{
  "id": 2674258,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. James A. Moore, Defendant-Appellant",
  "name_abbreviation": "People v. Moore",
  "decision_date": "1972-09-11",
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  "last_updated": "2023-07-14T16:18:17.074050+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. James A. Moore, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE THOMAS J. MORAN\ndelivered the opinion of the court:\nThe defendant, James Moore, along with Albert Norris and Gary Farrar, was indicted for the offenses of attempted murder, armed robbery and aggravated battery. A jury found him guilty of all three offenses and he was sentenced to the penitentiary. His appeal to tire Supreme Comt was transferred to this court.\nTaken with this case is a motion on behalf of defendant to strike certain portions of the State\u2019s brief and an appendix to tire brief. We deny this motion.\nAt approximately 8:55 P.M. on December 12, 1969, two men entered a music store in Freeport, Illinois. The lone clerk, William Muller, testified that at 9:10 he told the men it was closing time; that both men then approached him; one of them came around the counter, pulled out a gun and announced a \u201cstick-up\u201d; that he told them he would give them money and asked not to be shot; that the man with the gun shot him in the mouth; that he was pushed to the back of the store, the men then took money from a desk and fled.\nDefendant raises four issues on appeal: (1) a pre-trial lineup, at which Muller identified Moore, was unfairly conducted and tainted the in-court identification of the defendant; (2) testimony regarding an illegally seized gun, even though stricken from the record, was so prejudicial that it denied defendant his right to a fair trial; (3) the prosecutors closing remarks were false and inflammatory; and (4) defendant was not proven guilty beyond a reasonable doubt.\nAt the trial, Muller identified Moore as the man who shot him. During cross-examination, it was disclosed that Muller had identified defendant at a pre-trial lineup. It was further revealed that, before viewing the lineup of participants, Muller had read the names of the robber suspects in the newspaper and that each participant gave his name before Muller made an identification. Consequently, it is argued that the in-court identification was inadmissible because it was a product of a suggestive and improper pre-trial lineup. See, People v. McCorry (1972), 51 Ill.2d 343.\nThe evidence is contradictory as to whether the participants gave their names at the lineup while Muller was present. The police officer who conducted the lineup testified that there were no witnesses present when the subjects gave their names. Muller also testified that, although each man recited his name, \u201c* * * I had heard the names, but I didn\u2019t know which was which \u2014 which boy was what name.\u201d\nWere we to assume that Muller read the names in the paper, that the lineup participants recited their names while Muller was present, and that this constituted an unnecessarily suggestive pre-trial identification procedure, it would not follow, ipso facto, that defendant was denied due process.\n\u201c* * * [E]ven though an out-of-court procedure may have been unnecessarily suggestive, nonetheless, denial of due process depends on whether * * * identification at trial was dependent on or influenced by the improper viewing and that the question to be determined is whether the witness\u2019s identification had an origin independent of the improperly suggestive confrontation.\u201d People v. Martin (1970), 47 Ill.2d 331, 338.\nWe hold that the lineup confrontation, even if suggestive did not lead to error because Muller\u2019s identification had an origin independent of the lineup. The robbers were in the adequately-lighted store for at least fifteen minutes, during which time Muller viewed them \u201cfrom time to time.\u201d After Muller announced closing, they approached the counter and stood within a few feet of him. When Muller was shot, he was two feet from his assailant. Consequently, his excellent opportunity to view defendant is the independent origin of his lineup identification. See People v. McCorry, at pp. 346-347 (several minutes of observation under adequate fighting at a distance of a few feet); People v. Hudson (1970), 46 Ill.2d 177, 185 (observation for thirty seconds). We take cognizance of the fact that no objection was made when Muller made his in-court identification and that defendant did not make any pre-trial motion to suppress identification.\nDefendant also alleges that the prosecution failed to establish that he was represented by counsel during the pre-trial lineup. We find no merit to this argument since it is undisputed that prior to the lineup the Public Defender was appointed to defend Moore and was present at the lineup. We cannot assume, as defendant requests, that, since this Public Defender later withdrew from the case because he was involved in an attorney-client relationship with William Muller, there is \u201cgrave doubt\u201d that he was in fact representing the interests of the defendant at the lineup.\nAlbert Norris, one of defendant\u2019s alleged accomplices, testified for the prosecution and implicated Moore in the crimes. He testified in part that, before the crimes were committed, Farrar took a gun out of his car and gave it to the defendant; that after the robbery defendant gave the gun to Norris who placed it in a trash barrel outside of a tavern. (The police found the gun after searching through the trash barrel.) During direct examination of Norris, a gun was shown to him on two different occasions and, without objection by defense counsel, he identified the gun as the one Farrar gave to defendant which defendant later gave to Norris. After Norris left the stand, the trial judge allowed defendant\u2019s motion to suppress the gun as a product of an unlawful search and he later struck Norris\u2019 testimony relating to identification of the gun, ordering the jury to disregard that portion of the testimony. Defendant now alleges that the testimony, even though stricken from the record, was so prejudicial that he was denied a fair trial. He relies upon those cases which hold that even if very damaging evidence is struck from the record, the jury still may have been prejudiced by it. See, e.g., People v. Lehner (1927), 326 Ill. 216, 221-222.\nThe question of the correctness of the suppression is not before us; however, for several reasons, we find no error. No objection or motion to suppress was made until after the gun had been displayed, Norris had twice identified the weapon and had left the witness stand. Even if the jurors, after the judge\u2019s instruction to disregard, improperly considered the gun identification, no prejudice resulted. Muller testified that he was robbed at gun point and shot in the mouth by a person he identified as the defendant. The fact that is important to the charges of armed robbery, attempted murder and aggravated battery in the case at bar is that a gun was used and this fact was established through Muller\u2019s testimony. The identification of the gun was not significant and prejudice could' not result if the jury improperly considered it.\nDefendant alleges that the prosecutor in his closing argument made false and inflammatory statements designed to prejudice the jury. The remarks concerned the character of two of Moore\u2019s alibi witnesses and one of Farrar\u2019s alibi witnesses.\n\u201c* * * Let\u2019s examine the character of some of these witnesses who have testified. Deborah Puckett \u2014 Moore\u2019s brother \u2014 Farrar\u2019s brother\u2014 do you think that people who jump in and out of hotels and motels without \u2014 with companions of the opposite sex have the morals or scruples or fibre \u2014 \u201d\nThe defendant\u2019s contention is that these comments constituted prejudicial error because there is no foundation for them in the record. People v. Snell (1966), 74 Ill.App.2d 12.\nThe record discloses that Deborah Puckett and Joseph Moore, defendant\u2019s witnesses, who were not married to each other, spent the night of the crime together and that Dwayne Farrar, one of Farrar\u2019s witnesses, in company with a girl not his wife, registered at a hotel as husband and wife, eight times in two months. Consequently, there was a foundation in the record for commentary upon the character of these witnesses for impeachment pmposes. There was however no evidence of Deborah Puckett and Joseph Moore \u201cjumping in and out of hotels and motels.\u201d While this statement should not have been made, no prejudicial error occurred because of it.\nFinally, defendant alleges that he was not proven guilty beyond a reasonable doubt. We do not agree. The victim of the crime identified Moore as one of the men who held him up and as the man who shot him. Holding that this identification was, in no way, tainted the positive identification is sufficient to sustain a conviction even if uncontradicted alibi witnesses have testified. People v. Mays (1971), 48 Ill.2d 164, 170. Additionally, Moore\u2019s accomplice, Norris, implicated him in the crimes.\n\u201cIt is well established that the testimony of an accomplice, even though it is attended with infirmities such as a promise of leniency, is sufficient to sustain a guilty finding. [Citations omitted.]\u201d People v. Hudson, 46 Ill.2d at 190.\nFinding no error we affirm the judgment of the lower court.\nJudgment affirmed.\nABRAHAMSON and GUILD, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE THOMAS J. MORAN"
      }
    ],
    "attorneys": [
      "Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.",
      "William J. Scott, Attorney General, of Springfield, and F. Lawrence Lenz, State\u2019s Attorney, of Freeport, (Thomas J. Immel and Fred G. Leach, Assistant Attorneys General, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. James A. Moore, Defendant-Appellant.\n(No. 71-376;\nSecond District\nSeptember 11, 1972.\nKenneth L. Gillis, of Defender Project, of Chicago, for appellant.\nWilliam J. Scott, Attorney General, of Springfield, and F. Lawrence Lenz, State\u2019s Attorney, of Freeport, (Thomas J. Immel and Fred G. Leach, Assistant Attorneys General, of counsel,) for the People."
  },
  "file_name": "0315-01",
  "first_page_order": 337,
  "last_page_order": 341
}