{ "id": 5609510, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL DUARTE, Defendant-Appellant", "name_abbreviation": "People v. Duarte", "decision_date": "1979-12-11", "docket_number": "Nos. 77-1481, 78-523 cons.", "first_page": "110", "last_page": "126", "citations": [ { "type": "official", "cite": "79 Ill. App. 3d 110" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "37 N.E.2d 1170", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "162 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "17 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334900 ], "year": 1977, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0486-01" ] }, { "cite": "344 N.E.2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 821", "category": "reporters:state", "reporter": "Ill. 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DANIEL DUARTE, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE DOWNING\ndelivered the opinion of the court:\nFollowing a joint bench trial with co-defendant Jack Cozzi (Cozzi), defendant Daniel Duarte (Duarte) was found guilty of the murder of Patrick Garrison and sentenced to 14 to 20 years in the penitentiary. Defendant Duarte appeals contending (1) that the trial court committed reversible error (a) in denying his motion to suppress the in-court identification testimony of the State\u2019s sole occurrence witness, and (b) in excluding testimony of a statement made by co-defendant Cozzi on the basis of the attorney-client privilege, and (2) that the State failed to prove him guilty beyond a reasonable doubt. The following testimony was adduced at trial.\nDetective James Caliendo testified that on February 23,1976, at 11:25 p.m., he arrived at the well-lit scene of the occurrence in front of Bambi\u2019s Lounge at 2809 74th Avenue, Elmwood Park, Illinois. In the middle of the street he found a 1969 Oldsmobile Cutlass with its windshield and windows on both sides smashed in. Patrick Garrison was found lying across the front seat. The parties stipulated that Garrison\u2019s skull had been fractured by either one substantial blow or a number of blows, with the probability of a single blow greater than the probability of a number of blows. Caliendo recovered a blond bat from a gangway adjacent to Bambi\u2019s and a dark bat from the back seat of the car.\nPatrick Elliot testified that on February 23, 1976, he lived directly across the street from Bambi\u2019s Lounge in the first floor apartment at 7404 West Diversey, Elmwood Park, Illinois. At 11:07 p.m., Elliot was in his darkened bedroom when he heard tires squealing and someone say, \u201cYou mother fucker son of a bitch.\u201d He then went to the bedroom window which was open about four inches. Since the window shade was pulled down to the sill, he knelt down and looked through the four-inch opening and saw a 1969 Oldsmobile in the middle of the street about 55 feet away with its headlights off. Elliot then saw three people carrying bats walking fast on the east side of the street toward the car. The first man whom he later identified as co-defendant Cozzi hit the hood, the left side of the windshield, and the driver\u2019s side window with a light-colored bat and then thrust it through the window. Elliot then saw a second dark-haired person wearing a dark coat and black levis put his right hand on the hood of the car and catapult his body over the front on the passenger side. Elliot further testified that this second person, whom he later identified as defendant Duarte, struck the passenger side windshield with a dark-colored bat several times, crawled into the passenger\u2019s side of the car, stayed 10 to 15 seconds, and then crawled out. Elliot could not see inside the car as the inside light of the car was not on. The third person, described only as wearing an orange or tan sports coat, walked toward the back of the car and away. In a statement later given to the police, Elliot stated that when a fourth man came out of the bar and talked to co-defendant Cozzi, everything stopped. After calling to his wife, Elliot returned to the window and saw a dark-colored car pull away from the east side of the street and turn onto Diversey. He also saw a white Buick with a white interior pull out of the gas station and head east on Diversey passing the police as they arrived.\nElliot further testified that he saw the offenders for approximately one to two minutes, that he attempted to call the police while he was watching them, that the offenders were in motion throughout the time, and that his view was unobstructed. Although Elliot testified that there was no lighting from the gas station next door to Bambi\u2019s, and that he could not recall whether the gaslights on Bambi\u2019s were lit, he also testified that the Miller High Life sign hanging on the lounge was a strong light source and that there were two streetlights, one on the southwest comer of 74th Street and another on the southeast comer of 74th Street and Diversey which hung over Diversey. The parties stipulated that the moon was not visible at the time in question. At the police station that night, Elliot described the first person (co-defendant Cozzi) as being 5T1\", weighing 165 pounds, with light hair and a mustache. He described the second person (defendant Duarte) as 5'10\", weighing 150 pounds with dark hair. In a statement given sometime later, Elliot described the first person as 6T\", but didn\u2019t describe the second person. In the courtroom Elliot estimated defendant Duarte\u2019s height as 5'6\" or 5'7\". The defendant testified that he was 5'4\".\nDetective Caliendo further testified that co-defendant Cozzi was taken to the police station at about 6:30 a.m. on February 24,1976, where he was identified in a lineup by Patrick Elliot as the first person. Elliot corroborated Caliendo\u2019s testimony as to his identification of Cozzi. Caliendo further testified that at 9 p.m. that night Cozzi told him that he and Duarte had seen an altercation in front of Bambi\u2019s with one of their friends, that they had picked up the light-colored bat, and that he was not going to take a murder rap alone. The trial judge stated that he would not consider this statement as evidence against defendant Duarte. On February 25, 1976, at 5:40 p.m., detective Caliendo then went to defendant Duarte\u2019s home where he saw him drive up in a white 1975 Buick with a burgundy half-roof and a white interior. Duarte was then arrested, taken to the station, issued an I.R. #, and photographed in the investigation office at about 6 p.m. Detective Caliendo then contacted Patrick Elliot who arrived at approximately 7 p.m. according to Elliot\u2019s testimony, when Duarte was in the detention lockup located approximately 15 feet from the main interrogation room. Caliendo did not see Elliot when he entered the police station. Caliendo met Elliot in his office and gave him a mug-shot book containing 30 pages with four pictures per page with the exception of the last. On the last page there were three pictures: defendant Duarte\u2019s, bearing the date of February 25, 1976, Cozzi\u2019s, and a third unknown picture. According to Caliendo, Elliot selected the defendants\u2019 pictures, and then walked to the back of the main interrogation room where he saw Duarte being processed.\nElliot corroborated Caliendo\u2019s testimony as to his identification of defendant Duarte from the mug shots. He further testified that he did not notice the date on the defendant\u2019s picture, and that he had seen the defendant in the station after he had viewed the mug book. When requestioned on cross-examination as to whether he had seen the defendant before or after viewing the mug book, Elliot responded, \u201cI saw him before I looked at the mug book, before I saw him on February 23.\u201d\nSix other persons were arrested the night of February 23, 1976: Andrew Dobis, Thomas Capotosto, Dominick Marzovilla, Ronald Deland, Carmen Rossi, and George Buttacavoli. Dobis, Capotosto, Marzovilla, and Deland testified for the State at the defendant\u2019s trial.\nAndrew Dobis, the bartender at Bambi\u2019s Lounge, first testified that he saw defendant Duarte and co-defendant Cozzi in the bar near the foozball machine at about 11 p.m. with Ronald Deland, Ron\u2019s girl friend, and another couple. However, on cross-examination, Dobis testified that the defendants had come into the bar at about 10 p.m., had left 10 minutes later, and were not to be seen again. Dobis further testified on cross-examination that Deland had come into the bar with three other people at 9:45 p.m. and had left just before 11. Although Dobis testified that one of Deland\u2019s friends had bought some candy from a girl at about 10:30 p.m., he did not recall being questioned by Deland about some missing money after the purchase. Between 10:30 and 10:45 a Mr. Steer and a friend, and Marge and Ray (Muraski) came into the bar. At about 11 p.m., after Deland had left and just before the police arrived, Dominick Marzovilla came into the bar with George (Buttacavoli), Tom (Capotosto), and Carmen [Rossi]. Dobis further testified that although a neon pizza sign in the window of the bar facing the street was lit, the illumination from it was not very good and he couldn\u2019t see anything out of the window. Dobis didn\u2019t hear any commotion outside all evening and was first aware of the occurrence when he saw the police placing Garrison\u2019s body in the ambulance.\nThomas Capotosto testified that he and his cousin Carmen Rossi drove up behind the victim\u2019s car in the middle of the street. Its engine was running and its headlights were on. Capotosto saw the victim lying in the car and a dark-blue baseball bat in the back seat. Carmen then ran into the bar. Although Capotosto knew both of the defendants, he didn\u2019t see them at all that night.\nDominick Marzovilla testified that he had left Bambi\u2019s at about 10 p.m. and had returned at 10:30 or 10:45 p.m. At 11 p.m. he saw Deland with a girl and another guy, and some men sitting at the bar. Although he knew the defendants, he didn\u2019t see them in the bar that night. Marzovilla further testified that he didn\u2019t notice anything unusual either inside or outside the bar until he went outside at about 11 p.m. and saw Deland and a couple of other people around the car. Marzovilla stated that he then picked up one of the bats. Marzovilla was arrested, gave the police a statement at about 1:30 a.m., and later took them to co-defendant Cozzi\u2019s home. He was later placed in two lineups in the early morning hours of February 24. According to Marzovilla, neither the signs nor the coach light on Bambi\u2019s were very bright. He could not recall whether the coach light was on.\nRonald Deland had known both of the defendants for several years. He arrived at Bambi\u2019s at about 10:45 p.m. with Dan Cosentino, Carol Romanelli, and Mary Ellen Setlack, and stayed about 15 or 20 minutes until shortly after 11 p.m. Although Deland was not certain that he had seen co-defendant Cozzi in the bar that night, he was certain that he had seen defendant Duarte. Deland first testified that at about 11 p.m. he heard some noise outside and saw some guys running toward the door. He then asked Dan Cosentino if he wanted to leave. Cosentino replied yes, but found his change from the candy purchase missing from the bar. Deland further testified that he first asked bartender Dobis and then asked defendant Duarte, who was sitting next to Cosentino, about the missing money. Duarte told Deland that he hadn\u2019t taken the money. Later, Deland testified that his conversation with Duarte had occurred before he heard the noise outside. Deland further stated that he looked through the bar\u2019s window and saw a man striking the passenger side window of a car stopped in the middle of the street. Although Deland told Detective Caliendo that night that the man he saw striking the car was Duarte, he testified at trial that he now knew that it wasn\u2019t. Deland testified that both the bar and the night were dark, that there were no lights from the gas station next door to the bar, that he couldn\u2019t say that the street was well lit, that it was about 50 to 60 feet between the car and the streetlight, and that there were parked cars all around. Deland was wearing a rust-colored suit that night.\nCarol Romanelli testified that she came into the bar at about 10:30 p.m., and that the defendants came in a few minutes later. She testified that they were sitting there when some people came in and said there was trouble outside.\nRay Muraski testified that he and his wife Margaret came into Bambi\u2019s at about a quarter of 10 or 11 p.m. and stayed about 15 or 20 minutes. He stated that four or five people were at the foozball machine near the window, that he didn\u2019t see anyone leave, and that he didn\u2019t notice any excitement or anything going on. Margaret Muraski testified that two or three people came into the bar at about 11 p.m., and that there were two couples playing the foozball machine while she was there.\nJoseph Mortimer, an employee of the Bureau of Identification of Illinois, with 30 years experience in fingerprint identification, testified that a latent palm print found on the hood of the car did not match that of defendant Duarte. However, Mortimer further testified that 13 characteristics of a latent thumbprint found on the inside passenger door matched that of defendant Duarte. On cross-examination, Mortimer acknowledged that the prints were not identical due to the number of points of dissimilarity. A latent print found on one of the bats matched that of Dominick Marzovilla.\nPhilip Sylvester, an Elmwood Park police officer, was the only witness called by defendant Duarte. He testified that while on duty on February 25, 1976, he was using the washroom of the Elmwood Park police station which was immediately adjacent to the cell in which co-defendant Cozzi was being detained. Sylvester heard an individual enter Cozzi\u2019s cell and ask how he was doing. At this point in Sylvester\u2019s testimony, Cozzi\u2019s attorney renewed his objection that the conversation came within the purview of the attorney-client privilege. It was then determined that the unknown person talking with Cozzi was an attorney. The trial court sustained defense counsel\u2019s objection to the officer\u2019s testimony when the officer testified that the attorney then asked Cozzi \u201cwhat happened?\u201d Defendant Duarte\u2019s counsel then made an offer of proof that, if allowed to testify, Officer Sylvester would testify that in response to the question \u201cwhat happened?\u201d co-defendant Cozzi stated that he did it, and that \u201cBlank was with me, but he didn\u2019t have anything to do with it.\u201d According to defendant\u2019s counsel, Officer Sylvester also would have testified that he attempted to make as much noise as possible in the washroom, that he didn\u2019t stay there any longer than was necessary, and that he reported what he had heard to the detectives in the police department.\nAfter defendant\u2019s counsel had completed the offer of proof, the state\u2019s attorney inquired whether or not it was being accepted by the court. The following colloquy ensued:\n\u201cThe Court: It will be accepted by the Court.\nState\u2019s Attorney: Fine, Judge.\nThe Court: The offer of proof is, and again may I state that I will not consider the offer of proof as being any evidence against defendant Cozzi.\u201d\nBernard Mann was then called to testify by Cozzi\u2019s counsel. He testified that he was an attorney who had been called to the police station to represent Cozzi on February 25, 1976, and that he had told Cozzi at that time that he was going to be his lawyer. Cozzi\u2019s attorney then asked Mann what Cozzi had told him. Mann replied that Cozzi had told him that he didn\u2019t do it. Officer Sylvester was not recalled to testify as to the conversation which he had overheard.\nI.\nDefendant Duarte moved to suppress the in-court identification of Patrick Elliot on the basis that the procedures used were unnecessarily suggestive resulting in a very substantial likelihood' of irreparable misidentification. The following alleged pretrial identification procedure improprieties are suggested: (1) the use of custodial photographic identification procedures where a lineup was feasible; (2) the placement of his photograph on the last page of the mug book next to that of previously identified co-defendant Cozzi; (3) the dating of his photograph; and (4) the alleged opportunity of the witness to view him prior to the witness\u2019 identification of his photograph. In denying the defendant\u2019s motion, the trial court stated:\n\u201cIt is the feeling of the Court that the identification process here goes to the weight and credibility to be given the identification testimony.\u201d\nA.\nAt the outset, the defendant contends that the trial court misperceived the applicable law in ruling on the motion, and, by doing so, bypassed the question of whether, under the totality of the circumstances, these allegedly unnecessarily suggestive pretrial identification procedures tainted the witness\u2019 in-court identification.\nThe United States Supreme Court departed from the rule that the manner of an extrajudicial identification affects only the weight, not the admissibility, of identification testimony at trial in United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and in Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (Simmons v. United States (1968), 390 U.S. 377, 382, 19 L. Ed. 2d 1247, 88 S. Ct. 967). Our supreme court also departed from that rule in People v. Blumenshine (1969), 42 Ill. 2d 508, 250 N.E.2d 152, wherein the court stated:\n\u201cIf an accused can support [the] claim [that the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law] the evidence of identification is rendered inadmissible and not simply affected as to credibility. [Citations.]\u201d (Blumenshine, 42 Ill. 2d 508, 511.)\nHowever, the Blumenshine court did not reverse the defendant\u2019s conviction on the basis of this court\u2019s misperception of the law in ruling on the defendant\u2019s motion. Nor did the courts in the other decisions relied on by the defendant find such an error to be grounds for reversal. Our research has not revealed any other decisions in which such a result obtained. Therefore, we must consider whether the evidence supports the defendant\u2019s claim of the use of constitutionally improper procedures.\nThe impropriety of the pretrial identification procedure is a recognized ground of attack upon a conviction independent of any right-to-counsel claim. (Stovall v. Denno (1967), 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967.) The law is clear \u201cthat convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.\u201d (Simmons, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967.) Applying this standard to the present case, we find that the use of the photographic identification procedure and the manner of its use were not unduly suggestive. Furthermore, it is clear that Elliot\u2019s identification of the defendant was based upon his observation of him at the scene of the crime.\nThe defendant, however, contends that the use of a photographic identification procedure when a lineup was feasible was constitutionally improper in light of the discrepancy between Elliot\u2019s estimate of the defendant\u2019s height and his actual height. There is no legal necessity that an identification of a defendant be made in a lineup. (People v. Moore (1974), 17 Ill. App. 3d 507, 510, 308 N.E.2d 210.) The practice of showing photographs of suspects to witnesses has been approved as essential to effective law enforcement. (People v. Brown (1972), 52 Ill. 2d 94, 99, 285 N.E.2d 1.) Although our supreme court has expressed its disapproval of the use of photographs when a suspect is in custody and a lineup is feasible (People v. Holiday (1970), 47 Ill. 2d 300, 307, 265 N.E.2d 634; see also People v. Jackson (1973), 54 Ill. 2d 143, 148, 295 N.E.2d 462), the court did not establish a per se rule prohibiting the use of photographs under these circumstances. Rather, the court\u2019s position was that such practices are undesirable as they carry with them implications regarding the genuineness of the identifications which follow. Those implications may dissipate under the totality of the circumstances, particularly where the independence of the in-court identification is established. People v. Jackson (1973), 54 Ill. 2d 143, 295 N.E.2d 462.\nApplying these principles to the instant case, we initially do not believe that the discrepancy in the witness\u2019 estimate of the defendant\u2019s height mandated the use of a lineup. The witness testified that he observed the defendant as he was walking toward the car, as he was catapulting over the hood, and as he was crawling into the car. Thus, the discrepancy in the witness\u2019 description of the height of the defendant and his actual height may be attributed to the fact that the witness had a limited opportunity to observe the defendant in a standing position. The defendant does not assert any other discrepancies in the witness\u2019 description to support his claim that the use of the photographic identification procedure affected the genuineness of the witness\u2019 in-court identification. Moreover, as discussed more fully later, we believe that there was sufficient evidence to establish the independent origin of the in-court identification, thereby dissipating any effect the use of photographs, rather than a lineup, may have had on the witness\u2019 pretrial identification.\nThe defendant next contends that the manner in which his photograph was displayed to the witness was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Although it has been noted that the danger of an incorrect identification will be increased if the police display the pictures of several individuals in such a way as to emphasize a single individual (Simmons, 390 U.S. 377, 383, 19 L. Ed. 2d 1247, 1252, 88 S. Ct. 967. P. Wall, Eye-Witness Identification in Criminal Cases 74-75 (1965)), or if they show a suspected accomplice after a viewing of the first suspect, either alone or together with the first suspect (Blumenshine, 42 Ill. 2d 508, 512), each case involving pretrial initial identification by photographs must be considered on its own facts (Simmons, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967).\nIn the instant case, the defendant first complains of the presence of the date on which the identification was made on his photograph. In light of the fact that the witness testified that he did not notice the date on the photograph, we fail to see how its mere presence can be successfully claimed to have had an effect on the witness\u2019 identification. The answer is that it cannot. (See People v. Hart (1973), 10 Ill. App. 3d 857, 294 N.E.2d 63.) Moreover, while an opportunity for an impermissible foreseeable encounter with the defendant may have existed when Elliot arrived at the police station due to the proximity of time and space (see People v. Hatcher (1977), 45 Ill. App. 3d 374, 390, 359 N.E.2d 1157), the record does not clearly establish that such an encounter occurred prior to the witness\u2019 identification of the defendant\u2019s photograph. The witness\u2019 statement that \u201cI saw him before I looked at the Mug Book, before I saw him on February 23rd\u201d on which the defendant relies is equivocal and subject to many interpretations. In light of the witness\u2019 later testimony that he had seen the defendant after he had viewed the photographs, we find the former statement insufficient to support the defendant\u2019s claim. Finally, although the defendant\u2019s photograph was placed on the same page of the mug book as that of co-defendant Cozzi, there is nothing in the record to suggest that the police in any way indicated to the witness that the defendant was a suspect or even that any suspect\u2019s photograph was included in the display. Even if the witness had been told that the police had a suspect and that he was included in the display, we would not necessarily have found the procedure unduly suggestive. (See People v. Moore (1979), 73 Ill. App. 3d 510, 516, 392 N.E.2d 64.) Under these circumstances, we do not find the mere presence of the defendant\u2019s picture on the same page as that of the co-defendant sufficient to conclude that the procedure gave rise to a very substantial likelihood of irreparable misidentification.\nB.\nHowever, even assuming arguendo that the pretrial procedure was unnecessarily suggestive, the in-court identification may nevertheless be admissible if from the totality of the circumstances it is shown by clear and convincing evidence that the in-court identification was based on observations of the defendant other than during the arguably improper identification procedure. (See United States v. Wade (1967), 388 U.S. 212, 239-40, 18 L. Ed. 2d 1149, 1164, 87 S. Ct. 1926; People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.) The burden is on the State to establish by clear and convincing evidence that the in-court identification was not tainted by the allegedly illegal procedure but rather was of an independent origin. People v. Hatcher (1977), 45 Ill. App. 3d 374, 388.\nReliability is the linchpin in determining the admissibility of identification testimony. (Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) In assessing the reliability of an identification, the court must weigh the corrupting effect of the allegedly suggestive identification itself against the indicators of a witness\u2019 ability to make an accurate identification. (Manson, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243; Manson, 432 U.S. 98, 129, 53 L. Ed. 2d 140, 163, 97 S. Ct. 2243 (Marshall, J., dissenting).) The indicators of a witness\u2019 ability to make an accurate identification include the opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the length of time between the crime and the confrontation. Manson, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243.\nElliot testified that he observed the defendant for approximately one to two minutes as he walked from in front of Bambi\u2019s toward the victim\u2019s car, as he struck the passenger side of the windshield, and as he crawled into the front seat of the car. He further testified that he had an unobstructed view of the crime scene from his bedroom window which was only about 55 feet from the victim\u2019s car. Detective Caliendo\u2019s testimony that the scene was well lit was supported by Elliot\u2019s testimony that there were two streetlights lit at the time and that the Miller\u2019s sign provided a strong light source. Although Elliot testified that he had telephoned the police as he watched the occurrence, his testimony as to how he looked through the four-inch opening in the window to the car suggests an absence of any distracting circumstances and an opportunity for a concentrated degree of attention. The only inaccuracy in Elliot\u2019s prior identification was the defendant\u2019s height. As noted previously, that inaccuracy may be attributed to the defendant\u2019s movements throughout the occurrence. There is nothing in the record to suggest that Elliot demonstrated any uncertainty in his identification of the defendant\u2019s photograph which he viewed only about two days after the crime. Under these circumstances, we are of the opinion that Elliot was close enough for a sufficient length of time under conditions adequate for observation, and thus had the opportunity to see, observe, and later be able to make a positive in-court identification. (See People v. Doss (1975), 26 Ill. App. 3d 1, 16, 324 N.E.2d 210.) Thus, regardless of any alleged suggestiveness of the pretrial identification procedure, we find that Elliot\u2019s in-court identification was properly admitted.\nII.\nThe defendant next contends that the State failed to prove him guilty of the murder of Patrick Garrison beyond a reasonable doubt. He claims that a reasonable doubt was raised by (1) Ronald Deland\u2019s testimony placing the defendant inside Bambi\u2019s at the time of the occurrence; (2) the failure to find the defendant\u2019s fingerprints on the baseball bat; (3) the failure to match the palm print found on the hood of the car with the defendant\u2019s; and (4) by the circumstances under which Elliot witnessed the events.\nWe first observe that Deland\u2019s testimony was conflicting in several respects. Although he first stated that he was talking to the defendant when he heard the occurrence outside, he later stated that this conversation occurred before he heard the noise outside. Secondly, although he stated at trial that the person he saw striking the passenger side of the window was not the defendant, he had given a statement to the police shortly after the crime in which he had stated that that person was the defendant. The trier of fact determines the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Carroll (1977), 45 Ill. App. 3d 1063, 1067, 360 N.E.2d 491.) We are of the opinion that the discrepancies in Deland\u2019s testimony could readily cause one to question his credibility and to afford it little, if any, weight. A finding of guilt will be disturbed only where the totality of the evidence is so unreasonable, improbable, and unsatisfactory as to leave a reasonable doubt as to the defendant\u2019s guilt. (People v. Catlett (1971), 48 Ill. 2d 56, 64, 268 N.E.2d 378.) Considering the remaining evidence discussed below, we find Deland\u2019s testimony insufficient to cause us to interfere with the trial court\u2019s finding of guilt.\nIt has often been held that the identification testimony of a single eyewitness is sufficient to convict if the identification is positive and the witness is credible. (People v. Catlett (1971), 48 Ill. 2d 56, 63, 268 N.E.2d 378; People v. Doss (1975), 26 Ill. App. 3d 1, 324 N.E.2d 210.) We have previously determined that Elliot\u2019s identification of the defendant satisfied the test of a positive in-court identification despite the minor discrepancy in his initial description. There is nothing in the record to suggest that this witness was not to be believed.\nFinally, the absence of the defendant\u2019s fingerprints on the bat and his palm print on the car supports either the conclusion that they were not there because the defendant did not commit the crime or the conclusion that the defendant\u2019s prints were simply not recovered. Considering Elliot\u2019s positive identification testimony and the presence of defendant\u2019s thumbprint on the outside of the passenger car window, we find the latter conclusion more tenable.\nWe are satisfied there is sufficient evidence which if the trial court elected to believe, supports the finding of guilt beyond a reasonable doubt. For all of the foregoing reasons, we are of the opinion that the State sustained its burden of proving the defendant guilty beyond a reasonable doubt.\nIII.\nThe defendant next contends that the trial court committed reversible error in excluding Officer Sylvester\u2019s testimony concerning the conversation he overheard between co-defendant Cozzi and his attorney. The State responds that the evidence was admitted and considered by the court, and, therefore, that the defendant\u2019s argument is devoid of any merit. The State suggests that the excerpt from the trial record quoted on page 7 of this opinion supports its argument. Our review of the trial record causes us to conclude that the trial court was accepting the offer of proof, not as evidence, but for the record so as to preserve, for review, defendant\u2019s position.\nIn order to evaluate this issue we must first consider the purpose of an offer of proof. It is to initially indicate to the trial court and opposing counsel, out of the presence of the jury, the substance of the evidence expected to be offered, so that opposing counsel may object to, and the court may rule on, the admissibility of the evidence presented in the offer of proof. (See People v. Robinson (1977), 56 Ill. App. 3d 832, 837, 371 N.E.2d 1170; Peluso v. Singer General Precision, Inc. (1977), 47 Ill. App. 3d 842, 854, 365 N.E.2d 390; Algozino v. Welch Fruit Products Co. (1951), 345 Ill. App. 135, 142, 102 N.E.2d 555.) If the trial court sustains an objection to the evidence presented in the offer of proof, it then serves to preserve the evidence for a reviewing court\u2019s determination of the propriety of the trial court\u2019s ruling. (See People v. Brown (1975), 27 Ill. App. 3d 569, 577, 327 N.E.2d 51.) Of course, in a bench trial the primary purpose of an offer of proof is to preserve the record for the offeror.\nAlthough our experience teaches us that offers of proof are often made by the attorney\u2019s recitation of the testimony which he expects to elicit from the witness, we suggest that this method be used only when the witness is unavailable and the offer is sufficiently specific. (See Chicago City Ry. Co. v. Carroll (1903), 206 Ill. 318, 328-29, 68 N.E. 1087; McCormick \u00a751, at 112 (2d ed. 1972); R. Hunter, Trial Handbook for Illinois Lawyers \u00a777.10, at 795 (4th ed. 1972).) We make this suggestion because if it is determined that the witness\u2019 testimony as recited by the attorney in his offer of proof is admissible, the witness must then be called to testify to the facts previously presented in the offer of proof, for it is fundamental that the attorney\u2019s recitation of the witness\u2019 testimony cannot be considered by the court or jury as evidence. First, the attorney\u2019s recitation is merely what he expects to elicit from the witness. What the attorney expects and what in fact the witness testifies to may be two entirely different matters. (See Schmitt v. Chicago Transit Authority (1962), 34 Ill. App. 2d 67, 76-77, 179 N.E.2d 838.) Secondly, to accept the attorney\u2019s recitation as evidence would deprive opposing counsel of the opportunity to cross-examine the witness.\nWhen defendant called Officer Sylvester, Cozzi objected to the testimony on the basis that it violated the attorney-client privilege. The trial court sustained the objection and the offer of proof followed. Thus intertwined with the question of the offer of proof is the interesting question concerning the attorney-client privilege as to co-defendant Cozzi.\nThe attorney-client privilege exists in order that one who is, or seeks to become a client, may consult freely with counsel without fear of compelled disclosure of information communicated by him to the attorney whom he has employed or seeks to employ. (People v. Adam (1972), 51 Ill. 2d 46, 48, 280 N.E.2d 205, cert. denied (1972), 409 U.S. 948, 34 L. Ed. 2d 218, 93 S. Ct. 289.) The essentials of its creation and continued existence have been defined as follows: \u201c(1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived.\u201d (People v. Adam (1972), 51 Ill. 2d 46, 48, 280 N.E.2d 205; 8 Wigmore, Evidence \u00a72292 (McNaughton rev. 1961).) The one who asserts the privilege has the burden of proving it; the mere assertion that the testimony is barred by the attorney-client privilege is not sufficient. Shere v. Marshall Field & Co. (1974), 26 Ill. App. 3d 728, 730, 327 N.E.2d 92.\nBernard Mann, called by Cozzi after defendant\u2019s offer of proof, testified that he was an attorney who was called to the police station on February 25, 1976, to represent Cozzi. There is nothing in the record to suggest that Mann was acting in a capacity other than as Cozzi\u2019s attorney. From Mann\u2019s further testimony it is also apparent that his conversation with Cozzi at the police station related to the murder of Patrick Garrison. Thus, the record establishes that client Cozzi sought legal advice from an attorney in his capacity as such and had a conversation with him relating to that purpose.\nHowever, the defendant contends that this conversation was not made in confidence because of the fact the washroom adjoined the cell and it is \u201cpresumed\u201d that the conversation could be heard in the washroom. We do not think the following cases, suggested by defendant, support his position: Scott v. Aultman Co. (1904), 211 Ill. 612, 71 N.E. 1112; People v. Cooper (1954), 307 N.Y. 253, 120 N.E.2d 813. There is nothing in the record establishing that co-defendant Cozzi either in fact heard the officer, or saw him enter the washroom at any time prior to or during his conversation with his attorney. Under these circumstances, we are of the opinion that the record fails to support the defendant\u2019s claim that co-defendant Cozzi did not have a reasonable belief that his conversation was had in confidence. To find otherwise on the facts presented in this case would virtually destroy the ability of a client to consult freely with his attorney while in custody.\nMoreover, it is generally agreed that the attorney-client privilege is the client\u2019s and his alone to assert. (McCormick, Evidence \u00a796 at 195 (2d ed. 1972).) Cozzi\u2019s defense counsel asserted the attorney-client privilege as a bar to the officer\u2019s proffered testimony as to Cozzi\u2019s statement to Mann, \u201cYes, I did it. Blank was with me, but he didn\u2019t have anything to do with it.\u201d The trial court stated that this testimony as recited by the defendant\u2019s counsel would not be considered against co-defendant Cozzi. Relying on Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, and Lanza v. New York State Joint Legislative Com. (1957), 3 N.Y.2d 92, 143 N.E.2d 772, the defendant maintains that under these circumstances his sixth and fourteenth amendment right to present a defense should take precedence over Cozzi\u2019s right to prohibit the disclosure of his confidential conversation with his attorney. We disagree.\nError in the exclusion of evidence is committed only if the evidence is material and relevant; the offering party has the burden of showing relevance and materiality (United States v. Bookie (7th Cir. 1956), 229 F.2d 130, 133). In Chambers, the supreme court held that the defendant\u2019s right to cross-examine a witness and to admit into evidence that witness\u2019 hearsay confession to the murder for which the defendant had been charged took precedence over certain State evidentiary rules where such evidence was critical to the defendant\u2019s defense, was corroborated by other evidence and offered under circumstances that provided considerable assurance of reliability, and where the witness was subject to cross-examination by the State. (Chambers, 410 U.S. 284, 294-303, 35 L. Ed. 2d 297, 308-13, 93 S. Ct. 1038, 1045-49; cf. People v. Craven (1973), 54 Ill. 2d 419, 427-29, 299 N.E.2d 1.) In Lanza, the privileged communication was sought by a legislative committee investigating parole administration; it was not sought for the purpose of using it in court as evidence for or against a criminal defendant.\nIn the instant case, Officer Sylvester would have testified that although Cozzi gave a name, he could not understand it, hence the use of the term \u201cBlank\u201d to describe the person with Cozzi at the time. There is nothing in the record establishing whether the defendant was or was not that unknown person. Cozzi did not testify at the trial. Under these circumstances, we are of the opinion that the defendant has not only failed to satisfy the high standards of Chambers, but also has failed to sustain his burden of proving even the materiality and relevancy of co-defendant Cozzi\u2019s statement to his defense.\nEven assuming relevancy and materiality had been established, a police officer\u2019s repetition of a co-defendant\u2019s out-of-court statement implicating another defendant is hearsay when the statement is being used to prove the truth of the matter asserted in the statement. (People v. Allen (1976), 36 Ill. App. 3d 821, 827, 344 N.E.2d 825.) It is well settled that an extrajudicial statement is admissible only against the defendant making it. (People v. Clark (1959), 17 Ill. 2d 486, 490, 162 N.E.2d 413.) Where, as here, admissible and inadmissible testimony are included in an offer of proof, the entire offer may be rejected. People v. Robinson (1977), 56 Ill. App. 3d 832, 37 N.E.2d 1170.\nFinally, although co-defendant Cozzi waived his attorney-client privilege by calling Mann to testify to the same conversation (see 8 Wigmore, Evidence \u00a72327 (McNaughton rev. 1961)), the defendant did not seek to reopen his case to recall Officer Sylvester. The defendant thereby waived his argument that the attorney-client privilege had been waived by co-defendant Cozzi.\nFor all of the foregoing reasons, we find that Officer Sylvester\u2019s testimony was properly excluded by the trial court. The judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nSTAMOS, P. J., and HARTMAN, J., concur.\nA latent fingerprint is defined as a fingerprint obtained at the scene of a crime and usually scarcely visible but capable of being developed for study. Webster\u2019s Third New International Dictionary 1275 (1976).", "type": "majority", "author": "Mr. JUSTICE DOWNING" } ], "attorneys": [ "John E. Howlett, Jr., of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James Veldman, and Bruce Brandwein, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL DUARTE, Defendant-Appellant.\nFirst District (2nd Division)\nNos. 77-1481, 78-523 cons.\nOpinion filed December 11, 1979.\nRehearing denied January 11, 1980.\nJohn E. Howlett, Jr., of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, James Veldman, and Bruce Brandwein, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0110-01", "first_page_order": 132, "last_page_order": 148 }