 933, 936-37 (fingerprint card with prior arrest date).\nDefendant next argues he was denied a fair trial when the arresting officer testified defendant remained silent after having been given Miranda warnings. The officer stated he picked up defendant and read him his rights. \u201c[H]e didn\u2019t have anything to say.' And I took him to Marion County Jail.\u201d Later, this same officer testified, \u201cI don\u2019t remember specifically where he was arrested. But he was picked up and read his rights and he didn\u2019t wish to talk to me, so he was taken to the county jail.\u201d Defendant argues this testimony was elicited from the officer with the intention that the jury would infer guilt from his silence. We disagree. This testimony was not elicited at all. The prosecutor was questioning the officer with regard to police procedure in defendant\u2019s case. Specifically, the prosecutor asked the officer, \u201cLater that day on July 10 \u2014 did you do anything further with respect to the case?\u201d to which he received the first' reply quoted above. The second mention of defendant\u2019s silence came in response to the question, \u201cWhere did you arrest the defendant?\u201d In neither instance did the prosecutor ask any direct questions pertaining to defendant\u2019s silence. The officer volunteered the information on his own. The prosecutor did not follow up with any questions relating to defendant\u2019s post-arrest silence but rather moved on to other areas. More importantly, he did not argue any inferences of guilt to be gleaned from defendant\u2019s silence nor did he capitalize upon the officer\u2019s testimony in closing argument. The jury could not have been influenced by any such passing references to defendant\u2019s post-arrest silence. We find no prejudicial error. See People v. Lindgren (1982), 111 Ill. App. 3d 112, 117-18, 443 N.E.2d 1129, 1133-34; People v. Douglas (1978), 58 Ill. App. 3d 149, 151-52, 373 N.E.2d 1385, 1387-88. See also People v. Tyllas (1981), 96 Ill. App. 3d 1, 6-7, 420 N.E.2d 625, 629-30. Cf. People v. DeBerry (1977), 46 App; 3d 719, 721, 361 N.E.2d 632, 634; People v. Monaghan (1976), 40 Ill. App. 3d 322, 324-26, 352 N.E.2d 295, 298.\nDefendant argues in-his fourth point on appeal that he was denied a fair trial because the prosecutor gave his own unsworn testimony during cross-examination of Thompson and misstated evidence presented at trial during closing argument. While it is improper for a prosecutor to use his personal and official prestige to get before a jury that which amounts to his own unsworn testimony, not subject to cross-examination (see People v. Ford (1980), 83 Ill. App. 3d 57, 72, 403 N.E.2d 512, 524), we do not believe that is what occurred in this instance.\nThompson confessed to burglarizing Mrs. Telford\u2019s home approximately one month after defendant was arrested for the crime. Shortly after he confessed, Thompson apparently wrote a letter to the prosecutor requesting probation and restitution for the burglary. During cross-examination, the prosecutor asked Thompson one question pertaining to this letter, to which he admitted writing such a letter. No other inquiry was made; no \u2022 other statements were made. This does not constitute an attempt to get the prosecutor\u2019s personal unworn testimony before the jury. The same is true for those questions concerning Thompson\u2019s plea negotiations and what he thought he would serve for confessing to the burglary of Mrs. Telford\u2019s residence. The prosecutor was merely trying to impeach Thompson\u2019s confession. As for closing argument, the prosecutor discussed why Thompson would confess to a crime he did not commit. The prosecutor focused on the sentence Thompson believed he could receive by confessing as was elicited on cross-examination. There was no misstatement of the evidence. The prosecutor merely commented on Thompson\u2019s motivation and credibility, based upon the evidence presented at trial. We find no error in either instance. (See People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267, 281; People v. Martinez (1977), 45 Ill. App. 3d 939, 943, 360 N.E.2d 495, 498.) We further find defendant\u2019s suggestion that the jury, on the basis of the prosecutor\u2019s argument, would convict someone who would actually be punished for burglarizing the home of two elderly women even though that individual did not commit the crime, as opposed to convicting someone who would not receive any punishment who did commit the crime, to be ludicrous, flying in the face of the integrity of the entire judicial system.\nDefendant next contends he was denied effective assistance of counsel because defense counsel failed: (1) to file a motion to suppress the suggestive photo identification; (2) to make any effort to prevent defendant\u2019s photo from being admitted at. trial; (3) to object to inferences made by the prosecutor regarding Thompson\u2019s motive for confessing; and (4) to object to the arresting officer\u2019s comments pertaining to defendant\u2019s post-arrest silence. Looking to the totality of defense counsel\u2019s conduct and the record before us, defendant received effective assistance of counsel.\nWe have previously ruled in this disposition that the photo array was not unduly suggestive. What suggestiveness it did possess was developed by counsel on cross-examination of Mrs. Telford and on closing argument. We cannot say counsel did not deliberately choose not to file a motion to suppress as a matter of trial tactics in order to better attack Mrs. Telford\u2019s in-court identification of defendant. Failure to file a motion to suppress may be an error in judgment, but it does not establish incompetence. People v. Son (1982), 111 Ill. App. 3d 273, 285, 443 N.E.2d 1115, 1124. See also People v. Ortiz (1981), 96 Ill. App. 3d 497, 503, 421 N.E.2d 556, 560; People v. Hines (1975), 34 Ill. App. 3d 97, 100-01, 339 N.E.2d 489, 492.\nDefendant also was not denied effective assistance of counsel when defense counsel failed to object to the introduction of defendant\u2019s photo because the photo was properly admissible, as previously discussed. This same reasoning applies to defense counsel\u2019s failure to object to the prosecutor\u2019s inferences pertaining to Thompson\u2019s confession. Moreover, we note defense counsel twice objected unsuccessfully to the prosecutor\u2019s line of questioning. Finally, counsel\u2019s failure to object to the passing reference to defendant\u2019s post-arrest silence, which constituted nothing more than harmless error, did not rise to the level of ineffective assistance of counsel.\nLooking to the totality of defense counsel\u2019s conduct, defendant was not so prejudiced by counsel\u2019s errors, if any, as to deprive him of a fair trial. (See People v. Albanese (1984), 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246, 1255, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) Defense counsel is not expected to be, nor does due process require that he be, infallible. (People v. Hines (1975), 34 Ill. App. 3d 97, 100, 339 N.E.2d 489, 492.) Defendant\u2019s trial may not have been free from error, but any such errors did not work to deny defendant a fair trial. See People v. Reppa (1982), 104 Ill. App. 3d 1123, 1130, 433 N.E.2d 1091, 1097.\nDefendant raises as his last contention that he is entitled to an additional two days\u2019 credit against his sentence. As the State concedes this issue, under People v. Johns (1984), 130 Ill. App. 3d 548, 474 N.E.2d 739, we find that defendant is entitled to 75 days\u2019 credit, rather than the original 73 days\u2019 credit entered, against his sentence. 130 Ill. App. 3d 548, 549, 474 N.E.2d 739, 740.\nFor the aforementioned reasons, we affirm the judgment of the circuit court of Marion County convicting defendant of residential burglary. We remand, however, for the sole purpose of issuing an amended mittimus to reflect the proper days\u2019 credit consistent with this opinion.\nAffirmed and remanded.\nHARRISON and KASSERMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE EARNS" } ], "attorneys": [ "Appeal from the Circuit Court of Marion County; the Hon. Dennis L. Berkbigler, Judge, presiding.", "Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, and Deborah Buer, law student, for appellant.", "Robert W. Matoush, State\u2019s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD E. SMITH, JR., Defendant-Appellant.\nFifth District\nNo. 5\u201486\u20140163\nOpinion filed September 4, 1987.\nAppeal from the Circuit Court of Marion County; the Hon. Dennis L. Berkbigler, Judge, presiding.\nDaniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, and Deborah Buer, law student, for appellant.\nRobert W. Matoush, State\u2019s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0089-01", "first_page_order": 111, "last_page_order": 121 }