# People v. Sanders

> Appellate Court of Illinois · March 10, 1972 · 4 Ill. App. 3d 494

URL: https://www.frixlaw.com/law-library/cases/9731927

## Case

- **Full name:** The People of the State of Illinois, Plaintiff-Appellee, v. Lamar Sanders, A/K/A Michael Jones, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** March 10, 1972
- **Citations:** 4 Ill. App. 3d 494; 280 N.E.2d 269; 1972 Ill. App. LEXIS 1657
- **Precedential status:** Published
- **Opinion:** Dissent by Jones
- **Judges:** Eberspacher, Jones
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731927

## Opinion text

Mr. JUSTICE JONES dissenting:
I agree that the one man show-up as conducted at the police station approximately three horns after the robbery was suggestive and unwarranted under the circumstances and that under the authorities cited the testimony of the complaining witness regarding the identification of the defendant at the show-up should be suppressed. The majority have found that the show-up at the police station was so suggestive that it influenced the identification by the complaining witness to such an extent that it deprived defendant of due process of law. The majority state, “The record does not indicate that Mrs. Schmidts identification of the defendant was clear, convincing and untainted or of an independent origin.” The majority conclude their opinion by stating, “* * # there appears to be no identification testimony upon which a conviction could stand ft ft ft ”
I disagree with the findings and the conclusion reached by the majority and must respectfully dissent.
Following the case of People v. Blumenshine, 42 Ill.2d 508 , 250 N.E.2d 152 , it has become firmly established, consistent with Federal authorities, that an in-court identification may be admissible, even when the pre-trial identification is not proper, if it is shown by clear and convincing evidence that the courtroom identification had an independent origin arising from an earlier uninfluenced observation of the defendant. (People v. Martin, 47 Ill.2d 331 , 265 N.E.2d 685 ; People v. Perry, 47 Ill.2d 402 , 266 N.E.2d 330 ; People v. Davis, 126 Ill.App.2d 255 , 261 N.E.2d 771 .) Granted that the one man show-up at the police station was unwarranted, suggestive and properly suppressed, was there an independent origin for the in-court identification made by the robbery victim in this case?
When called as a witness by the People the complaining witness testified that she was the head cashier for the Tri-City grocery store and in charge of the office. She was on duty at 7:30 on the evening in question. While putting the store stamp on checks she heard a noise and looked around and saw two colored men walk into the office. The first to enter was about five feet eight inches and was heavy. He said something to the effect “give us money, give us all of it.” She turned around halfway and saw the other fellow come around him. The smaller one (the defendant) was more or less facing her. (She then made an in-court identification of defendant.) At that time he had on a black felt hat, a mans hat, a blue shirt, dark trousers, and a black sort of like raincoat or all weather coat, long like a top-coat or a three-quarter length. When he walked in up around the other fellow he had a gun and he pointed it at her. She did not remember exactly what he said but knew they wanted money. He pulled the drawer open and then reached in and took it. The one with the gun started backing down the steps and said “keep quiet” or something like that. She has never been able to identify positively the heavier person. She has identified the smaller one as Michael Jones (defendant). On cross examination complaining witness testified that she had never seen defendant prior to the robbery but saw him later on that evening at the police station. The police picked her up at a bowling alley while she was participating in a contract meeting and took her to the police station to see if she could identify these two fellows. They had brought mug shots to the store earlier in the evening but defendant’s picture was not in the group. She also stated she first talked with the police officer about what occurred at about 7:30 just a few minutes after it happened. She described defendant as about five foot or five foot two inches and about one hundred pounds and again stated that when he was in the store he was wearing a man’s black hat which looked like it was felt, with a narrow brim and was like a dress hat and he was not wearing any kind of glasses. He had on a black coat about three-quarter length outer garment. The closest point the five feet two individual would have gotten would have been within three feet.
The trial court conducted an in camera hearing for the purpose of determining whether or not the complaining witness had an independent source for her in-court identification of the defendant. The hearing was prompted by defendant’s motion to suppress all the identification testimony given by the complaining witness. The complaining witness was questioned extensively during the in camera hearing. She testified that the office was “pretty light,” that there are several rows of florescent lights running the length of the store and it would have been brighter than the courtroom. She first observed the smaller of the two when they walked into the office. She turned about halfway and was facing the smaller one. He had a black cap and “three-quarter length like topcoat.” Blue shirt and dark trousers. He then walked up around the heavier fellow and she and defendant were standing almost face to face. He was in that position about one minute. She had never seen this person before. On cross-examination she stated that when she viewed the defendant at the show-up he was then wearing a hunting hat, avocado with orange or yellow or beige mixed it, and he had on a blue shirt and blue trousers and the same black coat. The cross-examination continues as follows:
“Q. These are not the same clothes you had previously seen him in are they?
A. No.
Q. In what manner and way did you know this was one and the same person?
A. Because of his size and face.
Q. Now, when you were testifying from the stand were you testifying from your mind as you vizualized the individual the night of November 14, 1969 at seven thirty in the evening?
A. At the store, yes.
Q. And is this man who is personally in the courtroom the person in the Tri-City store that night?
A. Yes.
Q. And did that view at the police station effect [sic] your testimony as to his identification at the trial yesterday?
A. I knew when I seen him at the police station that night he was the same person who had been in the store earlier and I knew yesterday he was the same person that was in the store that night.
Q. When you testified that you may have given varying descriptions as she just read back in your answers, what did you mean by that?
A. Well, my judgment is poor. I could guess someone as being five foot eight and they could be five foot ten, but I am five foot five and one half inches and I knew that he wasn’t as tall as what I am.
Q. So that the person that held up the store was not as tall as you were?
A. I didn’t think he was although he had on a hat, (Emphasis supplied. )
Q. So that the thing you recall that was the same about these two individuals or the individual who you have identified was his face and his size?
A. Right. Mostly his face.
Q. Did the view you had of him at the police station effect [sic] at all the positiveness of you [sic] identification of him now?
A. No."
The only inconsistency in the testimony of the complaining witness relates to the size of the defendant. She testified that defendant was shorter than she but qualified this by acknowledging she had poor judgment on height and she did not think defendant was as tall as she was “although he had on a hat.” (Emphasis supplied.) The testimony of defendant’s alibi witnesses, an attorney and a barmaid, which placed him in a hardware store and a tavern at about the time of the robbery is entirely reconcilable with defendant’s participation in the robbery. The alibi aspect of the unquestioned presence of the defendant at the hardware store is particularly suspect since he appeared in a line at the cash register but, according to the attorney, left the store without any packages and the time would or could have been immediately following the robbery about three blocks away.
To consider the evidence set forth above and then decide, as a matter of law, that there is no clear and convincing evidence that the courtroom identification of defendant had an independent origin arising from an earlier uninfluenced observation of the defendant is to ignore legal precedent and discard common sense. In my opinion, not only is there sufficient, there is an excess of evidence from which it could be found that there was indeed an independent origin for the in-court identification of defendant and that the trial court was correct in its finding, made following the in camera hearing, and the verdict and judgment of the trial court should be affirmed.
Appropriate here is the comment of the Supreme Court in People v. Davis, 45 Ill.2d 514 , 261 N.E.2d 314 , “Clearly the trial court considered that the identification of the defendant was based on observations of the defendant made by the witnesses independent of their having viewed him at the police station.” While it is true that where a conviction rests upon an identification which is doubtful, vague, and uncertain, it will be reversed. (People v. Gardner, 35 Ill.2d 564 , 221 N.E.2d 232 ; People v. Cullotta, 32 Ill.2d 502 , 207 N.E.2d 444 .) However, this is a question for the trier of fact whose duty it is to consider contradictory testimony and determine the credibility of the witnesses and the weight to be accorded their evidence. (People v. Coulson, 13 Ill.2d 290 , 149 N.E.2d 96 ; People v. Davis, 126 Ill.App.2d 255 , 261 N.E.2d 771 .) It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses. People v. Novotny, 41 Ill.2d 401 , 244 N.E.2d 182 .
The majority are concerned with the discrepancies in the identification testimony of Mrs. Schmidt. But discrepancies and inconsistencies in the testimony of identification witnesses are neither new nor unique in our law. They are properly resolved by the trier of fact along with other matters going to the weight and credibility to be accorded witnesses. To cite but one example, particularly germane here, the case of People v. Watkins, 46 Ill.2d 273 , 263 N.E.2d 115 , was a case where a jury’s determination of guilt was allowed to stand despite the fact that a police officer who had been shot by defendant initially described his assailant as being six foot two inches tall and weighing one hundred eighty pounds with a natural hair style but defendant proved to be five foot eleven inches tall weighing one hundred forty-five pounds with processed hair, a moustache and a faint goatee.
On the basis of the record presented in this case I would affirm the trial court. But absent outright affirmance the case should be remanded for a new trial in which evidence of the improper one man show-up is withheld from the jury.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731927. Public record. Not legal advice.