People v. Smith (52 Ill. App. 3d 583, 1977)

Mr. JUSTICE GUILD

delivered the opinion of the court:

Defendant, Melvin Lee Smith, was found guilty of armed robbery in a jury trial and sentenced to 4 years to 4 years and 1 day in the State penitentiary.

The issues presented in this appeal are whether the defendant was found guilty beyond a reasonable doubt where there was a discrepancy in the description given by the single eye-witness; and whether various statements made during closing arguments by the prosecutor and not objected to by the defense were prejudicial to the defendant’s right to a fair trial or to his right to remain silent.

At approximately 1:15 a.m. on March 26,1974, three armed black males robbed the Hilton Inn in North Aurora and approximately $200 was taken. The robbery began when a black male, wearing a wide brimmed hat and a lavender and grey coat with leather buttons, confronted the night auditor, Claudia Jean Watson, with a handgun and announced a robbery. Two other black males then entered the lobby and approached the hotel desk. One of these men was also armed with a handgun and wore a black leather jacket, a stocking cap and had the lower half of his face concealed. The third man wore a wide brimmed hat and a greyish coat. The man with his face partially concealed handed his weapon to the man in the greyish coat and leaped over the hotel desk. The man with the greyish coat then pointed the weapon at Miss Watson, who was standing facing him approximately two feet away. Money was taken from the hotel cash register, the petty cash box and Miss Watson’s purse and given to the man in the greyish coat.

The area of the hotel desk was well lit by fluorescent lights and Miss Watson saw the face of the man with the greyish coat for approximately 2-3 minutes before being ordered to lie on the floor. She also observed his face for 45 seconds to one minute as he leaned over the hotel desk while she was on the floor. She was then ordered by the robbers to turn her face to the floor.

The three robbers then left the Hilton Inn, leaving Miss Watson lying on the floor behind the hotel desk. Shortly thereafter she called the North Aurora police department. The police investigation resulted in the arrest of the defendant as the robber in the greyish coat after Miss Watson identified his photograph from a group of eight or nine pictures of black males shown to her by the police on March 31, 1974. At a preliminary hearing on April 29, 1974, Miss Watson testified as to her photographic identification of the defendant and described him as she perceived him on the night of the robbery. The presence of the defendant at the preliminary hearing was waived by the defense and Miss Watson was not called upon to identify anyone present in the courtroom on that date.

At a lineup on September 19, 1974, Miss Watson viewed 9-10 seated black males. At that time Miss Watson positively identified the defendant. At trial the State again presented Miss Watson, who testified as to the events of March 26, 1974. In open court she positively identified the defendant as the robber who wore the hat and the greyish coat. Miss Watson estimated the height of the man in the greyish coat as being 5'8" tall, about 6 inches taller than herself. On cross-examination, Miss Watson recalled seeing three black men in the courtroom at the preliminary hearing but she testified that she did not see the defendant that day. In addition to the testimony of Miss Watson, the State presented Assistant State’s Attorney Thomas Hogan, who testified as to the identification process which took place at the lineup.

For the defendant, Betty Walls testified that she had lived with the defendant until one week before the trial and that on the night in question she and the defendant were home playing cards until the early hours of the morning when they then went to bed. On cross-examination Miss Walls stated that the defendant would not let the investigator from the State’s Attorney’s office interview her prior to the trial.

The defendant testified that he played cards with Miss Walls until approximately 2 a.m. when he and Miss Walls went to bed. The defendant then testified that he was seated in the rear of the courtroom with two other black men during the preliminary hearing.

In weighing the sufficiency of evidence in a criminal case, the finding of the trier of fact will be affirmed unless the court of review can form a reasonable and well-founded doubt as to the defendant’s guilt. (People v. Jones (1975), 60 Ill. 2d 300, 325 N.E.2d 601.) Defendant contends that such doubt is raised by various elements of the eye-witness testimony.

It is settled that a single positive and credible witness who had an ample opportunity to observe the accused is sufficient to support a conviction, even though such testimony is contradicted by the alibi testimony of the accused. People v. Jones; People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631; People v. Watkins (1976), 44 Ill. App. 3d 73, 357 N.E.2d 1376.

It is defendant’s contention that Claudia Watson was not credible in that she consistently estimated his height at 5'8" and he testified that he was 6'2" tall. In addition, the witness did not observe whether the defendant wore platform shoes as did one of the other robbers, nor could the witness state positively whether the defendant had a light moustache on the day of the robbery due to the fighting in the hotel lobby. Defendant also places great emphasis on the fact that the witness testified at trial that she did not see the defendant in the courtroom at the preliminary hearing but thought she remembered three black men being in the room. Defendant testified that he was present in the rear of the courtroom on that day.

Precise accuracy in describing facial characteristics, hair, height and weight, is unnecessary where the in-court identification is positive. Experience tells us that an identification is not usually made by distinguishing separate features but by the total impression made upon the witness. (See People v. Catlett (1971), 48 Ill. 2d 56, 268 N.E.2d 378 (defendant’s moustache not mentioned by witness); People v. Miller (1964), 30 Ill. 2d 110, 195 N.E.2d 694 (defendant’s facial scar not noted by witnesses); People v. Summers (1977), 49 Ill. App. 3d 70, 75, 362 N.E.2d 1347, 1353 (discrepancy as to 5- or 6-inch variance in height and whether defendant had a moustache); People v. Gant (1974), 18 Ill. App. 3d 61, 309 N.E.2d 265 (police witnesses at inquest could not describe defendant in detail but positively identified him at trial); People v. Calhoun (1971), 132 Ill. App. 2d 665, 270 N.E.2d 450 (discrepancy in description of defendant’s height of approximately 4U" and weight of approximately 25 pounds and failure to mention moustache did not raise reasonable doubt).) It is clear that the variance between the height estimate by the witness and the actual height of the defendant, and her failure to note whether or not the defendant wore a moustache are not fatal to the credibility of the witness as a matter of law. The fact that Claudia Watson did not see the defendant in the courtroom at the preliminary hearing also fails to impress us as evidence of her lack of credibility. Neither does it render her identifications any less positive. The record does not relate that she was ever asked to identify anyone present at the preliminary hearing. The sole evidence of the defendant’s presence is his own brief and uncorroborated statement. Assuming arguendo that his failure to identify the defendant did raise a question of Claudia Watson’s credibility, the jury clearly resolved it in her favor. We do not find that choice unreasonable.

The focus of any case involving an identification is the extent of the witness’ opportunity to form an independent impression of the offender at the scene of the crime. Where the circumstances do not afford a favorable opportunity for positive identification that evidence may not be sufficient to sustain guilt beyond a reasonable doubt where faced with a plausible alibi. (See People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232; People v. Cullotta (1965), 32 Ill. 2d 502, 207 N.E.2d 444; People v. Reese (1973), 14 Ill. App. 3d 1049, 303 N.E.2d 814.) However, in the instant case the record reveals that Claudia Watson closely observed the defendant’s face for 2-3 minutes at a distance of 2 feet in a well-lighted hotel lobby and for an additional 45 seconds while she lay on the floor. The lack of opportunity for the witness to note the type of shoes worn by the defendant, the insufficiency of the lighting as to color and texture, and the shading of his face by the brim of his hat do not, in our view, create of themselves circumstances unfavorable to positive identification.

Although proof of alibi was offered by the defense, the determination of the issues of identification and credibility were within the province of the jury. Their decisions regarding these matters were not so unreasonable, improbable or unsatisfactory as to be disturbed by this court on review. See People v. Donald (1963), 29 Ill. 2d 283, 194 N.E.2d 227.

The next issue raised in this appeal involves various comments made by the prosecutor during his closing arguments. None of the comments complained of was objected to by the defense at the time they were made, although the issue of their alleged impropriety was raised during defendant’s post-trial motions.

The general rule applicable in this situation is that failure of the defense to make a timely objection to improper comments of the prosecutor during final arguments waives consideration of such comments on appeal unless they are plainly a material factor in the conviction and substantially prejudiced the defendant’s right to a fair trial. (People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590; People v. Moore (1973), 55 Ill. 2d 570, 304 N.E.2d 622; People v. Skorusa (1973), 55 Ill. 2d 577, 304 N.E.2d 630; People v. Pugh (1977), 49 Ill. App. 3d 174, 363 N.E.2d 1212; People v. Ambrose (1975), 28 Ill. App. 3d 627, 329 N.E.2d 11; People v. Mackins (1974), 17 Ill. App. 3d 24, 308 N.E.2d 92.) However, care must be exercised in the application of this rule for, as our Supreme court has stated:

“Each case of this kind must be decided upon its own facts." (People v. Weathers (1975), 62 Ill. 2d 114, 120, 338 N.E.2d 880, 883.)

Consequently, we shall examine each of the comments individually in the light of the whole record.

First, defendant raises as plain error the following prosecutorial comment:

“Okay. Now, I also would not like to see anybody here put this man back out on the street by saying: ‘Hey, that’s a pretty neat trick, they hid him in the Courtroom,’ you know.

Now, law is not tricks. Law is being up front. Now, you have been around the Courthouse to know that you have seen the mass confusion and crowded Courtrooms. Not every trial is like this where there are just two or three people watching this. There was no showing how many people were watching the hearing that happened last time, how far back he was, what the situation was. I didn’t ask many questions because to me it was ridiculous. Maybe he was in that Courtroom, maybe he wasn’t, but if he wasn’t up in a chair, or they say: ‘Okay, is he — you see those three guys back there, is he one of those three?’ That wasn’t asked in that trial. So this is not rhetoric, this is a defense trick.”

The prosecutor’s selection of the word “trick” to characterize the defendant’s alleged presence in the rear of the court at preliminary hearing was clearly not proper in a judicial proceeding and we do not condone its use. However, we find from a review of the complete record that the prosecutor’s argument in this regard had a basis in the evidence and was, to some small extent, provoked by the closing argument of the defense counsel who stated, in pertinent part:

“