{ "id": 2630363, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH WHEATLEY, Defendant-Appellant", "name_abbreviation": "People v. Wheatley", "decision_date": "1989-05-12", "docket_number": "No. 1\u201487\u20140044", "first_page": "590", "last_page": "612", "citations": [ { "type": "official", "cite": "183 Ill. App. 3d 590" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "532 N.E.2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 743", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621412 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0743-01" ] }, { "cite": "362 N.E.2d 109", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3368041 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0548-01" ] }, { "cite": "369 N.E.2d 392", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 246", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3404743 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0246-01" ] }, { "cite": "390 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581247 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0591-01" ] }, { "cite": "269 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "48 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907985 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/48/0239-01" ] }, { "cite": "394 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3271857 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0112-01" ] }, { "cite": "194 N.E.2d 280", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823362 ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0511-01" ] }, { "cite": "389 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984278 ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0019-01" ] }, { "cite": "446 N.E.2d 1229", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 143", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626907 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0143-01" ] }, { "cite": "450 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556746 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0322-01" ] }, { "cite": "486 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 104", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568688 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0104-01" ] }, { "cite": "302 N.E.2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937684 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0172-01" ] }, { "cite": "379 N.E.2d 847", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3337746 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0315-01" ] }, { "cite": "355 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642267 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0408-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "212 N.E.2d 346", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 2d 82", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5293999 ], "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/64/0082-01" ] }, { "cite": "509 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3504575 ], "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0344-01" ] }, { "cite": "221 N.E.2d 232", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379196 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0564-01" ] }, { "cite": "289 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393878 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0564-01" ] }, { "cite": "492 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "143 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5665573 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/143/0252-01" ] }, { "cite": "10 Ill. Dec. 547", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1977, "opinion_index": 1 }, { "cite": "367 N.E.2d 1313", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "67 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811071 ], "year": 1977, "opinion_index": 1, "case_paths": [ "/ill-2d/67/0564-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 3, "year": 1977, "opinion_index": 1, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "358 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5280176 ], "opinion_index": 1, "case_paths": [ "/ill/358/0058-01" ] }, { "cite": "400 Ill. 309", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5306369 ], "pin_cites": [ { "page": "315-16" } ], "opinion_index": 1, "case_paths": [ "/ill/400/0309-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "127 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564025 ], "opinion_index": 1, "case_paths": [ "/ill-2d/127/0302-01" ] }, { "cite": "81 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5480573 ], "opinion_index": 1, "case_paths": [ "/ill-2d/81/0001-01" ] }, { "cite": "95 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111155 ], "opinion_index": 1, "case_paths": [ "/ill-2d/95/0404-01" ] }, { "cite": "369 N.E.2d 392", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "54 Ill. App. 3d 246", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3404743 ], "weight": 2, "pin_cites": [ { "page": "251" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/54/0246-01" ] }, { "cite": "390 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 1 }, { "cite": "71 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581247 ], "year": 1977, "pin_cites": [ { "page": "595" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/71/0591-01" ] }, { "cite": "48 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907985 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "249" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/48/0239-01" ] } ], "analysis": { "cardinality": 1515, "char_count": 52543, "ocr_confidence": 0.78, "pagerank": { "raw": 1.3416756754753433e-07, "percentile": 0.6314238783805542 }, "sha256": "5ff005df08696bf3f5834a4f758464febddad083de72411965c2e50ad8417551", "simhash": "1:b37370e73eae96b3", "word_count": 8657 }, "last_updated": "2023-07-14T17:15:47.196010+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. KENNETH WHEATLEY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE MURRAY\ndelivered the opinion of the court:\nAfter a jury trial, defendant Kenneth Wheatley was convicted of armed robbery and sentenced to six years\u2019 imprisonment. On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt because the complaining witness\u2019 identification of him was inadequate and unreliable and a lineup from which the witness identified him was the product of suggestive procedure; (2) he was denied a fair trial because a number of comments by the State during closing and rebuttal arguments were not based on the evidence or were made as a personal attack on the integrity of defense counsel; and (3) the trial court erred in refusing to give his tendered instruction on identification to the jury. For the reasons set forth below, we affirm.\nDefendant and his brother, Robert Wheatley, were initially charged with armed robbery, armed violence and unlawful use of weapons in connection with the October 9, 1985, robbery of complainant, Richard Gillis (Gillis). Defendant elected to be tried by a jury and Robert elected to be tried simultaneously by the court. Prior to jury selection, the State moved to strike the unlawful use of weapons charge against defendant and nolle prossed the armed violence count. Defendant subsequently filed pretrial motions challenging the legality of his arrest and the propriety of the lineup which he claimed was conducted in a suggestive manner. Both motions were denied.\nAt trial, the evidence disclosed that Gillis left his Chicago Loop law office at 10:15 p.m. on October 9, then took an el train to Fullerton Avenue and then, while walking north on Sheffield toward his home on Wrightwood, he saw two black males standing on each side of the sidewalk (both sides of the street were lit by streetlights). One man who was wearing a brown jacket approached him; the man was about 5 feet 9 inches and weighed approximately 150 pounds. At a distance of two feet, the man asked Gillis if he knew the location of a particular address. Upon looking at the man\u2019s face, Gillis noticed that he had a slight mustache and a beard. Gillis did not answer and instead began to walk around the man to his left. The man also moved to the left, outflanking Gillis. He pulled out a chrome-colored gun and told Gillis, \u201cGive us your money [expletive],\u201d and Gillis responded, \u201cAlright, I\u2019ll give you my money.\u201d The man then told Gillis to \u201cGet into the alley,\u201d Gillis stated he would give the man his money \u201cright here,\u201d and the man again told Gillis to get into the alley. At that point, the second man, who had been standing behind Gillis, pulled him into the alley. The alley was 15 to 20 feet wide with a light 25 feet from the door of a building and 15 feet from the surface. The man directed Gillis to a door leading to a building off the alley and they pushed him through the doorway into a vestibule area with a stairway off to the right leading to the basement. The vestibule area had one bare lightbulb overhead and light was coming in through the glass in a door that led to another part of the building. At that point the other man, who had a blue or black steel revolver with a rubber band on the barrel, started going through Gillis\u2019 pockets, which contained paper, pens and $17 in cash. The other man subsequently told Gillis, \u201cYou got some money. I know you got more money.\u201d Gillis responded that he did and took an envelope from his boot. The envelope contained $140, a $35 check, and a deposit slip from the Lakeview Trust and Savings Bank. Thereafter, Gillis was told to go downstairs and not to come out for 5 to 10 minutes. However, after a minute or so, he came upstairs, looked around, saw that no one was there, and went home and immediately called the police. The time was approximately 10:45 p.m.; the robbery had taken about five minutes.\nAround midnight, Gillis received a call from the police, who told him they had recovered his bank deposit slip and some cash. Gillis went to the police station and viewed a lineup of six men; Robert Wheatley, defendant\u2019s brother, was in the first position, Ted McLeod was in the third position, Vincent Wheatley, defendant\u2019s brother, was in the fifth position, and defendant was in the sixth position. Gillis identified defendant as one of the men who had robbed him. Gillis acknowledged the fact that the person he identified in the lineup was not wearing a brown jacket and blue jeans like the man he described as one of the robbers, but rather a black leather jacket and grey pants.\nPolice officer Sergio Rajkovich testified that on October 9, 1985, at approximately 11:20 p.m., he and his partner, Officer Reno Baiocchi, were in a squad car traveling east on Armitage Avenue when they observed a Pontiac without a license plate also going east on Armitage. After the Pontiac made a left turn on Halsted Street, the officers curbed it. Four men were in the car: Robert Wheatley, the driver; Ted McLeod, the front seat passenger; defendant, who was in the rear seat behind McLeod; and Vincent Wheatley, who was behind the driver. The officers got out of their car, and Officer Baiocchi asked Robert Wheatley for his driver\u2019s license and was told he had none. Officer Rajkovich then approached the passenger side of the car and asked the other occupants if one of them had a license to drive the car because Robert was being arrested. Defendant responded that he had a license. As defendant exited the car, Officer Rajkovich, who had his flashlight pointing inside the car at defendant, saw a chrome-plated gun (a .357 magnum) on the seat where defendant had been sitting. He then ordered everyone out of the car and handcuffed them. In searching the rear seat of the car, Officer Rajkovich discovered a second gun (a blue .22 caliber steel revolver) where Vincent had been sitting, a brown jacket, and a black hat. In the front seat, Rajkovich found a Lakeview Bank deposit slip with Gillis\u2019 name, address and telephone number on it. At this point, Rajkovich placed the four men under arrest, advised them of their Miranda rights, and conducted a pat down search. After being advised of his rights, defendant admitted ownership of the chrome-plated .357 magnum handgun.\nThe police took the men to the 18th District police station where they were again searched. Sixty-one dollars (three-$20 bills and one-$l bill) were recovered from Vincent and $40 (one-$20 bill, one-$10 bill, one-$5 bill and five $1 bills) from McLeod; Robert and Kenneth did not have any money on them. Officer Rajkovich prepared a booking sheet on each man. Defendant\u2019s sheet indicated that he was 21 years of age, weighed 145 pounds, was 5 feet 9 inches tall, and had brown eyes and black hair.\nOfficer Kevin Murphy testified on defendant\u2019s behalf that on October 9 he was assigned to investigate an armed robbery and he arrived at Gillis\u2019 home at approximately 10:55 p.m. Gillis subsequently described the two armed robbers as being \u201cmale blacks, in their early twenties, approximately 5 feet 9 inches and 150 pounds.\u201d Gillis further stated that the first man wore a brown jacket and jeans and the second wore a dark jacket and blue jeans. Gillis did not mention any facial characteristics of either offender.\nVincent Wheatley testified that on October 9 he was at his mother\u2019s house on the southside of Chicago with Ted McLeod and his two brothers, Robert and defendant. When he learned they were going to deliver phone books on the northside, he asked if he could go along. The group took Vincent\u2019s car and made three stops, but only Robert and McLeod got out of the car to deliver the phone books; neither Vincent nor defendant ever exited the car. The third stop was at 950 Altgeld and Robert and McLeod returned from their delivery within three to five minutes. The group then was driving back to the south-side when they were stopped by the police. While pulling over to the curb, McLeod handed Robert a gun and Robert handed two guns back to Vincent, telling him to \u201cput the guns up.\u201d He then placed one gun behind himself and one behind defendant. Vincent further testified that he never heard defendant tell the police that he had a driver\u2019s license, that defendant in fact does not drive, nor did defendant make any other statements to the police. Vincent also described defendant as having reddish blonde hair and green eyes. He further stated that the brown coat found in the back seat of his car was put there by a female friend of his one week prior to October 9 and that defendant had never worn it.\nDefendant testified on his own behalf, relating the identical version of the events leading up to the police stop as described by Vincent. He also stated that he never told the police he had a driver\u2019s license or that he told Officer Rajkovich and an assistant State\u2019s Attorney that the chrome-plated gun belonged to him. He described himself as having \u201cBrown, I mean not brown, green eyes\u201d and sandy brown hair, with two missing teeth in the front of his mouth. (Defense counsel \u201cpublished [defendant] to the jury to demonstrate that [he] has green eyes and reddish hair and that he is missing two teeth from the front of his mouth.\u201d) (Emphasis added.) He further stated that on October 9 he was wearing white pants, a black T-shirt and a black leather jacket. On cross-examination, over defense counsel\u2019s objection, the State had defendant try on People\u2019s exhibit No. 7, the brown jacket. Thereafter, the prosecutor stated, \u201cRecord will reflect that jacket fits.\u201d Defense counsel objected and the court sustained the objection, directing the jury to disregard the comment.\nDuring the jury instruction conference, the court refused to give defendant\u2019s tendered \u201cnon-IPI\u201d instruction regarding the reliability of eyewitness identification. Following closing arguments, the jury deliberated and found defendant guilty of armed robbery for which the court sentenced him to six years\u2019 imprisonment. This appeal followed.\nDefendant first argues that he was not proved guilty beyond a reasonable doubt. Specifically, he contends that his identification as one of the robbers was insufficient to sustain his conviction because it was based on inadequate and unreliable observations by Gillis and a suggestive lineup identification. Defendant points out that Gillis told Officer Murphy that his assailants were 5 feet 11 inches, 150 pounds, with brown eyes and black hair as opposed to the fact that defendant is 5 feet 9 inches, had reddish brown hair and green eyes; that the man with the chrome-plated gun was wearing a brown jacket and blue jeans as opposed to the fact that defendant was wearing a black leather jacket and light-colored pants and it is unlikely defendant had an opportunity to change his clothes; and Gillis did not mention to Murphy any facial characteristics of the offender such as a slight mustache, beard and missing front teeth which in fact was defendant\u2019s appearance when he was arrested.\nDefendant further contends that the lineup identification was tainted with suggestibility because prior to the lineup Gillis had been informed by the police that his property had been recovered from persons in a vehicle that had been stopped. Defendant also asserts that the lineup identification was unreliable in light of the fact that Gillis was fatigued after working a long day, the robbery only lasted five minutes during which it was raining and Gillis was wearing glasses, and the lighting conditions were questionable.\nOn the other hand, defendant argues that his alibi that he never exited the car that evening, as corroborated by his brother Vincent, outweighed Gillis\u2019 identification testimony. He further points out that Gillis\u2019 deposit slip was found on the floor in the front seat of the car at Robert\u2019s feet and proceeds from the robbery were found on McLeod, that Robert and McLeod had the weapons discovered in the car which they had passed back to Vincent to \u201cput up,\u201d and that no fingerprint analysis connected him to the weapons. Hence, defendant contends that Robert and McLeod were \u201cthe most likely suspects.\u201d Lastly, defendant asserts that Officer Rajkovich\u2019s testimony that he stated he had a driver\u2019s license and that he admitted to owning the chrome-plated gun is \u201cincredible.\u201d\nIt is well established that a positive identification by a single witness is sufficient to sustain a conviction. Where a witness had a sufficient opportunity to view an accused, showed an adequate degree of attention to an assailant\u2019s characteristics, described the assailant with a reasonable degree of accuracy, displayed a sufficient amount of certainty in identifying his assailant and identified the accused within a reasonable period of time following the crime, an identification is considered positive and reliable. (People v. Taylor (1986), 143 Ill. App. 3d 252, 492 N.E.2d 1011.) The sufficiency, weight and credibility of an identification witness\u2019 testimony is for the jury to determine. A reviewing court will not set aside a jury\u2019s verdict unless the evidence was so improbable as to raise a reasonable doubt as to a defendant\u2019s guilt. People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.\nIn the instant case, we do not find that the identification testimony was so doubtful, vague and uncertain as to be overcome by defendant\u2019s alibi that he never exited the car on the night of the robbery. (See People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232.) Gillis clearly had a sufficient opportunity to view defendant. When he initially encountered defendant, defendant was within one to two feet of an overhead streetlight and there was a corresponding light on the other side of the street. When defendant approached him holding a piece of paper, defendant was only two feet away from him and he could see defendant\u2019s face. When defendant pushed him into the alley, which was lit by a light over a building doorway, and subsequently through the doorway, defendant was in front of him so that he was looking directly at defendant. While defendant\u2019s accomplice went through his pockets for money, defendant continued to hold the chrome-plated gun on him in the vestibule area of the building, which was lit by a bare lightbulb and light coming from a doorway in an adjoining part of the building. During the five minutes in which the robbery occurred, therefore, Gillis had a continuing clear view of defendant.\nGillis also demonstrated an adequate degree of attention to defendant, describing him within a reasonable degree of accuracy. At trial, Gillis testified that he was robbed by a black male with black hair and brown eyes, 5 feet 9 inches, 150 pounds, with a slight mustache and beard growth, and wearing a brown jacket and jeans. The booking sheet prepared by Officer Rajkovich described defendant as 5 feet 9 inches, weighing 145 pounds, with black hair and brown eyes; a brown jacket was recovered from the Pontiac from the rear seat where defendant had been seated; and a chrome-plated gun, which Gillis had described, was also found on the rear seat where defendant had been seated.\nWe further observe, as apparently did the jury, that the discrepancies in Gillis\u2019 positive identification of defendant as one of the robbers weighed more heavily in Gillis\u2019 favor in light of the confusion expressed in the testimony of both parties\u2019 witnesses. For example, although defendant emphasized the fact that Officer Murphy\u2019s police report, as taken from Gillis, indicates defendant\u2019s height as 5 feet 11 inches, instead of 5 feet 9 inches as testified to by Gillis at trial, the record discloses that on cross-examination the State kept referring to the height of the robbers as 5 feet 9 inches, which Murphy confirmed and, additionally, on redirect examination, defendant\u2019s own counsel referred to the height of the men as 5 feet 9 inches, which Murphy confirmed again. Similarly, we note that although Murphy\u2019s report indicated that the man carrying the chrome-colored gun was wearing blue jeans, Murphy also testified that he did not in fact recall whether Gillis had told him the man was wearing jeans or blue jeans and that he could have written this fact down inaccurately. (Adding to this confusion is the fact that defendant\u2019s pants were also described as gray, off-white and light-colored.) With respect to the discrepancies concerning defendant\u2019s eye and hair color and whether defendant\u2019s missing teeth were so prominent that Gillis should have noticed same, we note that at trial even defendant appeared uncertain about his own eye color; at first he stated his eyes were brown, then green and described his hair as sandy brown (while on appeal his brief describes his hair as reddish brown). Like Gillis\u2019 description of defendant, even Officer Rajkovich, who had a clear opportunity to view defendant when he arrested him, indicated in his booking report at the arrest scene that defendant\u2019s hair color was black and his eye color brown. We further note that the fact that Gillis allegedly did not mention the fact to Officer Murphy that defendant had a slight mustache and beard and did not otherwise notice that defendant had two front teeth missing were matters for the jurors to weigh in light of the foregoing when defense counsel published defendant to them; it was for them to resolve the conflicts in the evidence and the weight to be accorded the testimony. They apparently decided that Gillis\u2019 description of defendant was sufficiently accurate and we see no reason to disturb their determination.\nWe further observe that notwithstanding the fact that defendant was not wearing the brown jacket when arrested, the brown jacket was found in the rear seat of the car where defendant had been seated. In addition, the chrome-colored gun was found on the car seat where defendant had been sitting and Officer Rajkovich and an assistant State\u2019s Attorney testified that defendant had told them the gun was his.\nIn the same vein, Gillis showed a reasonable degree of accuracy in identifying defendant within a short time after the robbery. The robbery occurred at approximately 10:30 p.m., Gillis called the police at 10:45 p.m., and, at 1 a.m., Gillis viewed a lineup which included defendant. After 5 to 10 minutes, Gillis identified defendant, the sixth in position, as one of the robbers, notwithstanding the fact that defendant was wearing a black leather jacket and light-colored pants, rather than the brown jacket and \u201cjeans\u201d which Gillis had described to Officer Murphy; apparently Gillis identified defendant based on his total impression of him, rather than on his clothes alone. (See People v. Dean (1987), 156 Ill. App. 3d 344, 351, 509 N.E.2d 618 (identifications are based upon the \u201ctotal impression\u201d of the witness rather than a single distinguishing feature); People v. Ervine (1965), 64 Ill. App. 2d 82, 87, 212 N.E.2d 346 (\u201c[I]t is contrary to human experience to make an identification by noticing first the separate features, hair, or clothes of a person, and then, somehow, running off a total to determine recognition or non-recognition. Ordinarily all features are viewed at once and the recognition made instantaneously or not at all. This is one of the reasons why minor discrepancies in identification do not require reversal\u201d).) Most importantly, there is nothing in the record to suggest that Gillis was uncertain about his identification of defendant.\nWe next briefly note that the suggestibility of the lineup procedure was the subject of a motion to suppress filed by defendant prior to trial. The court denied the motion and defendant did not raise any issue as to the correctness of the court\u2019s ruling. In any event, however, we find no suggestibility based on the facts before us. Prior to viewing the lineup, the only communication of Gillis from the police was that they had recovered his bank deposit slip and some cash from \u201csome persons\u201d in a vehicle that they had stopped. Officers other than those who arrested defendant conducted the lineup, which was composed of six men, including defendant, Robert, Vincent and McLeod. Each man was instructed to step forward, turn and return to his position. Gillis positively identified defendant after 5 to 10 minutes; he did not identify Robert, Vincent or McLeod as the robber with the chrome-plated gun, who also were the victims of the allegedly suggestive lineup procedure. Defendant\u2019s further contention that Gillis was fatigued etc., and his lineup identification therefore unreliable, is pure speculation, and the lighting conditions, as discussed above, did in fact give Gillis a clear opportunity to view defendant. Based on these facts, and the factors in determining the reliability of Gillis\u2019 identification of defendant (opportunity to view, degree of attention and accuracy of the description, level of certainty, and the time between the crime and the confrontation), we, like the trial court, find no improper suggestibility influenced the lineup identification procedure.\nIn light of the foregoing, and since the weight to be accorded the credibility of the witnesses was for the jury, we hold that the evidence was not so improbable as to raise a reasonable doubt of defendant\u2019s guilt.\nDefendant\u2019s second argument is that he was denied a fair trial because of improper and prejudicial comments made by the State in its closing and rebuttal arguments, which were not based on the evidence or were made as a personal attack on the integrity of defense counsel. Specifically, defendant complains of nine comments, i.e., two comments stating that the brown jacket \u201cfit\u201d defendant; a comment that defendant was wearing a brown jacket and jeans when in fact defendant was wearing a black leather jacket and light-colored pants; that \u201cRichard Gillis knows armed robbers change their clothes\u201d; that even though defendant said his \u201cbottom\u201d teeth were missing, \u201c[tjhere isn\u2019t a tooth missing\u201d; the State\u2019s calling attention to the fact that defendant was nodding his head when Gillis was testifying that he would place defendant as standing in front of a lamp post depicted in a photograph taken at the scene of the first phase of the robbery; that defendant\u2019s fingerprints were not found on the chrome-plated gun because they were rubbed off the gun by cloth while the gun was positioned behind him; the State\u2019s comment that defense counsel was unethical and that defense counsel was trying to prevent an officer from testifying that the guns discovered by the police were the same size; and the State\u2019s \u201cassertion\u201d that two of its witnesses, a Chicago police officer and an assistant State\u2019s Attorney, were more credible than defendant. On the other hand, the State contends that defendant waived many of his arguments on the issue by not objecting to them at trial or in his post-trial motion and, alternatively, that no prejudice resulted to defendant since the complained-of comments were based on the evidence adduced at trial or were reasonable inferences therefrom.\nAlthough alleged prejudicial remarks made by a prosecutor during closing argument generally will not be considered on appeal where a defendant failed to object to them at trial (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), a reviewing court may consider them, in the interest of justice, under the plain error rule (107 Ill. 2d R. 615(a)). Defendant argues that the cumulative impact of the complained-of errors constitutes plain error requiring reversal of the jury\u2019s verdict. We disagree.\nIt is well settled that a prosecutor has great latitude in presenting closing argument. (People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.) A prosecutor has the right to comment on the evidence that has been adduced at trial and make all legitimate inferences therefrom. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) In determining the propriety of a closing argument, a reviewing court generally will follow the trial court\u2019s ruling absent a clear abuse of discretion. (People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.) Where a prosecutor\u2019s comments are error, the comments do not automatically constitute reversible error since reversible error occurs only where the comments substantially prejudice a defendant. A defendant suffers substantial prejudice when the result of his trial would have been different had the improper comments not been made. People v. Love (1985), 139 Ill. App. 3d 104, 486 N.E.2d 1337.\nWith respect to the State\u2019s comments about the brown jacket fitting defendant, we observe that the trial court\u2019s sustaining of defendant\u2019s objection to this statement during trial was based apparently on the fact that the State was making a determination that was for the jury to make in observing defendant dressed in the jacket. The fact that the State repeated its opinion that the jacket fit defendant well during argument clearly would have been recognized by the jury as merely the State\u2019s opinion, based on its observation of defendant, and the jury was free to agree or disagree with the State. Moreover, any prejudice to defendant was cured by the court\u2019s instruction to the jury that if the State\u2019s argument was not based on the evidence the jury could disregard it. See People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804.\nThe prejudicial nature of the complained-of comment relative to defendant\u2019s clothing is unclear to us. Defendant possibly is suggesting that the comment incorrectly states that defendant was wearing a brown jacket and jeans when he was arrested, rather than the black jacket and light-colored pants he was in fact wearing. However, our interpretation of the comment is that it is merely a reiteration of the testimony of Officer Murphy and Gillis that one of the robbers (defendant) was wearing a brown jacket and jeans. In any event, any prejudice attendant to this comment was cured by the court\u2019s instruction to the jury to disregard it if it was not based on the evidence. See People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804.\nWe also reject defendant\u2019s argument that the State improperly commented that \u201cRichard Gillis [as an attorney] knows armed robbers change their clothes.\u201d This comment was invited by defense counsel, who stated during his closing argument that \u201cMr. Gillis is an attorney, certainly he knows the difference between blue jeans and off white pants.\u201d (Emphasis added.) In rebuttal the State was merely responding to this comment; defense counsel made an assumption supposedly based on Gillis\u2019 occupation and the State was properly entitled to make a similar assumption. See People v. Perez (1983), 113 Ill. App. 3d 143, 446 N.E.2d 1229 (comments by a prosecutor that are ordinarily considered prejudicial are proper in rebuttal argument when the comments are responses that are invited by defense counsel\u2019s closing argument).\nWe further find that any possible error that arose from the State\u2019s comment on defendant\u2019s missing teeth was merely a mistaken belief of what evidence had been presented and was therefore harmless. The State commented that \u201che [defendant] says, my bottom teeth are missing. There isn\u2019t a tooth missing.\u201d A review of the record indicates that defendant testified he was missing two front teeth, but it does not indicate whether they were upper or lower. Accordingly, the State\u2019s comment apparently was based on its possibly mistaken interpretation of the evidence, and the court\u2019s instruction to the jurors to disregard it and to consider only the evidence cured any error (see People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804), notwithstanding that the State made an additional comment after the court\u2019s instruction. Moreover, the jurors had viewed defendant individually with his mouth open for the purpose of determining whether his missing teeth were so prominent that Gillis should have noticed same and, therefore, defendant could not have been prejudiced in any way.\nWe also find without merit defendant\u2019s contention that the prosecutor improperly commented during closing argument that defendant was nodding his head during a portion of Gillis\u2019 testimony concerning the position of defendant under a lamp post when defendant first confronted him. Defendant does not cite to any authority in support of his argument or make the argument with specificity; he merely states that the comment was not based on the evidence. In any event, since defendant objected to this comment and the trial court promptly sustained the objection and instructed the jury to disregard the comment if not based on the evidence, any prejudice was cured. See People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.\nWe also agree with the State that its comment, that \u201cin real life when you\u2019re sitting on a gun in the back seat [of a car] and its cloth is rubbing things off you\u2019re not going to find any fingerprints,\u201d was invited by defense counsel. Specifically, defense counsel argued to the jury that the State had \u201can obligation to take a hand print analysis of the [chrome-plated] gun.\u201d The State was merely responding to this comment by reasonable inference and its response was based on the evidence that defendant had stated he owned the gun and it had been pushed between the seat behind him. We further observe that unlike the situation in People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280, upon which defendant relies in support of his argument, the prosecutor in the instant case never accused defendant of wiping his fingerprints off the gun in order to exculpate himself.\nSimilarly, we find no merit in defendant\u2019s argument that the State undermined defense counsel\u2019s integrity. Clearly, the State\u2019s comments were invited. Defense counsel implied to the jury that the State prevented it from hearing evidence, i.e.:\n\u201cEach time I attempted to get responses from Officer Murphy relative to what he wrote in his report, objection once [sustained], objection twice [sustained], objection three times [sustained]. Why don\u2019t [sic] the State want you to know what Officer Murphy wrote in his report. And even suggested that what was in his report was not told to him by Mr. Gillis the State would have you just to take it and discard it.\u201d (Emphasis added.)\nThe State\u2019s properly invited response to defense counsel\u2019s comments was a reiteration of defense counsel\u2019s comments and its own comment that \u201cWhat does sustained mean? Counsel, it\u2019s improper, you know it\u2019s improper, you are a lawyer that is an unethical, improper thing to do. Sustained. He\u2019s doing something improper and all of a sudden now he wants to say the State doesn\u2019t want you to hear the evidence. That is garbage, that type of defense ploy is garbage.\u201d We also reject defendant\u2019s assertion that the State implied that defense counsel was trying to prevent an officer from testifying that the guns discovered by the police were the same size. We find it unnecessary to address this contention since defendant has failed to argue it with specificity.\nDefendant\u2019s last argument on this issue is that the State improperly claimed that two of its witnesses were more credible than defendant because one was a police officer and another an assistant State\u2019s Attorney. Like many of the previously discussed comments, defense counsel invited the State\u2019s response. Specifically, defense counsel told the jury that Officer Rajkovich lied to them twice and that his credibility was \u201cworthless, and unworthy of *** belief.\u201d In response, the State more or less asked the jury to use common sense; i.e., \u201cNow the police officer is going to make that statement up [that defendant admitted to owning the chrome-plated gun]? I\u2019ll tell you if he is going to make something up, *** he\u2019s going to put the whole quarter on this guy \u2014 He\u2019s going to come up with more than it\u2019s just my gun.\u201d Similarly, defense counsel emphasized the assistant State\u2019s Attorney\u2019s status and suggested that she, who also testified that defendant admitted to owning the gun, was lying in order to support Officer Rajkovich\u2019s similar testimony. In response, the State merely remarked that \u201cand a professional assistant State\u2019s attorney, she\u2019s going to risk her law career, everything to make up that this guy made a statement.\u201d Clearly, the State was not asserting that these two witnesses should be considered more credible than defendant\u2019s witnesses based on their occupations, but merely that they would not lie.\nBased on the foregoing, we therefore hold that the complained-of comments by the State, if error, were either harmless and cured by the trial court\u2019s instructions to the jury to disregard them if they were not based on the evidence or they were invited by defense counsel and therefore proper.\nThe final issue raised by defendant concerns the refusal of his tendered instruction on identification. The tendered instruction, tailored to meet defendant\u2019s theory that Gillis\u2019 identification of him was mistaken, stated:\n\u201cThe reliability of eyewitness identification has been raised as an issue in this case and deserves your attention. Identification testimony is an expression of belief or impression by the witness. Its value depends upon the opportunity the witness had to observe the offender at the time of the offense and later to make a reliable identification, and upon the influences and circumstances under which the witness made the identification.\nYou must consider the credibility of each identification witness in the same way as any other witness. Consider whether he is truthful and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.\nThe State has the burden of proving beyond a reasonable doubt that the defendant was the person who committed the crime.\u201d\nThe State tendered Illinois Pattern Jury Instructions (IPI) on the witness\u2019 credibility and on the prosecution\u2019s burden of proof, Nos. 1.02 and 2.03 (IPI Criminal, Nos. 1.02, 2.03 (2d ed. 1981) (hereinafter IPI Criminal 2d)). IPI Criminal 2d No. 1.02 states:\n\u201cYou are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.\u201d\nIPI Criminal 2d No. 2.03 states:\n\u201cThe defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.\nThe State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.\u201d\nThe trial court, in refusing defendant\u2019s tendered instruction, stated that IPI Criminal 2d Nos. 1.02 and 2.03 sufficiently covered the contents of defendant\u2019s proposed instruction. Defendant, however, in arguing that his instruction should have been given to the jury, relies on the committee comments of IPI Criminal 2d No. 1.02, where it was recommended as follows:\n\u201cWhile this instruction contains most of the usual elements of believability, the Committee recognizes that the evidence in a particular case could call for the insertion of additional elements. For example, in a case involving eyewitness identification, the trial judge may add factors such as the witness\u2019s opportunity to view the offender at the time of the offense, the witness\u2019s degree of attention at the time of the offense, the accuracy of the witness\u2019s earlier description of the offender, the level of certainty shown by the witness when confronting the defendant, and the length of time between the offense and the confrontation.\u201d (Emphasis added.) IPI Criminal 2d No. 1.02 (1987 Supp.), Committee Notes, at 3.\nWe first observe that the foregoing recommendation not surprisingly states that a trial court may allow the insertion of additional factors in a jury instruction where the case involves an eyewitness identification. This follows from the fact that the decision to give a non-IPI instruction is within the sound discretion of the trial court. (People v. Robinson (1979), 75 Ill. App. 3d 112, 394 N.E.2d 13.) We further note that Illinois courts have rejected the giving of a separate instruction for identification, holding that IPI Criminal 2d No. 1.02 (witness credibility) and IPI Criminal 2d No. 2.03 (burden of proof) sufficiently instruct the jury on the issue of misidentification. (People v. Fox (1971), 48 Ill. 2d 239, 269 N.E.2d 720; People v. Benson (1979), 71 Ill. App. 3d 591, 390 N.E.2d 113; People v. Griswold (1977), 54 Ill. App. 3d 246, 369 N.E.2d 392.) Our courts also follow the concept of avoidance of the giving of duplicative instructions. (People v. Perkins (1977), 47 Ill. App. 3d 548, 362 N.E.2d 109.) Finally, it has been held not to be error in a criminal case to refuse an instruction which accurately states the law applicable to a case if that principle has been correctly and sufficiently stated by another instruction. People v. Walker (1988), 177 Ill. App. 3d 743, 532 N.E.2d 447.\nIn the instant case, the trial court submitted both IPI Criminal 2d Nos. 1.02 and 2.03 to the jury and, therefore, the jury was sufficiently instructed on the issue of identification. Accordingly, the court\u2019s refusal to give defendant\u2019s separate instruction on identification was not error.\nFor the reasons stated, we therefore affirm the judgment of the circuit court of Cook County.\nAffirmed.\nCOCCIA, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE MURRAY" }, { "text": "JUSTICE PINCHAM,\nspecially concurring:\nIllinois Pattern Criminal Jury Instruction, Criminal, No. 1.02 (2d ed. 1981) (hereinafter IPI Criminal 2d) is on the credibility of witness. IPI Criminal 2d No. 2.03 is on the defendant\u2019s presumption of innocence and the State\u2019s burden of proof. Neither instruction is on eyewitness identification, although the portion of instruction No. 1.02 that, \u201cIn considering the testimony of any witness, you may take into account his ability and opportunity to observe,\u201d is obviously applicable to an identification witness, as it is to a nonidentification or any other witness.\nThe instruction on eyewitness identification tendered by the defendant, refused by the trial court, and set forth in the court\u2019s opinion is No. 3.06 from Federal Criminal Jury Instructions. In rejecting it, the trial court stated:\n\u201cThe court considers that IPI 1.02 as an issue on credibility and it does provide that \u2018in considering the testimony and any witness you may take into account his ability and opportunity to observe, his memory and manner while testifying.\u2019 et cetera. And the court considers that IPI instruction [1.02] is sufficient, broad and exclusive to cover the contents of this proposed instruction. The proposed instruction will not be given.\u201d\nIPI Criminal 2d No. 1.02, which the court gave, did not cover the four following additional elements of identification: (1) the witness\u2019 degree of attention at the time of the offense; (2) the accuracy of the witness\u2019 earlier description of the offender; (3) the level of certainty shown by the witness; and (4) the length of time between the witness\u2019 observations of the offender during the commission of the offense and the witness\u2019 later identification of the offender. The committee comments to IPI Criminal 2d No. 1.02 expressly \u201crecognize[ ] that the evidence in a particular case could call for the insertion of [these aforestated] additional elements\u201d in an identification instruction.\nThe case at bar was clearly such a \u201cparticular case.\u201d IPI Criminal 2d No. 1.02 failed to cover the complete elements that are required to be considered in assessing identification testimony, and it was therefore inadequate. It did not, even in conjunction with IPI Criminal 2d No. 2.03, advise the jury on the circumstances it should consider in evaluating identification evidence and they therefore were not duplicitous. Nor did IPI Criminal 2d Nos. 1.02 and 2.03 sufficiently instruct the jury on the issue of the victim\u2019s identification of the defendant as the offender. The defendant\u2019s proposed instruction was therefore improperly refused and the trial court erred in refusing it.\nIn this case, however, in view of the totality of the evidence, particularly, but not limited to, the victim\u2019s observations of the robbers during the commission of the offense, the victim\u2019s prompt reporting of the offense and description of the robbers and their weapons to the police, the defendant\u2019s arrest shortly after the robbery, the discovery of the weapon described by the victim practically in the defendant\u2019s possession and the defendant\u2019s admission that the weapon belonged to him, the discovery of another weapon described by the victim and the victim\u2019s property that was taken in the robbery in the car in which the defendant was arrested, the victim\u2019s identification of the defendant as the robber shortly after the robbery, and the victim\u2019s careful scrutiny of the lineups to be certain of his identification of the defendant as the robber, I unreluctantly conclude that the error was harmless.\nIn People v. Moore (1983), 95 Ill. 2d 404, the supreme court held that the trial court\u2019s refusal to give the defendant\u2019s tendered instruction on voluntary manslaughter was harmless error because the evidence overwhelmingly established that the defendant was guilty of felony murder and, thus, it made no difference if the homicide was committed by the defendant under the unreasonable belief that the homicide was in self-defense and therefore justified. Similarly, the supreme court in People v. Jones (1979), 81 Ill. 2d 1, held that where the intent to kill was \u201cblatantly evident,\u201d the trial court\u2019s improper failure to correctly instruct the jury on the defendant\u2019s mental state, i.e., his intent to kill in attempt murder, was harmless error.\nIt is only because of the unique facts in the case at bar that the trial court\u2019s erroneous refusal to instruct the jury on the aforementioned additional elements of identification was harmless. On the facts in the case at bar it can be concluded with reasonable certainty that the jury\u2019s guilty verdict would have been the same had it been properly instructed on the aforestated omitted elements on identification.\nSimilarly, the court held that the \u201cdefendant suffered no prejudice by the court\u2019s refusal of his [identification] instruction\u201d in People v. Benson (1979), 71 Ill. App. 3d 591, 595, 390 N.E.2d 113, cited in the court\u2019s opinion in the case at bar. In Benson, the restaurant owner robbery victim gave the officers descriptions of the three robbery offenders and told the officers that the name of one of them was Rufus, who had previously worked for him in his restaurant, and that he had many times seen the other two robbers in Rufus\u2019 company in and around the victim\u2019s restaurant prior to the robbery.\nIn People v. Griswold (1977), 54 Ill. App. 3d 246, 369 N.E.2d 392, also cited in the court\u2019s opinion in the case at bar, the court pointed out that defendant\u2019s tendered instruction on identification was properly refused because it did not \u201cconform to the evidence because Sergeant Keckler [the armed robbery victim] testified that he saw defendant three times the night of the robbery while defendant\u2019s instruction refers to a single sighting. The trial court correctly refused defendant\u2019s identification instruction.\u201d\nIt is quite apparent that the Griswold court improperly relied on its erroneous interpretation of People v. Fox (1971), 48 Ill. 2d 239, and mistakenly stated, \u201cIPI Criminal 1.02 and 2.03 on credibility and burden of proof, respectively, have been held sufficient to instruct the jury as to the defense of mistaken identity.\u201d (Griswold, 54 Ill. App. 3d at 251.) The opinion in the case at bar, also based upon the court\u2019s improper reliance on its mistaken interpretation of Fox, likewise erroneously states, \u201cthat Illinois courts have rejected the giving of a separate instruction for identification, holding that IPI Criminal 2d No. 1.02 (witness credibility) and IPI Criminal 2d No. 2.03 (burden of proof) sufficiently instruct the jury on the issue of misidentification.\u201d 183 Ill. App. 3d at 606.\nThe following complete language of Fox on the identification instruction issue clearly reveals that Fox does not hold that \u201cIPI Criminal 2d No. 1.02 (witness credibility) and IPI Criminal 2d No. 2.03 (burden of proof) sufficiently instruct the jury on the issue of misidentification,\u201d (183 Ill. App. 3d at 606) nor precludes the giving of, nor justifies the refusal to give, an additional instruction on the aforementioned four elements of identification.\n\u201cThe court refused to give defendant\u2019s instruction No. 3 on the subject of identification. The defendant complains that since his theory of defense was erroneous identification he had a right to have his instruction on identification given. IPI-Criminal section 3.15 recommends that no instruction be given on this subject stating that the subject is adequately covered by instruction No. 1.02 on credibility of witnesses. Instruction No. 1.02 was given as State\u2019s Instruction No. 2. The court also gave IPI-Criminal Instruction No. 2.03 as State\u2019s instruction No. 4. This instruction covers the presumption of innocence and the burden of proof on the State to prove the defendant guilty beyond a reasonable doubt. We think these two instructions adequately cover the subject matter of defendant\u2019s instruction No. 3 in a clearer and more concise and accurate manner than defendant\u2019s instruction. We are not informed whether the language of defendant\u2019s instruction No. 3 has ever been judicially approved. We do note however, that its language violates the spirit of the last sentence of our Rule 451(a) (43 Ill. 2d R. 451(a)) which provides: \u2018Whenever IPI-Criminal does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial, and free from argument.\u2019\nWe conclude that this instruction is not simple, brief, impartial and free from argument. It contains many of the evils IPI-Criminal seeks to avoid. If a party wishes to have the jury instructed on a subject that is not covered by IPI-Criminal he must tender an instruction to the court that does not violate the spirit of Rule 451(a).\u201d (Emphasis added.) People v. Fox (1971), 48 Ill. 2d 239, 249.\nFrom the foregoing language of Fox, it is quite apparent that Fox does not hold that IPI instructions Nos. 1.02 and 2.03 sufficiently instruct the jury on the law in assessing identification testimony and on the circumstances to be considered in evaluating an identification, or that no additional instruction on identification need be given. Quite the contrary.\nOur supreme court just recently held in People v. Slim (1989), 127 Ill. 2d 302, 307:\n\u201cIn assessing identification testimony, our courts have generally been using steps set out by the Supreme Court in Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375. There the Court held that circumstances to be considered in evaluating an identification include:\n(1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness\u2019 degree of attention; (3) the accuracy of the witness\u2019 prior description of the criminal; (U) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation.\u201d (Emphasis added.)\nThese foregoing five \u201ccircumstances to be considered in evaluating an identification\u201d and \u201cin assessing identification testimony,\u201d pronounced by our supreme court in Slim, a bench trial where the trial judge is presumed to know the law, a fortiori, must be given in the form of an instruction on the law to a jury, which is not presumed to know the law.\nIPI criminal instructions did not change, but only codified Illinois law on jury instructions. Thus, the following language of People v. Ricili (1948), 400 Ill. 309, 315-16, although predating the IPI criminal instructions, is nevertheless uniquely applicable to the instant case:\n\u201cOur attention is directed at this point to an [identification] instruction which was tendered by the defendant and refused by the court ***.\nThe instruction was refused and no other instruction was given to the jury covering the question of identification. It was the position of the People that the instruction as offered contained elements not shown by the evidence and *** was not supported by any evidence. A similar instruction was tendered in the case of People v. LeMar, 358 Ill. 58, which was refused by the court. We there held that this was reversible error as no instruction was given by the trial court on the ques tion of the defendant\u2019s identification, and that the refusal to submit any instruction to the jury on this important issue may have prejudiced defendant, especially since he was identified only by one of four eyewitnesses to the crime. He had a right to have the jury instructed on his theory of the case. [Citations.]\nWe think in the instant case it was error to refuse this instruction. If there could have been any question as to that part of the instruction above referred to it could have properly been modified by the court striking out the line objected to as set out above, thus not depriving defendant of a crucial instruction pertaining to the law as applicable to his case.\u201d (Emphasis added.)\nWhere a defendant relies on mistaken identification as his defense, the above-quoted language of Fox, Slim and Ricili, the above-quoted recommendations by the committee comments regarding IPI Criminal 2d No. 1.02, the State and the defendant\u2019s right to have the jury correctly and completely instructed on the law applicable to each phase of their case, prudence, caution, wisdom, the exercise of good judgment, and to insure the validity of a conviction if one is obtained, dictate an instruction to the jury on the additional identification elements of (1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness\u2019 degree of attention at the time of the offense; (3) the accuracy and the witness\u2019 earlier description of the offender to the police; (4) the level of certainty shown by the witness when confronting the defendant; and (5) the length of time between the offense and the witness\u2019 subsequent identification of the defendant as the offender.\nFor these foregoing reasons, I concur in the affirmance of the defendant\u2019s judgment of conviction.\nThe original section 3.15 of IPI Criminal, referred to in Fox, has been eliminated. It stated that the committee recommended that no instruction be given on the circumstances of an identification on the ground that the subject was adequately covered by the instruction on the credibility of witness, IPI No. 1.02. The complete comments to IPI Criminal 2d No. 1.02 (1989 Supp.) now state however: \u201cWhile this instruction contains most of the usual elements of believability, the Committee recognizes that the evidence in a particular case could call for the insertion of additional elements. For example, in a case involving eyewitness identification, the trial judge may add factors such as, [1] the witness\u2019s opportunity to view the offender at the time of the offense, [2] the witness\u2019s degree of attention at the time of the offense, [3] the accuracy of the witness\u2019s earlier description of the offender, [4] the level of certainty shown by the witness when confronting the defendant, and [5] the length of time between the offense and the confrontation. See Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); People v. Manion, 67 Ill. 2d 564, 367 N.E.2d 1313,10 Ill. Dec. 547 (1977).\u201d", "type": "concurrence", "author": "JUSTICE PINCHAM," } ], "attorneys": [ "Michael J. Pelletier, Karen Michels, and Kenneth L. Jones, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago, (Inge Fryklund, Peter T. Petrakis and Andrea K. Muchin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH WHEATLEY, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201487\u20140044\nOpinion filed May 12, 1989.\nPINCHAM, J., specially concurring.\nMichael J. Pelletier, Karen Michels, and Kenneth L. Jones, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago, (Inge Fryklund, Peter T. Petrakis and Andrea K. Muchin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0590-01", "first_page_order": 612, "last_page_order": 634 }