{ "id": 2495432, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. David Paul Porter, Defendant-Appellant", "name_abbreviation": "People v. Porter", "decision_date": "1975-06-24", "docket_number": "No. 74-286", "first_page": "456", "last_page": "461", "citations": [ { "type": "official", "cite": "29 Ill. App. 3d 456" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "252 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill.App.2d 242", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1589936 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/113/0242-01" ] }, { "cite": "262 N.E.2d 237", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill.App.2d 249", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2473325 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0249-01" ] }, { "cite": "289 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill.App.3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2670632, 2668706 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0949-01", "/ill-app-3d/7/0949-02" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "310 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.App.3d 613", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2613920 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0613-01" ] }, { "cite": "312 N.E.2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.3d 125", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345551 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0125-01" ] }, { "cite": "263 N.E.2d 35", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill.2d 395", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2897868 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0395-01" ] }, { "cite": "320 N.E.2d 400", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "23 Ill.App.3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506618 ], "weight": 2, "pin_cites": [ { "page": "1016" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/1011-01" ] } ], "analysis": { "cardinality": 617, "char_count": 11425, "ocr_confidence": 0.752, "pagerank": { "raw": 1.7607059696479383e-07, "percentile": 0.7099966059797309 }, "sha256": "33761604897c986c166f3b345f3197c8eb7556bd68f2f734a2c8b0a7ac9071c9", "simhash": "1:9e0c4c8eb7e914e3", "word_count": 1931 }, "last_updated": "2023-07-14T17:27:57.823802+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. David Paul Porter, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal by the defendant, David Paul Porter, from a judgment of conviction entered on a jury verdict of guilty to the offense of armed robbery by the circuit court of Madison County and the imposition of a sentence of not less than 4 nor more than 6 years\u2019 imprisonment.\nThe issues raised on appeal are: (1) whether the defendant was proven guilty beyond a reasonable doubt where his conviction allegedly \u201cturned upon the identification of only one witness, who had but a fleeting opportunity to observe the robber leaving the store\u201d; and (2) whether \u201cthe trial court erred in precluding the defendant from eliciting testimony concerning a subsequent robbery at the same store.\u201d\nThe undisputed facts which gave rise to the charges in the instant case were as follows. At approximately 8:40 P.M. on February 12, 1974, the Farm Fresh Store in Alton, Illinois, was the subject of an armed robbery. The proprietor, Mrs. Geraldine Mueller, was alone in the store when a young white male with a \u201csock hat\u201d entered the store, pulled out a gun, and ordered her to remove the money from the cash register and place it in a paper sack. Once the money was placed in the sack, the perpetrator ordered Geraldine Mueller to turn around, keep her head down, and stay that way for \u201ca few minutes.\u201d Geraldine Mueller complied with these commands. She heard the door to the store open and close, and then open again a few seconds later. She looked up and saw that Lester Graham, a regular customer, had entered the store. She yelled that she had been robbed and Graham gave chase. Mildred Leonard, a store employee, entered the store a \u201csecond\u201d after Graham had left in pursuit of the fleeing felon.\nLester Graham testified that he came to the store at approximately 9 P.M. on Friday, February 12, 1974. As the witness approached the corner of the building a car pulled up at the other end of the building carrying Mildred Leonard, a store employee. The witness then testified:\n\u201cAt this point the car drove up and someone came out the door'. He came out the door and turned toward the car hesitated and turned back toward me and came this way. And as he started coming back toward me, he took about three steps and noticed me and sort of hesitated.\u201d\nAfter he hesitated:\n\u201cHe just kept coming but he speeded up and as he came out here, he made like he was going across Milton Road and turned his head to me and then came back around behind me, and as he came behind me, I turned and looked at him and he was looting at me.\u201d\nThe witness testified that this subject came within \u201c[t]hree, four, [or] six feet\u201d of him. The witness also testified that he viewed the subject\u2019s face for \u201cAbout five seconds, maybe ten\u201d in an area that was \u201cvery well lit.\u201d The witness did not know the store had been robbed at the time he viewed the subject exit from the store. The witness was able to describe the subject\u2019s clothing, \u201ca blue stocking cap, dark pants, a blue and white navy CPO jacket\u201d and the subject\u2019s general physical characteristics, \"five, ten, had brown hair\u201d and \u201ca pointed chin,\u201d to the police.\nEdgar McClary, an Alton police officer, testified that he observed the defendant exit an establishment called the Red Bird Smoke Shop around 11 or 11:30 P.M. on February 12. The defendant drove off in a car with three other individuals. Officer McClary stopped the car because the defendant fit the description of the robber of the Farm Fresh Store. The officer acquired the name and address of the defendant and then released him pending further investigation.\nAs a result of Officer McClary\u2019s information a picture of the defendant was obtained. According to James Casper, another police officer, he took 10 photographs to Graham\u2019s house on February 14. Graham \u201cthumbed through\u201d the photographs and indicated that the second or third photograph depicted the man he had observed outside the Farm Fresh Store. Graham testified that he was shown three photographs, one of which he identified. Graham had previously viewed numerous photographs but was unable to identify any; nor was he able to identify either of the two suspects the police had picked up on the night of the aimed robbery.\nDavid Whipple, an Alton police officer, arrested the defendant on February 16, 1974. At the time of his arrest, the defendant was wearing a blue and white (or gray) \u201cCPO\u201d jacket. This jacket was retained by the police as evidence.\nOfficer McClary conducted a lineup on February 19, 1974. Both Geraldine Mueller and Lester Graham viewed the lineup. While Mrs. Mueller was unable to make an identification, Lester Graham identified the defendant as the man he had seen outside the Farm Fresh Store on the night in question. The defendant was not wearing the \u201cCPO\u201d jacket during the lineup proceedings.\n\u25a0At the trial Lester Graham again identified the defendant as the person he observed exiting from the Farm Fresh Store on the night in question. He also identified the \u201cCPO\u201d jacket the police had taken from the defendant as the same jacket he had observed on the man who had exited the Farm Fresh Store. Mrs. Mueller did not identify the defendant during the trial.\nThe only witness for the defense was the defendant. While he admitted being stopped by Officer McClary on February 12, he denied that he had committed the offense in question. He also denied that he had been at the Farm Fresh Store that evening. The defendant testified that he had been in the Red Bird Smoke Shop for IVz to 2 hours and that previous to that time he had been in the Cadillac Lounge in Cottage Hills.\nThe first issue we reach is whether the defendant was proven guilty beyond a reasonable doubt. The defendant argues that numerous factors militate against an affirmative answer to this question. Among the factors noted by the defendant are: (1) that the witness only observed the perpetrator of the crime for 5 to 10 seconds; (2) that the witness was never closer than 3 to 6 feet to the perpetrator; (3) that the observation occurred at night; (4) that the description of the clothing played a role in the defendant\u2019s apprehension; (5) that the victim of the crime could not identify the defendant; and (6) that the witness observed the perpetrator before he was aware that a crime had occurred.\nWe have examined the record keeping in mind each of these factors. We have concluded that such factors, whether considered individually or collectively, do not discredit the testimony of tire State\u2019s eyewitness, much less require reversal of the jury\u2019s verdict of guilty. While we consider the circumstances under which a witness observes an individual of paramount importance, as we stated in People v. Jackson, 23 Ill.App.3d 1011, 1016, 320 N.E.2d 400, 403, \u201cThe identification does not have to have been under perfect conditions or for a long period of time. (People v. Stringer, supra; People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35.)\u201d In the instant case the defendant has failed to show that the State\u2019s eyewitness, Lester Graham, had an insufficient opportunity 'to observe the perpetrator of the offense to permit positive identification. Lester Graham testified that the area in which he viewed the suspect was \u201cvery well lit.\u201d He also testified the suspect walked towards him and that he viewed the suspect\u2019s face for 5 to 10 seconds. He further testified that even after the suspect passed him, he turned around and continued to observe the suspect. We also consider significant the fact that Graham was able to give the police a fairly detailed description of the suspect. In fact, it was this description which eventually led to the defendant\u2019s apprehension. Although the description of the suspect\u2019s clothing, the \u201cCPO\u201d jacket, played a role in the defendant\u2019s apprehension, it could not, as claimed by the defendant, have affected either Graham\u2019s photographic or lineup identification of the defendant since such jacket was not worn by the defendant in either situation. In view of all the foregoing circumstances it is the court\u2019s opinion that there was sufficient positive identification of the defendant for the jury to convict him. (See People v. Jackson, 23 Ill.App.3d 1011, 320 N.E.2d 400; People v. Irons, 20 Ill.App.3d 125, 312 N.E.2d 664.) The fact that the victim of the crime was unable to identify the defendant was not fatal to the State\u2019s case. People v. Thompson, 18 Ill.App.3d 613, 310 N.E.2d 504.\nSimilarly, we do not find the photographic identification of the defendant by Graham so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification as insinuated by the defendant. See Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967; People v. Chandler, 7 Ill.App.3d 949, 289 N.E.2d 67; People v. Wooley, 127 Ill.App.2d 249, 262 N.E.2d 237; People v. Campbell, 113 Ill.App.2d 242, 252 N.E.2d 26.\nThe second point in the defendant\u2019s appeal is that \u201cthe trial court erred in precluding the defendant from eliciting testimony concerning a subsequent robbery at the same store.\u201d While the defendant acknowledges that the defense counsel did not comply with the \u201ctechnical requirements for an offer of proof,\u201d he contends that such failure did not waive this issue since the record \u201cclearly demonstrates that the trial judge understood the objection and the character of the evidence, but would not admit such evidence.\u201d We do not agree.\nAt the defendant\u2019s trial the defense counsel claimed that it was \u201cvery relevant to find out the description of that robber to see if he matched the robber of February 12, 1974,\u201d since he believed \u201cthe description does fit.\u201d The defense counsel gave no reasons for his belief that the descriptions would match. Had there been a great similarity in the description of the second robber, the defense counsel should have made an offer of proof stating the specific facts which would be elicited to establish the purported similarity. It was the responsibility of the defense counsel to state precisely what the excluded testimony would reveal, not merely allude to what might be revealed or what he believed. Even on appeal the defendant has failed to state what specific facts could have been elicited to establish the purported similarity between the second robber and the robber of February 12, 1974, Also noteworthy is the fact that while the trial court prevented the defense counsel from inquiring into the description of the second robber, it did not prevent the defense counsel from asking the witness if she had, subsequent to the robbery of February 12, 1974, seen anyone who resembled the robber of February 12, 1974. Under these circumstances we cannot say that the trial court erred in excluding evidence concerning the second robbery of the Farm Fresh Store.\nAccordingly, we affirm the judgment of conviction entered by the circuit court of Madison County and the sentence imposed thereunder.\nJudgment affirmed.\nKARNS and CARTER, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE EBERSPACHER" } ], "attorneys": [ "Stephen P. Hurley and Michael J. Rosborough, both of State Appellate Defenders Office, of Mt. Vernon, for appellant.", "Nicholas G. Byron, State\u2019s Attorney, of Edwardsville (Bruce D. Irish and Myra J. Brown, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. David Paul Porter, Defendant-Appellant.\n(No. 74-286;\nFifth District\nJune 24, 1975.\nStephen P. Hurley and Michael J. Rosborough, both of State Appellate Defenders Office, of Mt. Vernon, for appellant.\nNicholas G. Byron, State\u2019s Attorney, of Edwardsville (Bruce D. Irish and Myra J. Brown, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0456-01", "first_page_order": 480, "last_page_order": 485 }