People v. Polk , 143 Ill. App. 3d 698 ( 1986 )

JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial defendants Bernard Polk and Albert Cox were convicted of murder and aggravated kidnaping. Both defendants received concurrent prison terms of 25 years for murder and 20 years for aggravated kidnaping. On appeal defendants contend: (1) a pretrial identification of the defendants was conducted under such suggestive circumstances as to render that identification and subsequent in-court identifications unreliable; (2) it was reversible error for the trial court to refuse to accept a defense instruction concerning the credibility of drug addicts; (3) the failure of defendants’ trial counsel to move to quash defendants’ arrests denied them due process of law and constituted ineffective assistance of counsel.

We affirm.

At trial the following pertinent evidence was introduced. Victoria Green testified that on July 18, 1982, she was living in a third-floor apartment at 914 St. Charles, Maywood, with her brother, Peter Green, and Guy McCoats, the victim. At about noon a tan car pulled up and two men emerged. At the time Victoria did not know who they were, although she had seen Cox once at a store. In court she identified them as the defendants. Both men came upstairs to her apartment door with defendant Cox holding an 18- to 24-inch pipe. As Victoria stood outside her door Guy McCoats approached and asked the defendants if they wanted to see him. They said yes and all three men entered the apartment, leaving Victoria outside. Victoria then heard a gunshot from inside the apartment where she telephoned the police. From that apartment she saw the defendants getting into their car with McCoats. Before they drove away she heard defendant Cox say that McCoats would not be seen alive again if anybody reported this.

The police arrived 45 to 60 minutes later (Victoria had told them to come over without reporting what had happened). As Victoria was telling them what she had seen defendant Cox returned to the scene. Victoria pointed him out to the police, who arrested him. Trial testimony from other witnesses established that Cox was released later that afternoon because the police did not initially find any witnesses to corroborate Victoria’s account. At about 3 p.m. Victoria again spoke to the police and drove through the neighborhood with them in search of McCoats, accompanied by Peter Green.

McCoats’ body was found in a forest preserve at about 4 p.m. He had been shot three times in the head and once in the chest. The defendants were arrested some time after 6 p.m. Victoria testified that later that evening she viewed a lineup and identified both defendants as the men she had seen abduct McCoats. However, two officers who were present at the lineup testified she only identified Cox.

Peter Green testified that he was sleeping on a couch inside their studio apartment when a slamming door awakened him. He saw McCoats and two other men, identified by him in court as the defendants. Defendant Cox was holding an 18-inch pipe. The defendants began arguing with McCoats, with Cox asking McCoats, “where is my dope at.” McCoats said he did not have it. Cox then struck McCoats about the head and shoulders with the pipe. The man began fighting and defendant Polk pulled out a gun and shot toward the ceiling. Defendants grabbed McCoats in a headlock and moved toward the door. Polk asked Peter if he had eight dollars. When Peter said he did not, Polk told him he should get the money if he wanted to see McCoats alive.

According to Peter the defendants then dragged McCoats downstairs and put him in a light brown car. Polk yelled out that McCoats would be freed for eight dollars, also threatening that McCoats would not be seen again if anybody told what had happened. They then drove off with McCoats.

Peter admitted that when the police arrived at 1:15 or 1:30 p.m. he did not tell them what he had seen. He did tell the police at 3:30 what had happened, and when he viewed the lineup that evening he identified the two defendants.

Brenda Williams, who lived in the same building as the Greens, testified that between 12 and 12:30 p.m. on the occurrence date she saw Guy McCoats going up to the third floor with two men. One of those men had a 15- to 18-inch pipe in his hand. She also noticed a brown and beige Buick in the parking lot. After walking to a nearby store and buying some wine she went to a park. She then saw the same car, containing McCoats and the two men, drive toward the forest preserve.

Cheryl Davis testified that in the early evening the day before the occurrence she bought a “one-and-one” (a street drug composed of Talwin and Pyribenzamine, also known as T’s and Blues) from defendant Polk for eight dollars in a second-floor apartment at 15th and Railroad in Maywood. She could hear the voice of defendant Cox in another room of the apartment. Guy McCoats then entered and obtained the same drug from Polk. However, McCoats did not have the eight dollars. When Polk told him he had better give him the money McCoats ran down the stairs, saying he would pay that night or the next day. Polk followed him down, saying, “You will see I don’t take that s — . You are going to give me my eight dollars. You’ll see.”

Davis returned to the same apartment that evening. Defendant Polk was there alone, armed with a gun. He told her to tell McCoats if he did not pay he would come over there at noon and kill him. Later that evening Davis told McCoats this.

Davis further testified that at noon the next day, while standing on a third-floor balcony at 914 St. Charles, she saw the defendants exiting a yellowish-tan Buick that she recognized as belonging to Cox. Cox was carrying an 18- to 24-inch pipe. When Davis saw them going to the Greens’ apartment she ran to the outside of that door. She heard McCoats screaming and pleading with the defendants and then heard a shot. The defendants brought McCoats out and put him in their car. McCoats unsuccessfully asked people on the scene for eight dollars. When a bystander produced less than that it was refused. Cox stated that without eight dollars McCoats would not be seen again. Polk stated that a call to the police would also mean McCoats would not be seen again.

On cross-examination Davis admitted that the day of her testimony was the first time she had told any official what had happened. She explained that she had been afraid of the defendants. Davis, who had previously been convicted for misdemeanor theft, admitted that she was, at the time of trial, in the custody of Du Page County on pending theft charges. She denied that the prosecutors had promised to inform the Du Page prosecutors of her cooperation. However, it was stipulated at trial that if called to testify, Assistant State’s Attorney William Walters would state that prior to her testimony Davis was told that the Du Page prosecutors would be informed that she had testified for the prosecution in a murder trial.

Davis also admitted that she had formerly used narcotics (T’s and Blues) for two or three years, but denied being an addict, stating that during that period she “got high maybe twice a week.” She took that drug orally, not by injection. She denied using heroin, but stated that she had used cocaine and had injected that drug four or five times. She stated that a line-shaped scar on the back of her left hand was the result of these cocaine injections. She also admitted that she occasionally stole to get money for cocaine.

Davis denied having used any narcotics on the day she witnessed the abduction. She admitted to having taken T’s and Blues on the two occasions she saw defendant Polk the evening before (actually by her testimony the second occasion was at 1:30 or 2 a.m. on the morning of the abduction). However, she also testified that the effects of this drug lasted for only an hour.

Maywood police officer Charles Gunn confirmed that when he first spoke to Victoria and Peter Green at about 1:20 p.m. at the apartment building Victoria told him what she had seen, but Peter told him he knew nothing about it. At that time Brenda Williams and Cheryl Davis also denied any knowledge of the incident with Davis saying she did not wish to get involved. However, the second time Gunn spoke to Peter, at about 3 p.m., he did receive information about the incident.

Officer Gunn also testified that defendant Cox’ car was located at about 2:30 a.m. the day after the incident. No blood was found in the car. However, it was established at trial that a box of .38 Special bullets was recovered from the trunk of the car. It was stipulated that if called to testify a forensic scientist who examined the four bullets recovered from the victim would testify that they were the same caliber as those recovered from the car.

Defendant Cox took the stand and denied knowing the victim, Cheryl Davis, Vicky Green, or Peter Green. At the time of the occurrence he lived at 6 South 15th Avenue in Maywood (located five minutes by car from the victim’s apartment). He testified that from 5 p.m. the day before the occurrence he was at the apartment of a friend on the west side of Chicago. He returned to his apartment at 10 a.m. the next day, leaving at noon to go to the apartment of a neighbor, Dorothy Harris, to use the phone. He remained on the phone for half an hour, spoke to Harris for five to 10 minutes, went to the grocery store and brought back items for her, and then drove to a friend’s house where he was initially arrested. At that time he told the police his alibi. Cox admitted to having been convicted of a burglary in 1977. On cross-examination he identified his car from a photograph previously identified by State witnesses as the one they saw at the time of the occurrence outside the victim’s building.

Dorothy Harris also testified that Cox came to her apartment about noon on the day of the occurrence. He stayed on the phone 30 to 45 minutes, went to the grocery store for her and returned in 15 to 20 minutes, talked to her for 10 minutes and then left. Harris also testified that the victim’s building was five blocks away. It was stipulated that if called to testify Assistant State’s Attorney Walters would have testified that Harris had told him Cox was at her apartment from 11:45 a.m. to 12:15 p.m. and she next saw him in a squad car at 1 p.m.

We first consider defendants’ contentions concerning an allegedly suggestive lineup viewed by Victoria and Peter Green. Testimony adduced at the hearing on defendants’ motion to suppress identification testimony and at trial established that on the evening of the occurrence Victoria and Peter separately viewed the same eight-man lineup. Aside from the defendants three of the men in the lineup were known to Victoria and Peter as being from their building. According to Officer Gunn’s lineup report the three other men who were not known to defendants were 6 feet 2 inches, 5 feet 10 inches, and 6 feet 2 inches, weighing, respectively, 235, 185, and 215 pounds. Defendants Polk and Cox were, respectively, 5 feet 9 inches, 185 pounds, and 5 feet 11 inches, 185 pounds. Defendants cite to arrest cards indicating that defendant Polk was 5 feet 7 inches or 5 feet 8 inches and 175 pounds and defendant Cox was 5 feet 10 inches, 175 pounds. However that information was apparently not presented in the pretrial or trial proceedings below, unlike the evidence we have cited. The evidence does establish that the Greens had described the defendants as 5 feet 9 inches and 5 feet 11 inches. Defendants also flatly assert that two of the individuals not known to the Greens were 6 feet 5 inches. However, this assertion is based on equivocal responses by the Greens to leading questions concerning their opinion of the height of these two men. The testimony of Officer Gunn as well as that of Investigator Edward Adams, who was also present at the lineup, establishes that the two tallest men were 6 feet 2 inches.

When the three men known to the Greens are eliminated it is then apparent that the Greens in effect viewed a five-man lineup consisting of men ranging in height from 5 feet 9 inches to 6 feet 2 inches and in weight from 185 to 235 pounds. As to these men defendants object only to the alleged height discrepancies. Defendants have not included the lineup photograph in the record on appeal, although it was considered by the trial court. Nor have defendants asserted that any other distinctive physical characteristics or clothing differences marred this lineup.

A reviewing court must look at the totality of the circumstances surrounding a pretrial identification in determining whether it was unnecessarily suggestive. (People v. Hamilton (1977), 54 Ill. App. 3d 215, 369 N.E.2d 377.) Certainly the mere fact that the effective numerical composition of the lineup was reduced from eight to five did not render the lineup defective. (People v. Kinzie (1975), 31 Ill. App. 3d 832, 334 N.E.2d 872, defendant in lineup with only one other man; People v. Kirk (1979), 76 Ill. App. 3d 459, 394 N.E.2d 1212, cert, denied (1980), 447 U.S. 925, 65 L. Ed. 2d 118, 100 S. Ct. 3019, witness recognized three or four of the men standing with the defendant in a six-man lineup.) Nor do we find that the differences in height were such as to render the identification procedures unnecessarily suggestive. The police are not required to place physically identical men in a lineup and minor differences in size are not deemed to create improperly suggestive conditions. (People v. Prignano (1971), 2 Ill. App. 3d 163, 278 N.E.2d 128, cert, denied (1972), 409 U.S. 851, 34 L. Ed. 2d 94, 93 S. Ct. 62; People v. Keane (1970), 127 Ill. App. 2d 383, 262 N.E.2d 364.) Moreover in this cause both witnesses testified that they picked out the defendants because of their faces. Under these circumstances we find that the trial court did not err in denying defendants’ motion to suppress their identification testimony.

Defendants next contend that the trial court erred in refusing to tender to the jury the following non-IPI instruction:

“You may consider evidence that a witness was addicted to drugs at the time of the crime in judging that witness’ credibility.”

The determination of whether to give a non-IPI instruction rests within the sound discretion of the trial judge. (People v. Blackwell (1979), 76 Ill. App. 3d 371, 394 N.E.2d 1329.) In this instance we find that the trial court properly exercised its discretion in refusing the instruction. Contrary to defendants’ contention on appeal the evidence at trial did not establish that Cheryl Davis was ever a narcotics addict. She admitted having previously taken T’s and Blues, but stated that she had taken the drug orally, using it to become high twice a week, and she specifically denied having been a drug addict. Under these circumstances the court was clearly correct in refusing an instruction which suggested that the witness had been proved to be an addict. (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029; People v. Thorns (1978), 62 Ill. App. 3d 1028, 379 N.E.2d 641; People v. Smith (1979), 70 Ill. App. 3d 250, 387 N.E.2d 901.) Furthermore, the trial court noted that the evidence of Davis’ drug use would be a proper subject of comment to the jury in final argument. This factor was drawn to the jury’s attention in final argument and of course had already been brought out through extensive cross-examination.

In supplementary pro se briefs submitted to this court defendants have also contended that the failure of their trial counsel to move to quash their arrests denied them due process of law and constituted ineffective assistance of counsel. The record suggests that trial counsel withdrew a motion to quash the arrests after the State agreed not to use any of the evidence which would have been suppressed had the motion been successful. But in any event because defendants support their contentions with matters that are dehors the record before us and because their appellate counsel has advised us that this same issue is to be argued in post-conviction proceedings below, we find no basis for properly considering the issue in this appeal.

The judgment of the trial court is affirmed.

Affirmed.

MEJDA, P.J.,^* concurs.

* This opinion was concurred in prior to Presiding Justice James J. Mejda’s retirement from the court.