author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Victor Riszowski, Defendant-Appellant.
    (Nos. 58233-4 cons.;
    First District (3rd Division)
    September 5, 1974.

      James J. Doherty, Public Defender, of Chicago (Paul D. Katz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Victor Riszowski, was charged with petit theft and attempt deceptive practice. After a bench trial in the circuit court of Cook County, he was found guilty of both charges. He was sentenced to one year on each charge, the sentences to run concurrently. Defendant appeals, contending that the trial court committed reversible error in failing to suppress certain inculpatory statements attributed to him stemming from an allegedly illegal arrest.

On the date of trial, defendant requested a fourth continuance because his retained counsel had not appeared. The trial court denied the motion and informed defendant that he would have to go to trial on that day. An assistant public defender was appointed to represent defendant, and the case was passed for a short while.

When the case was called, appointed counsel again advised the court that defendant still wished time to hire private counsel. The trial judge again refused to grant a continuance. Thereupon, appointed defense counsel pleaded defendant not guilty, waived a jury trial, and made an oral motion “to suppress statements made by the defendant.” The State agreed to waive its right to a written motion, and the hearing on the motion to suppress statements proceeded immediately.

One witness, Frank Capadona, the arresting officer, testified at that hearing. The record reveals that the direct examination by the defense attorney commenced in the following manner:

“Q. Did you have occasion to place the defendant under arrest?
A. I did.
Q. Did you have a warrant for his arrest?
A. I did not.
Q. Where was the defendant when you placed him under arrest?
A. He was hiding in the closet at 5105 West Huron.
Q. Did you see the defendant commit any crime?
A. No, I didn’t.”

The balance of the examination by defense counsel related to the voluntariness of the statements given by the defendant and to the officer’s compliance with the giving of the Miranda warnings.

Officer Capadona testified that after he had advised defendant fully concerning his constitutional rights under Miranda, defendant at the scene of the arrest made an oral inculpatory statement. Defendant was then taken to the police station where he orally repeated to Officer Capadona the confession he had given earlier. The second statement was preceded by another admonishment of his Miranda rights and defendant’s signed waiver of those rights.

The prosecutor devoted his entire cross-examination of the officer to showing that the Miranda warnings had been given and that defendant’s confession had been produced voluntarily. No other witness testified at the hearing on the motion to suppress statements and both sides waived argument. The trial judge denied the motion to suppress, and the matter proceeded to trial.

James Baraniak, the owner of a currency exchange in the City of Chicago, testified that on April 5, 1972, defendant entered the currency exchange, put his endorsement on the reverse side of a check, and requested that it be cashed. Defendant stated that the check belonged to his sister-in-law who was shopping next door. Defendant stated that he would go and bring her to the currency exchange. Defendant left without the check and without getting any money. He did not return. Thereafter, the witness called the police. The witness also identified the check possessed by defendant as one naming Mary Bishop as the payee.

Mary Bishop testified that on the day in question Officer Capadona visited her and inquired about the defendant. She told the officer that she believed defendant resided downstairs in the same building. The witness received a monthly public aid check in the mail at her address. At trial she identified the check bearing .her name as payee and defendant’s name as one of the endorsers as her public aid check. She testified that she had never signed her name on the back of the check, and had never given anyone permission to exercise control over the check.

Officer Capadona testified at trial that, upon concluding a conversation with Baraniak at the currency exchange, he went to Mrs. Bishop’s; apartment and talked to her briefly. He then proceeded downstairs and talked to a tenant named Mrs. Smith. Upon receiving permission, the officer conducted a search and discovered defendant in a bedroom closet. After defendant was arrested and fully informed of his constitutional rights, he was questioned by the officer in the apartment. The officer testified that defendant told him that he had taken the check in question from Mrs. Bishop’s mailbox and attempted to cash it. Defendant was then taken to the police station where, after again being informed of his rights, he repeated to Officer Capadona the same statements he earlier had made in the apartment.

The defendant did not call any witnesses at trial. After both sides waived closing argument, the trial judge, sitting as trier of fact, found defendant guilty of both charges and sentenced him.

Defendant contends that the State did not establish probable cause for his arrest at the hearing on his motion to suppress statements, and that the trial court thus erred in permitting his statements to be introduced into evidence. The State initially counters by maintaining that defendant waived the issue of probable cause for the arrest. It reasons that the thrust of defendant’s motion and argument at the hearing was directed toward establishing the invalidty of defendant’s statements based upon Miranda and, consequently, that defendant should be foreclosed from raising the issue on appeal.

We cannot accept the State’s view of the nature of the hearing on the motion to suppress. In the first place, it is clear that defendant’s motion to suppress statements was not expressly predicated upon a violation of the Miranda standards. Furthermore, although it is true that defense counsel devoted most of his examination at the hearing to questions concerning the voluntariness of defendant’s statements and the officer’s compliance with Miranda, the record clearly indicates that the first questions asked the arresting officer by defense counsel at the hearing directly related to the circumstances surrounding defendant’s arrest and not to his later statements. (Compare People v. Harris (1969), 105 Ill.App.2d 305, 245 N.E.2d 80.) Moreover, in light of the manner of appointment of defense counsel, we are reluctant to impose the doctrine of waiver. (See People v. Montgomery (1972), 51 Ill.2d 198, 282 N.E.2d 138.) The trial court was well within its discretion in denying defendant’s motion for a continuance, but appointed counsel obviously had only a brief time to consult with his client and to become acquainted with the facts. We conclude that the issue of probable cause for arrest was preserved for review.

We next consider whether defendant proved at the hearing that no probable cause existed to justify his arrest. A police officer may arrest a. person without a warrant when he has reasonable grounds to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c).) Probable cause exists when a reasonable and prudent man in possession of the knowledge which has come to the arresting officer’s attention would believe the person to be arrested is guilty of the crime. (People v. Harper (1973), 16 Ill.App.3d 252, 305 N.E.2d 680.) The burden of proving that defendant’s statements were not given incident to a lawful arrest rests with the defendant. Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12 (a)(1).

As shown above, defense counsel immediately acertained at the hearing that the officer did not have a warrant for defendant’s arrest and that the officer had not observed defendant committing any crime. It is well established that once defendant has made out a prima facie case that the police lacked probable cause, the burden of going forward shifts to the State to negate that evidence at the hearing. People v. Cassell (1968), 101 Ill.App.2d 279, 243 N.E.2d 363; People v. Williams (1973), 16 Ill.App.3d 440, 306 N.E.2d 678; People v. King (1973), 12 Ill.App.3d 355, 298 N.E.2d 715; see also People v. Roebuck (1962), 25 Ill.2d 108, 183 N.E.2d 166.

In the present case, defendant satisfied his legal burden. The arresting officer admitted that he had no arrest warrant and that he had not observed defendant commit any crime. Although defendant was arrested in a bedroom closet, it cannot be said that the evidence adduced at the hearing showed that defendant was doing anything unusual at the time of his arrest. It is indisputable that the State did not go forward at the hearing to rebut defendant’s showing of no probable cause. The State now attempts to show by the testimony adduced at trial that the police possessed probable cause jusifying defendant’s arrest, but the above-cited cases direct that the evidence to negate the lack of probable cause be produced by the State at the hearing on the motion to suppress and not later at trial. We are compelled to hold that the proof adduced at the hearing on the motion did not indicate that the police had probable cause for the arrest and, therefore, that the arrest was illegal.

The courts in this state, in accord with the majority view, have ruled that the illegality of an arrest will not ipso facto render infirm statements made by the accused subsequent to his arrest, thus requiring their automatic suppression from evidence at trial. (People v. Rrown (1974), 56 Ill.2d 312, 307 N.E.2d 356; In re Tucker (1974), 20 Ill.App.3d 377; In re Lamb (1974), 21 Ill.App.3d 827.) Moreover, the United States Supreme Court has directed that we need not characterize all evidence to be fruit of the poisonous tree

“* * # simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

(Wong Sun v. United States (1963), 371 U.S. 471, 488.) The court has further held that purgation of the taint can be established by a showing that the challenged evidence had been obtained from an independent source (see Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385) or that the connection between the lawless conduct of the police and the discovery of the challenged evidence had become so attenuated as to dissipate the primary illegality. See Nardone v. United States (1939), 308 U.S. 338.

While illegal police conduct is but one circumstance to be considered regarding any question as to the voluntariness of a later confession (see People v. La Frana (1954), 4 Ill.2d 261, 122 N.E.2d 583), resolution of that issue will not in and of itself settle the question of purgation of the original primary illegality. As Justice Tuttle pointed out in Collins v. Beto (5th Cir. 1965), 348 F.2d 823, 829:

“* * * if a mere showing that a confession during a period of unlawful detention was voluntary’ were sufficient to establish its admissibility, Wong Sun would be an empty promise, for the inadmissibility of ‘involuntary’ confessions has long been fully recognized.”

(Also see People v. Johnson (1969), 70 Cal.2d 541, 450 P.2d 865, 75 Cal.Rptr. 401, cert. denied (1969), 395 U.S. 969.) Once an arrest is shown to be illegal, a confession following the arrest shall be presumed to be the product of that illegality, with the State bearing the burden of establishing a purgation of the illegality on the basis of the Wong Sun doctrine. People v. Landgham (1970), 122 Ill.App.2d 9, 257 N.E.2d 484, cert. denied (1971), 402 U.S. 911; Collins v. Beto, supra (Tuttle, J.); Bynum v. State (Okla. Crim. App. 1971), 490 P.2d 531.

An examination of the facts presented at the instant motion to suppress statements reveals that upon being discovered in the apartment, defendant was placed under arrest, immediately apprised of his constitutional rights, and orally questioned at the scene. The record is silent regarding the questions asked defendant on the scene, the kind of evidence, if any, with which he was confronted, and the nature of the information the police may have obtained regarding defendant’s involvement in the offenses. It appears, therefore, that the giving of the Miranda warnings is the sole basis relied upon to attenuate the connection between the illegal arrest and defendant’s statement made immediately thereafter.

In Commonwealth of Pennsylvania v. Maroney (3rd Cir. 1965), 348 F.2d 22, cert. denied (1966), 384 U.S. 1019, the court discussed what must be shown by the State to establish a case of attenuation. The court found two specific factors to be of major significance in determining the relationship between an illegal arrest and a later confession: the proximity of an initial illegal custodial act to the procurement of the confession, and the intervention of other circumstances subsequent to the illegal arrest which provide a cause so unrelated to that initial illegality that the acquired evidence may not reasonably be said to have been directly derived from that illegal arrest. (Also see In re Betrand (1973), 451 Pa. 381, 303 A.2d 486; State v. Newell (Mo. S.Ct. 1971), 462 S.W.2d 794.) The importance of these two factors was emphasized in United States v. Kilgen (5th Cir. 1970), 431 F.2d 627, modified on other grounds (5th Cir. 1971), 445 F.2d 287, with the court supplying an additional element: whether the arrest involved the failure to comply with technical requirements or whether it amounted to a gross violation of due process.

In the present case, there was no appreciable lapse of time between the illegal arrest and the inculpatory statement by the accused. The arrest did not involve the failure of the police to comply with “technical requirements” but rather by their failure to possess probable cause to justify the arrest. The only “unrelated” intervening circumstance offered to break the causal connection between the primary illegality and the giving of the confession was the arresting police officer’s giving of the Miranda warnings.

While the bald fact that the Miranda warnings were given to the accused prior to his giving an inculpatory statement after an illegal arrest may be a factor evidencing an intervening act of free will on the part of the accused, we hold that the issuance of the warnings does not per se demonstrate the requisite attenuation as a matter of law (See People v. Johnson, supra; In re Betrand, supra; United States v. Kilgen, supra; Bynum v. State, supra; People v. Hatcher (1969), 2 Cal.App.3d 71, 82 Cal. Rptr. 323.) To hold otherwise would permit the police to be free to arrest without probable cause, secure in the knowledge that the mere giving of the Miranda warnings might result in their obtaining a confession which would be admissible at trial.

We hold, therefore, that the mere fact that Miranda warnings were given by the police prior to an immediate interrogation of defendant at the scene of an illegal arrest, without more, fails to establish attenuation under Wong Sun sufficient to dissipate the taint and allow at trial the introduction into evidence of the confession given at the scene. Consequently, our facts and holding are clearly distinguishable from People v. Brown, In re Tucker, and In re Lamb, where the accuseds’ statements were made away from the scene of the illegal arrests, after an appreciable length of time had passed after the arrests, and after the accuseds had been afforded their full Miranda rights. The first confession by defendant in the instance case should have been suppressed.

In evaluating the second statement given by defendant, the record shows that after defendant had uttered his inculpatory statement at the scene of his arrest, he was immediately taken to the police station where, after he had again been informed of his rights and after he had signed a written waiver, he repeated orally what he had said at the scene.

As far back as People v. Sweetin (1927), 325 Ill. 245, 156 N.E. 354, our supreme court expressed its concern over the admissibility into evidence of a second confession where the first confession had been found to have been secured by improper means. The court held there that the evidence must show, through lapse of time or otherwise, that the influence inducing the first confession had been removed at the time of the second confession. This burden is further weighted down by the court’s assertion in that case that the second confession shall be presumed to be the product of the same influence inducing the first illegal confession. See People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673.

In resolving the issue of the admissibility of defendant’s second confession, we believe that our decision in People v. Raddatz (1968), 91 Ill.App.2d 425, 235 N.E.2d 353, is controlling. In that case, the State argued that a second confession of defendant, given after defendant had been informed of his Miranda warnings, should have been held admissible despite the invalidity of a prior confession. In rejecting the argument, we relied upon three factors: the short time lapse between the two confessions; the fact that the confessions were made to essentially the same authority; and the continuousness of defendant’s custody. Likewise, in the present case, the second confession was made soon after the first; both were given to the same police officer; and defendant remained in continuous custody. Additionally, the second statement was a repetition of the earlier illegal confession. We believe that the trial court erred in admitting into evidence defendant’s second confession given at the police station.

We next turn to a consideration of what effect these errors will have on the judgments of conviction rendered by the trial court.

It is settled that constitutional errors may occur which, in the setting of a particular case, are so unimportant and insignificant that they may be deemed harmless. In such cases, the errors will not affect a judgment of conviction if we are able to declare that the errors were harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18; Milton v. Wainwright (1972), 407 U.S. 371.

As to the charge of attempt deceptive practice, we believe that, in this bench trial, the introduction of defendant’s statements amounted to harmless error beyond a reasonable doubt. There was an uncontradicted and unmistaken eyewitness identification of defendant as the person who entered a currency exchange with Mrs. Bishop’s check, who placed his signature upon it, and who without permission or authority attempted to cash the check. The direct and competent evidence of defendant’s guilt of attempt deceptive practice was overwhelming, untainted by the erroneous introduction into evidence of defendant’s statements.

On the other hand, with regard to the charge of theft, we are unable to conclude that the introduction into evidence of defendant’s statement that he had stolen the check in question from Mrs. Bishop’s mailbox was harmless error beyond a reasonable doubt. As to the theft charge, it seems evident that defendant’s statement contributed significantly to his conviction. Accordingly, that conviction cannot stand.

For the reasons stated, the judgment of the circuit court of Cook County as to the charge of attempt deceptive practice is affirmed. The judgment of conviction as to the petit theft charge is reversed, and that cause is remanded for further proceedings not inconsistent with the holdings of this opinion.

Affirmed in part; reversed in part.

DEMPSEY and McGLOON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DEMPSEY

license: Public Domain

text:
      In re Valerie Lynn Anast, a Minor, et al.—(The People of the State of Illinois, Petitioner-Appellee, v. James Anast et al., Respondents—(B. Alan Stone, Guardian-Appellant.).)
    (No. 58602;
    First District (3rd Division)
    September 5, 1974.

      B. Alan Stone, pro se.

    William J. Scott, Attorney General, of Chicago (Paul J. Bargiel and A. Zola Groves, Assistant Attorneys General, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

James and Diana Anast were divorced and Mrs. Anast was awarded the custody of their two daughters, Valerie and Kathleen. Mrs. Anast then married the appellant, B. Alan Stone. They were later divorced and, in May 1972, the custody of Valerie, then age 15, and Kathleen, then age 13, was awarded to Stone, their stepfather. Two months later, petitions for adjudication of wardship were filed in the Juvenile Division of the Circuit Court by the Department of Children and Family Services on behalf of the two girls. Named as respondents in the petitions were the girls and their natural parents. The petitions alleged that the children were neglected and in need of supervision, under the terms of section 2 — 4 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 4):

“(1) Those who are neglected include any minor under 18 years of age
* * #
(b) whose environment is injurious to his welfare * *

No facts were alleged in the petitions to support their conclusion that the children’s environment was injurious to their welfare. The petitioner was given temporary' custody of the girls.

Thereafter Stone appeared, signed a waiver of service and defects in process, and over the succeeding weeks filed numerous motions and petitions seeking dismissal of the juvenile court action, asking that the girls be returned to him, their court-appointed guardian, and challenging the jurisdiction of the court. At a hearing in December 1972, the court ruled that it had jurisdiction. The court then heard a motion by a representative of the Department of Children and Family Services for a finding of inability of the parents to properly care for the minors. Pursuant to section 5 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 705 — 7), such findings were entered against both natural parents. The court further found that it was in the best interest of the minors that they be placed outside the home of the parents. The finding of neglect against the natural father was based on his signed admission of the allegations of the State’s petition. The mother was defaulted for failure to appear and defend subsequent to her initial submission to the court’s jurisdiction. It was the position of the State that Stone, not being a natural parent, was not entitled to an adjudicatory hearing as to his fitness before being deprived of custody, notwithstanding his legal relation to the minors and his custody of them under the divorce decree; that he only had the right to represent them in court and, following an adjudication of wardship, to petition for appointment as guardian. The court adopted this view. The girls were present during this hearing; the court asked them if they wished to live with Stone, and both stated they did not. The State submitted a report to the court which, although examined by the court, was not made part of the record. The court then vacated the temporary custody order and appointed Richard S. Layman of the Department of Children and Family Services the legal custodian of the children.

Stone raises a number of issues in his appeal; however, we need only consider two: first, whether the juvenile court possessed personal jurisdiction over Stone or jurisdiction of the subject matter; second, whether the court was empowered to remove the minors from his custody without holding an evidentiary hearing into his fitness.

Stone’s attack on the juvenile court’s jurisdiction is unfounded. As to himself, he argues that since he was not named in the original complaint the court did not have jurisdiction to divest him of custody. However, he signed a written waiver of service, entered his appearance and made every effort to contest the petitions on their merits. By so doing he waived jurisdiction over his person. Jones v. Jones (1963), 40 Ill.App.2d 217, 189 N.E 2d 33; Koplin v. Saul Lerner Co., (1964), 52 Ill.App.2d 97, 201 N.E.2d 763.

As to the subject matter, Stone contends that the court did not have jurisdiction of the wardship proceeding because an adjudication on the same subject had been made in the divorce division of the Circuit Court. Posing the issue in this matter, the relation between the two courts is confused, a relation made clear in People ex rel. Houghland v. Leonard (1953), 415 Ill. 135, 112 N.E.2d 697 — a decision handed down under the Juvenile Court Act’s predecessor statute, (Ill. Rev. Stat. 1951, ch. 23, par. 190, et seq.). The court explained in Leonard that the juvenile and divorce courts are courts of concurrent jurisdiction, but jurisdiction arising from different circumstances, related to the varying purposes of the acts enforced by each court and reflected in their disparate powers of disposition. A divorce court allocates property and other incidents of the marriage, including children, as between the two parties to the divorce. (Ill. Rev. Stat. 1971, ch. 40, par. 14.) The juvenile court, on the other hand, looks to the welfare of the children in determining whether they are delinquent, neglected, dependent or otherwise in need of supervision. It is not limited to the narrow range of dispositions which characterize divorce proceedings, but may place affected minors in the custody of the parties or in institutions. In this case, the juvenile court did not usurp jurisdiction over the action pending in the divorce division; it possessed jurisdiction to decide whether Valerie and Kathleen Anast were in a condition of neglect as defined in the Juvenile Court Act.

It does not follow, however, that the juvenile court could ignore Stone’s interest in the girls. Although not a blood relative, he was their stepfather, and in the divorce action against their mother he had been granted legal custody of them. He was entitled to an adjudicatory hearing on the issue of his fitness before being deprived of custody by the court’s adjudication of wardship. To hold otherwise would ignore the intent of the statute and the constitutional rights of Stone to due process and the equal protection of the laws.

In its petition, the State named only the natural parents as parties respondent, omitting the legal custodian. While the statute under which this case was tried nowhere states that any one person must be made a party-respondent, it obviously contemplates that if a minor is under legal guardianship at the time a petition is filed under the Act, the guardian should be named. The reasons why are apparent in this case, where an adjudication of neglect against the natural parents was virtually an empty act. They had already surrendered legal custody in earlier proceedings, and their inaction manifested their disinterest in the outcome of this one. But natural parents are not the only persons who may have a substantial interest in the welfare of minors. Numerous references appear in the Act listing in the conjunctive or disjunctive a whole constellation of potentially interested persons: the parents, guardian, legal custodian and/or a responsible relative. The category relevant to a particular case is presumed to be participating in proceedings under the Act. Thus,

“[Except as otherwise provided], the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, * * * the right to be represented by counsel * * (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 20.)

And,

“[The petition] shall * * * set forth * * * (c) the names and residences of his parents; (d) the name and residence of his legal guardian or the person or persons having custody or control of the minor, or of the nearest known relative if no parent or guardian can be found; # (Ill. Rev. Stat. 1971, ch. 37, par. 704-1(2).)

Concerning the detention hearing itself,

“(2) If the court finds that there is probable cause to believe that the minor is a person described in Section 2 — 1, the minor, his parent, guardian, custodian and other persons able to give relevant testimony shall be examined before the court. * * * (3) If neither the parent, guardian, legal custodian, responsible relative nor counsel of the minor has had actual notice of or is present at the detention hearing, he may file his affidavit setting forth these facts, and the clerk shall set the matter for rehearing * * (Ill. Rev. Stat. 1971, ch. 37, par. 703 — 6.)

Legal custodians also enjoy preferential consideration in dispositions:

“A minor under 18 years of age found to be neglected under Section 2 — 4 may be (1) continued in the custody of his parents, guardian, or legal custodian, or (2) placed in accordance with Section 5 — 7.” Ill. Rev. Stat. 1971, ch. 37, par. 705 — 2(c).

(Note also the broadened requirements of notice to custodians in the 1973 amendment to the Juvenile Court Act. Ill. Rev. Stat. 1971, ch. 37, par. 701 — 20.)

Notwithstanding this apparent inclusion of legal custodians among the class of respondents, it is the State’s position that, as sovereign, it has powers of guardianship over persons under disabilities; that there is no vested right to be appointed guardian of a minor and the court in making such an appointment considers the best interests of the child to the exclusion of all others. We consider these arguments tangential to the issue posed by this case. Stone is not before the court arguing he has a right to appointment as guardian of two minor wards of the State. Rather, he complains of an improper divestment of custody in the first place, through a proceeding which ignored his legal and familial status and which without appropriate inquiry relegated him to the position of any person requesting a guardianship appointment. So arbitrary a deprivation and the shifting of burdens not only violate the spirit of the statute, but infringe on basic rights. By virtue of his interest in the minors he was entitled to an adjudicatory hearing as a matter of due process. To refuse him that procedure and impose upon him the burden of affirmatively winning custody in a future proceeding was a denial of the equal protection of the laws. Stanley v. Illinois (1972), 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208.

We are not unmindful that certain provisions of the Juvenile Court Act are capable of an interpretation which would afford a person in the position of Stone reduced protection. Section 5 — 8, for example, provides in part that:

“No legal custodian or guardian of the person may be removed without his consent until given notice and an opportunity to be heard by the court.” (Ill. Rev. Stat. 1971, ch. 37, par. 705 — 8(2).

But the context of this provision, which is located in the article on dispositions, shows that it has reference to guardians who are appointed by the juvenile court subsequent to a determination of wardship. Merely to afford one in Stone’s position an opportunity to argue before the court would not comply with the dictates of Stanley, and reviewing courts are charged to avoid possible constructions of statutes which raise doubts as to their validity. Stubblefield v. City of Chicago (1971), 48 Ill.2d 267, 269 N.E.2d 504; Craig v. Peterson (1968), 39 Ill.2d 191, 233 N.E.2d 345.

Where the circumstances of a case indicate that a person other than a parent has a substantial interest in a minor in proceedings in the juvenile court, then under the contemplation of the Act that person is a necessary party to the proceedings. Stone was such a person; as legal custodian and stepparent of the two Anast girls he was entitled to the procedural protections incident to an adjudicatory hearing (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 20) on the issue of his fitness to retain custody.

Our disposition of this case requires, on remand, that new findings of neglect be entered. The fact that a child is dependent or neglected must be clearly established by the evidence. (People v. Hackman (1971), 1 Ill.App.3d 1030, 275. N.E.2d 488.) The findings in this case were based on the signed admission of the father and the default of the mother; no other basis appears in the record, and the petitions themselves allege no more than the conclusion that the minors’ environment is injurious to their welfare. A report was submitted to and examined by the judge, but it was not commented upon , nor made part of the record. This secret report may have contained information pertinent to the children’s welfare, but since it was not preserved for review we do not know its contents; and since the court did not comment upon it there was no indication what it may have been about, and we cannot presume it supplied the deficiencies disclosed in the record.

The cause will be reversed and remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

McNAMARA, P. J., and McGLOON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanley Wills, Defendant-Appellant.
    (No. 60052;
    First District (3rd Division)
    September 5, 1974.

      Alan W. Brothers, of Woodlawn Criminal Defense Services, of Chicago (Thomas Hecht, Senior Law Student, and David C. Thomas and Clayton Adams, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gregory Husar, Defendant-Appellant.
    (No. 58421;
    First District (2nd Division)
    September 10, 1974.

      Ronald Goldberg, of DePauI Law Clinic, of Chicago (Lee Boyd, Hank Browne, and Ruth Schmitt, Senior Law Students, of counsel), for appellant.
    Bernard Carey, State's Attorney, of Chicago (Kenneth L. Gillis and Thomas A. Mauet, Assistant State's Attorneys, of counsel), for the People,
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Gregory Húsar was convicted of possession of marijuana, an offense defined and punished by the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56%, pars. 701 et seq.). He was sentenced to two years probation with the requirement that he serve the first ten days in the Chicago House of Correction. The following are the facts.

On December 16,1971, at about 9 P.M., an informer told three Chicago police officers that at the intersection of Armitage and Fremont, for the sum of $5, he purchased a plastic bag of crushed green plant from “Fred” who, the informer said, was driving a yellow Cam aro convertible with Illinois license number 7212. A few moments later, the officers went to that intersection and they saw a yellow Camaro convertible with Illinois license number 7212 making a righthand turn. The owner and driver was Lawrence Barba. The front seat passenger was Gregory Húsar. Acting on the information given by the informer, the officers stopped the car. When one of them looked into it, he saw a clear plastic bag resting on a console between the driver and the front seat passenger. On the floor, in front of the passenger, was a brown bag. Subsequent laboratory tests showed the two bags contained 230 grams of marijuana. Húsar and Barba were arrested; a short time later, they were charged possession of cannabis sativa, commonly known as marijuana.

On the day their case came to trial, the court appointed the public defender of Cook County to represent them. The assistant public defender who undertook the assignment was given the files of the case, given an opportunity to talk with the defendants and told that he could have as much time for trial preparation as he thought necessary. Then, speaking directly to the two defendants, the trial judge told them that if they desired, they could have a continuance to obtain private counsel. No request was made either for additional time or for a continuance. Instead, the assistant public defender, after conferring with the defendants, announced he was ready, that jury would be waived and that he was prepared to begin with a motion to suppress evidence. Defendants were admonished concerning their right to trial by jury, and the cause proceeded.

In support of the motion, the assistant public defender called two witnesses: one of the arresting officers and Barba. After the two had testified, and the lawyer had urged a ruling in defendants’ favor, the trial judge denied the motion. Thereupon, the parties stipulated that the evidence which had been heard could be considered as part of the State’s case in chief. To supplement the stipulation, the State called as its witness the same arresting officer, who then testified concerning the two bags and the chemical tests which determined their contents were marijuana. With that, the State rested its case and defendants moved for a directed finding of not guilty. The court denied the motion.

After this ruling, Húsar testified in his own behalf. He admitted he was the front-seat passenger in the yellow Camaro; and at the end of his testimony, he admitted that the two bags of marijuana found in the car belonged to him. When he was cross-examined, Húsar again admitted that the marijuana was his, and then insisted that Barba did not know the bags were in the Camaro. Barba then testified and denied that on the occasion in question he knew the two bags of marijuana were in his automobile. After hearing the evidence and counsel in summation, the trial judge acquitted Barba and found Húsar guilty.

In this appeal, and in accordance with Supreme Court Rule 711, his brief has been prepared by three senior DePauI University law students, Lee Boyd, Hank Browne and Ruth Schmitt, who volunteered their services and whose work has been supervised by Ronald D. Goldberg, a member of the bar of this court and assistant professor in the College of Law, DePauI University. On Husar’s behalf, and from these facts, they present seven issues for our review. 1. Whether Húsar had the right to appointment of separate counsel to represent him. 2. Whether the dispatch with which the assigned assistant public defender proceeded with the defense deprived Húsar of his right to effective assistance of counsel. 3. Whether Husar’s court-appointed counsel was incompetent. 4. Whether this court will consider extrinsic evidence which would show that Húsar was denied effective assistance of counsel. 5. Whether Húsar waived his claim that the trial court erred when it denied the motion for directed finding at the close of the State’s case. 6. Whether Húsar was proven guilty beyond a reasonable doubt. 7. Whether probation subject to the requirement that Húsar be imprisoned for 10 days is now, for this case, a legally permissible sentence.

I.

The right to counsel that is guaranteed by the Sixth Amendment to the Constitution of the United States does not include an automatic right to separate counsel in a case involving more than one defendant. (People v. Chacon (1968), 69 Cal. 2d 765, 773, 774, 447 P.2nd 106, 73 Cal. Rptr. 10, 15.) One counsel in a case against multiple defendants can represent more than one, as long as the representation is effective and it does not appear that conflicts of interest between or among defendants can be anticipated. (Powell v. Alabama (1932), 287 U.S. 45, 71, 77 L. Ed. 158, 53 S. Ct. 55; People v. Robinson, 42 Ill.2d 371, 247 N.E.2d 898; see People v. Williams, 36 Ill.2d 194, 222 N.E.2d 321.) However, a criminal conviction will not be reversed because of conjectural or speculative conflicts of interest which are envisioned for the first time on appeal. (People v. McCasle, 35 Ill.2d 552, 556, 221 N.E.2d 227.) The record must show that at the time counsel was appointed, there existed a possibility of prejudice from joint representation. Compare People v. Chacon (1968), 69 Cal.2d 765, 73 Cal. Rptr. 10.

In this case, the claim of conflict of interest is based only on the fact that Húsar testified and admitted that the marijuana involved belonged to him. It is argued for the first time in this appeal that Husar’s testimony showed an interest different from that of Barba. We do not agree. The fact that a jointly represented defendant confesses his guilt in court does not prove a conflict of interest. In People v. Bass, 101 Ill.App.2d 259, 243 N.E.2d 305, two defendants were charged with robbery. Near the end of their trial, one of them testified and on direct examination admitted that he committed the robbery and insisted that his co-defendant was not involved in the crime. We held that this did not show a conflict between defendants, one that precluded their being represented by the same court-appointed counsel. Therefore, we conclude that Húsar did not have the right to have separate counsel appointed to represent him. Compare People v. Mason, 91 Ill.App.2d 118, 234 N.E. 2d 351; see Annot., 34 A.L.R. 3d 470, 484 (1970).

II.

When the assistant public defender learned of the appointment to represent Húsar and Barba, he conferred with the two defendants. Hie record does not disclose the length of time devoted to the conference. It does disclose, however, that the charge was a felony. The two defendants were arrested on December 15, 1971, and the complaint against them was filed the following day. Then, after a hearing and setting of bond, the case was continued to February 15, 1972, the day of the appointment. Therefore, Húsar and his co-defendant had been given 60 days to seek counsel and prepare for trial.

At the end of his conference with defendants, the assistant public defender announced that he was ready. After waiver of jury was recorded, the assistant state’s attorney asked leave to reduce the charge from a felony to a misdemeanor, the only class of cases assignable to that court. Therefore, as a consequence of the decision to go to trial immediately, Húsar received the benefit of reduction to a misdemeanor of a charge for which he could have been sentenced to a penitentiary term of not less than one nor more than 3 years. (See Ill. Rev. Stat. 1971, ch. 5672, par. 704(d).) Moreover, this is not a case in which the record discloses that the assistant public defender never talked to the defendant. (See People v. Birdette, 22 Ill.2d 577, 177 N.E.2d 170.) It is not a case in which a defendant claims, without denial by the State, that his court-appointed counsel never conferred with him prior to trial. (See People v. Garrison, 43 Ill.2d 121, 251 N.E.2d 200.) Nor is it a case in which the tidal judge restricted the assistant public defender to 5 minutes within which to talk to the defendant, would not permit conversation between them in a private room and insisted on immediate trial over the objection of court-appointed counsel. See People v. Shiftman, 350 Ill. 243, 182 N.E. 760.

Instead, this is a case in which an assistant public defender was appointed for two defendants, was given the file of the case, was given the opportunity to confer with defendants with the understanding that he could have all the time he needed, was told that he could obtain a continuance if he wanted one and defendants were told they could have a continuance to obtain private counsel. After a period of consultation that appeared to satisfy defendants, the assistant public defender announced he was ready and proceeded with the defense with a dispatch which not only was free of any discernible injury to Húsar but in fact accrued to his benefit. Denial of effective assistance of counsel must result in substantial prejudice. (People v. Palmer, 31 Ill.2d 58, 65, 198 N.E.2d 839; People v. Goerger, 52 Ill.2d 403, 288 N.E.2d 416; People v. Thomas, 51 Ill.2d 39, 280 N.E.2d 433.) In this case, Húsar was not prejudiced by the fact that the assistant public defender upon being appointed, and soon after a consultation, immediately announced he was ready for trial. (See People v. Kendall, 7 Ill.2d 570, 131 N.E.2d 519; People v. Coleman, 45 Ill.2d 466, 259 N.E.2d 269.) Therefore, we conclude that the dispatch with which the assistant public defender proceeded with the defense of the case did not deprive Húsar of his right to effective assistance of counsel.

III.

As a result of the immediate trial, the assistant public defender did not move for discovery, he did not request a list of witnesses, he did not ask the State to produce police reports, he did not move for information concerning identity of the informer who had told the police about the yellow Camaro; and, of course, he did not ask for a continuance. On Húsar s behalf in this appeal, it is argued with great seriousness that these failures of the assistant public defender prove that he was incompetent and that his conduct deprived Húsar of effective assistance of counsel for his defense.

Húsar, of course, had the right to effective assistance of counsel in his trial. (Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792; Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006.) Denial of that right would require that his conviction in this case be set aside. (People v. Morris, 3 Ill.2d 437, 445, 121 N.E.2d 810.) However, a determination that he was denied effective assistance of counsel can be made only if his court-appointed counsel was incompetent, and as a result, Húsar was substantially prejudiced. People v. Harper, 43 Ill.2d 368, 374, 253 N.E.2d 451.

In making this determination, we bear in mind that review of appointed counsel’s competence does not extend to those areas involving exercise of judgment, discrtion or trial tactics. This is true even though appellate counsel or members of his court, were they counsel in the case, might have acted in a different manner in the same situation. (People v. Martin, 44 Ill.2d 489, 256 N.E.2d 337.) As every experienced trial lawyer knows, the motions which appellate counsel now contend the assistant public defender should have made were matters of trial judgment, left to the decision of counsel in the case. With one exception, the motion for list of witnesses, the motions which were not made would not have requested relief to which Húsar was entitled as a matter of right. Except where the relief is a matter of right, a motion is addressed to the sound discretion of the trial court which, in the exercise of that discretion, may either grant or deny it. (60 C.J.S. Motions and Orders § 39 (1969).) Knowing this, assistant public defender, after conferring with defendants and learning the facts of the case, exercised his judgment and decided to forego the others and proceed with a motion to suppress evidence. Every lawyer familiar with criminal procedure knows that a motion to suppress functions as a discovery device. (See Oramenos, Tactical Judgments in the Trial of Criminal Cases, 55 Ill. B. J. 1000, 1001 (1967). Therefore, from his conference with defendants and from what he learned during the hearing of the motion, the assistant public defender had all the information about the case he needed to proceed with its defense on the merits.

It is argued, however, that failure of the assistant public defender to move for appointment of separate counsel for the two defendants proves he was incompetent. This argument is without substance. Appointment of separate counsel is justified only where the record shows actual or potential conflict of interest among defendants. (People v. Chacon (1968), 69 Cal. 2d 765, 447 P.2d 106, 73 Cal. Rptr. 10; People v. Baker, (1968), 268 Cal.App.2d 254, 73 Cal. Rptr. 758.) As we have already pointed out, there was no confh'ct of interest between Húsar and Barba. It is not a conflict of interest between two defendants for one to say that he committed the crime, and the other, who is absolved by his codefendant, to insist that he is innocent. (People v. Bass, 101 Ill.App.2d 259, 243 N.E.2d 305.) Therefore, we conclude that, on the facts shown in this record, Husar’s court-appointed counsel was not incompetent.

IV.

The record of this appeal does not disclose how long the assistant public defender consulted with Húsar and Barba or what advice he gave them. For this reason, appellate counsel have appended to Húsar s brief three affidavits. One is signed by the assistant public defender and states the length of time he took consulting with the two defendants. The other two are signed by Húsar and Barba; and in these, they tell of their conference with the assistant public defender and the inadequacy of the advice he gave them. We are told that this court should consider these affidavits because Húsar was convicted of a misdemeanor and at the time of his conviction Illinois law did not provide a post-conviction method by which he could raise the claim that in his conviction he was deprived of his constitutional right to counsel.

It happens, however, that after Husar’s conviction, the Supreme Court in People v. Wan, 54 Ill.2d 487, 298 N.E.2d 164, overruled a prior decision and in the exercise of its supervisory jurisdiction, held that a convicted misdemeanor defendant who asserts that his conviction resulted from a substantial denial of his constitutional rights may institute a proceeding under the Post-Conviction Hearing Act. (54 Ill.2d 487, 493.) Therefore, the fact alone that he was convicted of a misdemeanor is no longer a bar to Husar’s application for post-conviction relief.

Even were this not so, we could not consider these affidavits. The report of proceedings of the trial together with the clerk’s mandatory record constitute the complete record on appeal, not supplementable by affidavits. (People v. Rewland, 335 Ill. 432, 167 N.E. 10; compare People v. Palmer, 3 Ill.App.3d 608, 278 N.E.2d 165.) This rule is a rigid one. It was applied by the Supreme Court of the United States in Ciucci v. State of Illinois (1958), 356 U.S. 571, 2 L.Ed.2d 983, 78 S. Ct. 839, although a death sentence was inflicted and serious constitutional questions were involved. Therefore, this court will not consider extrinsic evidence which would show that Húsar was denied effective assistance of counsel. People v. Griffin, 397 Ill. 456, 74 N.E.2d 691.

V.

Nor will we consider Husar’s claim that the trial court committed error when it denied his motion for directed finding at the close of the State’s case. It is the rule that error in ruling on a motion for direct finding of not guilty is waived if the defendant introduces evidence after the motion is denied. (People v. Washington, 23 Ill.2d 546, 179 N.E.2d 635; People v. Slaughter, 29 Ill.2d 384, 194 N.E.2d 193.) In this case, after his motion was denied, Húsar testified and Barba was called as a witness for the defense. This was a waiver of whatever error the trial court committed in ruling on the motion. People v. Gokey, 53 Ill.2d 433, 312 N.E.2d 637; People ex rel. Kubala v. Woods, 52 Ill.2d 48, 284 N.E. 2d 286; People v. Harvey, 9 Ill.App.3d 944, 293 N.E.2d 406.

VI.

After this rating, Húsar testified in his own behalf. At that time he was a 23-year old college graduate who had attended two Illinois universities. He was a production manager and salesman for a picture-frame company. From his testimony, it appears he was competent to testify; he was an intelligent person who was adjusted to his surroundings and aware of the seriousness of the proceedings in which his rights were involved. His testimony and Barba’s show they were roommates; and that on the evening in question Húsar asked Barba to take him to an address in Oak Park, Illinois, where, Barba thought, Húsar was going to visit his girl friend.

After understanding and answering questions asked him by the assistant public defender, Húsar, in his testimony, admitted that the marijuana found by the police in Barba’s automobile on December 16, 1971, was his. He then went further and insisted that, on the occasion in question, Barba did not know marijuana was in his car. In view of his competency and the fact that Húsar was charged with possession of marijuana, this testimony was a voluntary judicial confession. (People v. Telio, 1 Ill.App.3d 526, 275 N.E.2d 222.) A voluntary judicial confession by a competent person is of convincing character and is the highest kind of evidence known to the law. (People v. Green, 17 Ill.2d 35, 41, 160 N.E.2d 814.) True, it was defense evidence; but the trial court, as trier of the facts, could consider the State’s evidence and that presented by Húsar in determining the issue of his guilt. (Baker v. State (Tex. Cr. App. 1974), 504 S.W.2d 872, 874.) Evidence introduced by a defendant may be considered by the trier of the facts; and, in some important way, it may supply deficiencies in the State’s proof. (See People v. Clark, 9 Ill.2d 400, 406, 137 N.E.2d 820.) In fact, by admitting under oath an essential element of the offense charged, a defendant can conclusively inculpate himself. (See People v. Durley, 53 Ill.2d 156, 290 N.E.2d 244.) Therefore, in this case, the testimony of the State’s witnesses, the stipulations of the parties and Husar’s voluntary judicial confessions proved him guilty beyond a reasonable doubt.

VII.

After finding Húsar guilty, the trial court conducted a hearing in aggravation and mitigation which disclosed that he did not have a criminal record and was gainfully employed. The court, after considering defense and prosecution recommendations, sentenced Húsar to 2 years’ probation, subject to a 10-day period of imprisonment. When this sentence was imposed, imprisonment as a condition of probation was permissible. See Ill. Rev. Stat. 1971, ch. 38, par. 117 — 2.

However, on January 1, 1973, while this appeal was pending, the Unified Code of Corrections became effective. A paragraph of the Code provided that “[i]f the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008 — 2—4.) Another paragraph provided that, except in cases of periodic imprisonment, a trial court could not make imprisonment a requirement of probation. Ill. Rev. Stat., 1972 Supp., ch. 38, pars. 1005 — 6—3(d), 1005 — 6—3(e).

In People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269, the Supreme Court held that, if they mitigate his sentence and his appeal has not been adjudicated as of its effective date, a defendant may avail himself of the provisions of Uniform Code of Corrections. On January 1, 1973, when the Code became effective, defendant’s appeal in this case was pending. The provision of the Code prohibiting imprisonment as a condition of probation mitigates the requirement imposed by the trial court that Húsar serve 10 days of imprisonment in the Chicago House of Correction. It follows that the 10-day imprisonment condition of the probation order must be vacated. (People ex rel. Weaver v. Longo, 57 Ill.2d 67, 309 N.E.2d 581; People v. Grant, 57 Ill.2d 264, 312 N.E.2d 276; People v. Rhinehart, 11 Ill.App.3d 859, 296 N.E.2d 781.) Therefore, the probation order with the requirement that Húsar be imprisoned for 10 days in the Chicago House of Correction is not now, for this case, a legally permissible sentence.

VIII.

Accordingly, the judgment is affirmed; and the condition of the probation order requiring Husar’s imprisonment for a period of 10 days in the Chicago House of Correction is vacated. The cause is remanded with directions that the trial court issue an amended probation order, effective as of the date of the original sentence.

As we have noted earlier, Husar’s appeal has been handled, consistent with Supreme Court Rule 711, by senior DePaul University law students Lee Boyd, Hank Browne and Ruth Schmitt whose work was supervised by Ronald E. Goldberg, assistant professor in the College of Law, DePaul University. They undertook this responsibility when it became clear that the public defender of Cook County could not continue in the cause because questions would have to be raised concerning the competency of the assistant public defender who, in the trial court, undertook to jointly represent Húsar and his co-defendant, Barba. This court expresses its appreciation for the caliber of appellate work done in the processing of this appeal. The public service that has been performed is in the highest tradition of our profession.

Affirmed; vacated and cause remanded with directions.

HAYES, P. J., and STAMOS, J., concur.

       Cannabis includes marijuana. (Ill. Rev. Stat. 1971, ch. 56%, par. 703.) In its penalty paragraph, the Cannabis Control Act provides that “[i]t is unlawful for any person knowingly to possess Cannabis. Any person who violates this section with respect to:
      6 » #
      (d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of an offense and shall be imprisoned in the penitentiary from 1 to 3 years; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be imprisoned in the penitentiary from 2 to 6 years * 6 Ill. Rev. Stat. 1971, ch. 56%, par. 704,

       “A student in a law school approved by the Board of Law Examiners pursuant to Rule 703 may be certified by the dean of the school to be eligible to perform the services described in paragraph (c) of this rule * * *.
      e e e
      He may prepare briefs, excerpts from record, abstracts, and other documents filed in courts of review of the State, which may set forth the name of the student with the accompanying designation ‘Senior Law Student’ but must be filed in the name of the supervising member of the bar.” Ill. Rev. Stat. 1971, ch. 110A, pars. 711(a), 711(c)(3).


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nathan Dozier (Impleaded), Defendant-Appellant.
    (No. 59921;
    First District (2nd Division)
    September 10, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.


author: Mr. PRESIDING JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Patrick Scott, Defendant-Appellant.
    (No. 58675;

    First District (4th Division)
    November 14, 1973.

      Rehearing denied September 30, 1974.

    James J. Doherty, Public Defender, of Chicago (Lee T. Hettinger, Assistant Public Defender, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Sharon Hope Grossman and Frank Deboni, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Patrick Scott, was charged in two separate complaints with knowingly and unlawfully having in his possession certain controlled substances, “To Wit: Dangerous Drugs,” and heroin, both “otherwise than as authorized in the Illinois Controlled Substances Act, in violation of Chapter 56% Section 1402 Illinois Revised Statute * * A motion to suppress evidence was made by defendant and denied. The defendant pleaded not guilty, waived a jury trial and was found guilty as charged. He was sentenced to serve six months at the Illinois State Farm at Vandalia on each charge concurrently and he appeals.

The issues presented by defendant for review are (1) whether the complaint relating to possession of “Dangerous Drugs” sufficiently states an offense and (2) whether the State completely failed to sustain its burden of proving, under either complaint, that the suspected substances seized were in fact controlled substances.

We briefly relate the evidence leading up to the arrest of the defendant. On April 5, 1972, Officer Blahusiak, who was the only witness for the State, testified that he was touring an area looking for suspects who had robbed and beaten a man. The victim and his wife were in the squad car. They pointed out three boys who were walking down the street, one of them the defendant. The officer stopped the car and observed that the defendant threw something on the ground from his left pocket. It was night time and with the aid of a flashlight he said he found three tin foil packets and five or six pills about five or ten feet from where the defendant was standing. He stated that the victim of the robbery thereafter said these were not the boys who robbed and beat him, although his wife insisted that they were the ones.

We do not reach the issue of whether the complaint relating to the possession of “Dangerous Drugs” is sufficient to state an offense. This is so because the defendant’s second contention that the State did not sustain its burden of proving, under either complaint, that the substances seized were controlled substances must be sustained.

The entire evidence in the record relating to this issue is contained in the following testimony of Officer Blahusiak, under direct examination by the Assistant State’s Attorney.

“Q. Officer, did you have occasion to take the contraband recovered from the street to the crime laboratory for analysis?
A. Yes, sir, we did.
Q. And, officer, did you submit it under case number 72— 4520 — C?
A. That is right.
Q. Officer, calling your attention to a laboratory report under that case number dated the 10th of April, 1972, under the hand Charles Vondrak, chemist, did he have occasion to find the three tin foil packets contained white powder, had a total weight of .58 grams, .50 grams and .55 grams of, respectively?
A. That is right.
Q. And also that the evidence was found to be heroin, is that correct?
A. Yes, sir.
Q. Officer, did you have occasion to find the five tablets, one tested, were found to contain a substance known as-?
A. That is right.
Q. —a dangerous drug?
A. Yes, sir.”

It is clear that in a prosecution for the possession of narcotic or dangerous drugs, the State has the affirmative burden of proving by satisfactory evidence not only the fact of possession, but also that the substance possessed was in fact a narcotic or dangerous drug. (People v. Sanford, 24 Ill.2d 365, 181 N.E.2d 118.) The evidence must show that the substance is that which the State purports it to be, and that it is the same substance which was taken from the defendant’s possession. Here the evidence as presented by the State is deficient in both respects.

The State claims that a sufficient chain of evidence was established linking the defendant to the two substances found to be controlled substances. This is based on the testimony of the officer that the defendant removed three tin foil packets and five or six pills from his pocket and dropped them to the ground. The officer then took the items to the crime laboratory, submitting them under the number 72 — 4520—C. The crime laboratory report which was introduced in evidence under the same number, 72 — 4520—C, shows that certain substances were tested by Charles Vondrak, a chemist in the crime lab, and found to be heroin and a dangerous drug.

But in People v. Resketo, 3 Ill.App.3d 633, 279 N.E.2d 432, the Appellate Court for the First District reversed a conviction for possession of a stimulant drug on facts similar to those presented here. In that case the arresting officer testified that a vial containing white powder, confiscated pursuant to a warrant, was “transported to the crime laboratory.” The State’s Attorney then indicated for the record that a lab report under case number 69 10504 — C indicated that a plastic container examined by the Chicago Police Department Crime Laboratory chemist contained .34 grams of a white powder determined to be amphetamines, a dangerous drug. The court held on the basis of this testimony that there was “a complete lack of proof that the substance found by the arresting officer was actually the same material which was subjected to chemical tests.” 3 Ill.App.3d at 635, 279 N.E.2d at 434.

It may be true in the case at bar, that the officer testified that the substances confiscated were not only submitted to the crime lab, but submitted under a certain number, and that the lab report allegedly revealing their nature bore the same number. But there is no evidence here relating to whom the substances were delivered to at the crime lab, or for that matter, to what crime lab. Nor is there any evidence relating to the condition of the substances when delivered. The mere fact that the number under which the officer gave the substances to the crime lab is the same as the number of a lab report written by a police chemist showing that certain substances he examined are proscribed drugs is weak evidence at best of the identity of the substances taken from the defendant. The deficiency in this testimony is aggravated by the leading nature of the questions which elicited it.

Another defect in the evidence as presented by the State is the officers testimony regarding the lab report. Testimony regarding the contents of this report, made by a police chemist who never testified in court, was clearly inadmissible as hearsay. There is no stipulation by the defendant to the admission of the lab report reflected in the record. See People v. Gayles, 24 Ill.2d 242, 181 N.E.2d 83.

It is obvious that only an expert could identify the substances taken from the defendant as dangerous drugs. (People v. Williams, 25 Ill.2d 562, 185 N.E.2d 686.) The record clearly shows that there was no attempt to qualify the officer himself as an expert witness on controlled substances, and in fact the officer never tested the alleged dangerous drugs himself. The lack of competent evidence on the nature of the substances conclusively severs the chain of evidence which the State was required to present.

The State misplaces reliance on People v. Anthony, 28 Ill.2d 65, 190 N.E.2d 837. There the record revealed that the arresting officer placed the narcotics in question in a sealed envelope. Before delivering it to the crime laboratory he wrote his name on the back flap of the envelope and covered it with cellophane tape. The examining chemist also testified. He found the envelope in the same sealed condition with no suggestion of tampering, alteration, or substitution. On this evidence, although the chemist had not received the envelope directly from the officer when it was delivered, the Supreme Court held the chain sufficiently established. The Court felt likewise in People v. Cain, 35 Ill.2d 184, 220 N.E.2d 195, cert. denied, 385 U.S. 1042, also cited by the State. In that case testimony was again heard from both the policeman and the examining chemist. The defendant contended that there existed certain unaccounted for changes in the condition of the envelope containing the package of heroin admitted against him in evidence. The Court found this insufficient to break the continuity of possession since testimony from both the policeman and the chemist sufficiently negated any possibility of tampering. These cases clearly differ from the case at bar. Here the State offered no evidence at all regarding the condition of the substances when delivered, to the lab or when tested there, nor did it offer any testimony from the examining chemist regarding the nature of the substances tested.

The State strenuously argues that the failure of defendant’s trial counsel to object when the evidence was offered now waives defendant’s right to raise the issue on appeal. But in view of the nature of the evidence presented here we feel the State completely failed to meet its burden. Under the circumstances shown by the record we cannot say that no reasonable doubt of the defendant’s guilt remains or that every reasonable hypothesis inconsistent with innocence is excluded. On such a record the conviction cannot stand.

The judgment of the Circuit Court is therefore reversed.

Judgment reversed.

ADESKO and DIERINGER, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie L. Franklin (Impleaded), Defendant-Appellant.
    (No. 57253;
    First District (3rd Division)
    July 3, 1974.

      Modified opinion on denial of rehearing September 19, 1974.

      Paul Bradley and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the modified opinion of the court:

The defendant Eddie L. Franklin was indicted for the offenses of murder and attempted armed robbery. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1; Ill. Rev. Stat. 1969, ch. 38, par. 8 — 4.) After a jury trial he was found not guilty of the offense of murder, but guilty of the offense of attempted armed robbery, and sentenced on that conviction to a term of 9 to 14 years in the penitentiary.

In this appeal the defendant presents a number of issues for our consideration. First, whether the trial court erred in failing to suppress the defendant’s warrantless arrest, which resulted in the seizure of certain physical evidence and the defendant’s subsequent identification by certain witnesses. Second, whether the indictment charging the offense of attempted armed robbery was fatally defective as it failed to allege an essential element of the offense, and in the same vein, whether the State failed to prove a material allegation of the indictment. Third, whether the trial court erred in refusing to suppress a certain lineup which resulted in the defendant’s identification and subsequent in-court identification. Fourth, whether the trial court erred in refusing to give an offered instruction concerning the weight to be given the testimony of a narcotics addict. Finally, whether his sentence must be reduced to conform to the requirements of the Illinois Unified Code of Corrections.

Judgment vacated and remanded.

The relevant facts surrounding this case are as follows. On December 12, 1969, four men attempted to rob the Gateway National Bank of Chicago. During the attempted robbery, a bank guard, Richard Mix, was critically wounded by one of tire offenders and died 4 days later. On December 22, 1969, two Chicago Police officers assigned to investigate the Gateway robbery arrested two men, Lee Bates and Gerald Brooks, who were eventually indicted along with Franklin for the murder and attempted armed robbery. During the questioning of these suspects both admitted their participation in the crime, and also implicated Franklin as one of the robbers.

Later that day, at approximately noon, the officers, investigators Moore and Craig, along with other officers, proceeded to Franklin’s apartment and there arrested him. While making the arrest the officers also seized certain items from the defendant’s apartment, among which were a pair of men’s pants, variously described as burgundy, lavender or “hot pink”, a three-quarter length camel hair coat with a fur collar, an afro-style wig and a black cap. These items were seized because they seemed to fit the description of the clothing worn by one of the Gateway gunmen given by witnesses to the attempted robbery. These items of clothing were not worn by the defendant at the time of his arrest, but, the officers testified, were in plain view in various areas of the apartment when defendant was taken into custody.

Still later that day, December 22, the defendant was placed in a lineup at a Chicago Police Station at which time he was identified by two bank employees as a participant in the December 12 crimes. Prior to the lineup the defendant was instructed to change from the clothes he wore when arrested into the pants, coat and cap that were seized in the apartment. After viewing the lineup one witness, Alexia Byrd Jackson, positively identified the defendant and another, Gloria Clifford Jones, told police that the defendant “was the man,” although his hair, among other things was different than on December 12. The defendant was then instructed to put on the seized wig, whereupon witness Jones again viewed him and again identified him as one of the offenders. None of the other witnesses who viewed the lineup could identify the defendant.

Subsequently, the defendant filed motions to suppress his illegal arrest and to suppress any lineup or in-court identification of him by the State’s witnesses. After an extensive hearing on the motions the trial judge denied defendant’s motion to suppress his arrest finding that the arrest was based on a sufficient showing of probable cause and the items seized at the time of arrest were in plain view. In regard to the December 22 lineup the trial judge found that although the lineup “was to an extent suggestive,” witness Jones identified the facial features of the defendant and was not influenced by defendant’s clothing and therefore denied the motion as to her. As to witness Jackson the trial judge found that in her testimony her concern seemed “to be centered more on the clothing that was worn” and therefore granted the motion to suppress her testimony.

At Mai Gloria Clifford Jones testified that she was an employee of the bank and was working as a teller on the morning of December 12, 1969. She stated that while working that morning she heard a scuffle and looked up to see a man fighting with the bank guard, Richard Mix. She saw the man aim a gun at Mix’s head and shoot. The man then turned and pointed the gun at her and she ducked behind the counter and remained there until after he had left. She described the man who shot Mix as a Negro with a goatee, mustache, and an afro hair style. He was wearing a beige coat with a fur collar and “hot pink” pants. She further identified the defendant as the man who shot Mix and the pants and coat seized at the time of his arrest as exactly like those worn by the defendant on that morning. Further, she stated that she had seen the defendant three times near the bank 2 days before Decembr 12. She remembered him because he had tried to “flirt” with her on these occasions and he wore the same coat and pants as on the morning of the shooting. She also testified that on December 22, 1989, she viewed a lineup at which time she identified the defendant. At that time he was wearing the same coat, pants and wig that she had identified previously.

Alexia Byrd Jackson testified that she also was an employee of the bank on December 12, 1989. On that morning she saw four men enter the bank. One of the men had a “natural” hairdo, a mustache and goatee, and was wearing a tan coat with a fur collar, “hot pink” pants and a black cap. After these men entered, she heard a shot and fell to the floor. Although the trial judge had previously allowed a motion to suppress her identification testimony, she was allowed to testify that she viewed a lineup on December 22,1969, at which time she saw the number one man in the lineup wearing a brown coat with a fur collar and “hot pink” pants. She also identified a picture as accurately representing the lineup that she had seen. After this testimony the defendant moved for a mistrial, which motion was denied by the trial court.

Marcia Kazwara testified that she was the vault manager at the Gateway Bank on December 12. She heard a shot and looked up to see Mix fall backwards and a man in a beige coat with a dark collar. Another man with a gun came up to her and ordered her to open the vault. She told the gunman that she could not open the vault because she did not have the combination, whereupon the gunman turned and left the building.

Gerald Brooks testified that he was one of the four men who attempted to rob the Gateway Bank on the morning of December 12, 1969. He testified that the defendant was also one of the four men and that on that morning the defendant was wearing a camel coat with a mink collar and burgundy pants. Brooks stated that he was the man who ordered Marcia Kazwara to open the safe, and the defendant’s assignment had been to disarm the guard. He further stated that after they left the bank the defendant told him that he had to shoot Mix because the guard had tried to pull his gun. Brooks admitted that he had been a heroin addict for 5 years prior to December 12, 1969, and that at the time of trial he was receiving methadone at Cook County Jail to support his habit.

Other witnesses testified as to the events at the bank on December 12 and to the circumstances surrounding the defendant’s arrest. In defense the defendant testified that he did not shoot Mix or participate in the attempted robbery on December 12. He further denied that he had been near the bank prior to December 12.

At the close of all the evidence the defendant offered an instruction on the credibility of narcotics addicts which was refused by the trial judge. The jury returned verdicts finding defendant not guilty of murder and guilty of attempted armed robbery whereupon he was sentenced as aforementioned.

The first issue presented for review is whether the defendant’s arrest on the morning of December 22, was lawful. The defendant argues that because his arrest was effectuated without a warrant, when the police had the opportunity to secure a warrant, his arrest was unlawful and the clothing seized in his apartment and his later identification by witnesses should have been suppressed as they were a consequence of the unlawful arrest. The defendant does not argue that the police either lacked probable cause to make the arrest or exceeded the scope of a search incident to arrest, but merely that the lack of a warrant when they had time to secure one, voided the arrest. We cannot agree with defendant’s contention.

Section 107 — 2(c) of the Code of Criminal Procedure of 1963 provides: “A peace officer may arrest a person when: (c) He has reasonable grounds to believe that the person is committing or has committed an offense.” (Ill. Rev. Stat. 1969, ch. 38, par. 107 — 2(c).) Further our supreme court, passing upon the same issue presented here in a factual situation similar to the instant case, said:

“Defendant argues, incorrectly, that a warrantless entry is permissible only in hot pursuit, or in any emergency when it is impractical to obtain a warrant. We agree that it is desirable for an arrest to be based upon a warrant when the circumstances permit, “ * *. At the same time, however, we recognize that an arrest may be lawful when based upon probable cause, notwithstanding the absence of a warrant.” People v. Johnson (1970), 45 Ill.2d 283, 287-88, 259 N.E.2d 57, cert. denied, 407 U.S. 914.

In Johnson, as in the instant case, the police were in possession of sufficient facts to cause a reasonable man to believe that a crime was committed and the defendant was one of the offenders. Therefore, their warrantless arrest of the defendant was lawful, as there is no requirement in this jurisdiction that they must first secure a warrant.

The defendant next contends that the indictment charging him with attempted armed robbery is fatally defective because it does not allege that the defendant attempted to take property from the person or presence of the victim. The indictment states, in pertinent part, as follows:

“* » * that on December 12, 1969, * * * Lee Bates, Eddie L. Franklin, Gerald Brooks and Paul Bullock committed the offense of attempt in that they, with the intent to commit the offense of armed robbery, attempted to take the property of Marcia Kazwara, an employee of the Gateway National Bank, by force and while armed with a dangerous weapon, in violation of Chapter 38, section 8 — 4, of the Illinois Revised Statutes, 1969 # * *.”

The rule in this State is that an indictment is sufficient when it states the elements of the offense with sufficient particularity to apprise the accused of the crime charged so as to enable him to prepare his defense and permit a conviction or acquittal to be pleaded in bar of any subsequent prosecution for the same offense. (People ex rel. McLain v. Housewright (1973), 9 Ill.App.3d 803, 293 N.E.2d 911.) The fact that an indictment does not allege an offense in the verbatim language of the statute does not mean that the charge is automatically defective. Here the indictment clearly charges the offense of attempted armed robbery and could not conceivably hinder the defendant in the preparation of his defense. Further, a conviction or acquittal of this charge would allow it to be used as a plea in bar, were any subsequent prosecution for the attempted bank robbery of December 12 undertaken.

Similarly, the defendant next argues that his conviction for attempted armed robbery must be reversed because the State failed to prove a material allegation of the indictment, i.e., that the State failed to prove that Marcia Kazwara owned the property that the defendant allegedly attempted to steal. We cannot agree.

The cases hold that when an indictment for the offense of robbery or armed robbery alleges the ownership of the property in the victim the State must prove either that the victim owned the property or had possession, custody or care of the property. (People v. Steenbergen (1964), 31 Ill.2d 615, 203 N.E.2d 404; People v. Daniels (1933), 354 Ill. 600, 188 N.E. 886.) In the instant case the State sustained its burden of proof. Marcia Kazwara testified that she was employed by the Gateway National Bank as the vault manager. On the morning of December 12 she was at her desk, which was located inside the vault area of the bank. She had in her desk the keys to the security room of the vault and used them, at the direction of one of the offenders, on the morning of the attempted robbery. Although she did not have the combination to the vault itself, and admittedly did not personally own the money in the vault, her testimony clearly established that she was the bank employee who had custody and care of the bank’s property. The defendant’s argument that the State did not prove witness Kazwara had custody and care of the property is not well founded.

The defendant next contends that the lineup in which he was identified on December 22, 1969, was unconstitutionally suggestive and that the trial court therefore erred when it admitted into evidence lineup identification testimony and an in-court identification of defendant as it was a result of the invalid lineup. Although the December 22 lineup was conducted in an otherwise exemplary fashion, the defendant argues that because he was made to wear clothing fitting the description of clothing worn by one of the bank robbers the identification procedure was unnecessarily suggestive and conducive to irreparable misidentification. We must agree.

At the time of defendant’s arrest the arresting officers also properly seized certain clothing owned by the defendant, as they believed that this clothing fit the description given by bank employees of the clothing worn by one of the offenders on December 12. The fact that the defendant owned this clothing was certainly circumstantial evidence indicating a possibility of his guilt. However, the police did more than merely seize the clothing as evidence, they caused the defendant to change into this clothing prior to a lineup in which he was identified by two bank employees; Alexia Byrd Jackson and Gloria Clifford Jones.

The effect of this procedure on the identification witnesses can best be seen from their own testimony during the hearing on defendant’s motion to suppress. In regard to witness Jackson, the trial judge commented upon her testimony as follows: “She was highly nervous. She paused a great deal after many of her sentences, many of her answers. She obviously was frightened. She is properly described as a weak witness from the standpoint of identification. Her concern in the testimony seems to be centered more on the clothing that was worn. She said identical clothing. She was always talking about the identical clothing. To her, the clothing was a big factor.” Indeed, our own review of her testimony at the hearing reveals that although she was unable to remember many of the details surrounding the lineup procedure, she clearly remembered that the man she identified at the lineup was wearing the same clothing that she described as being worn by one of the gunmen on December 12.

In regard to witness Jones, she also clearly remembered that at the lineup the defendant was wearing the same clothing that she saw on the gunman who shot Mix. When asked whether the picture of the December 22 lineup showed all the men except the defendant, as having mustaches, the following exchange took place:

“A. I didn’t look at anyone else but this gentleman here. (Indicating.)
Q. The man that was wearing the hot pink pants?
A. Well, I was looking at his face. That is the only thing I saw was his face.” (R.58)

Later in her examination the following exchange took place:

“Q. He was the only one who appeared clean shaven and has his eyebrows tweezed in the lineup?
A. He was the only one I recognized. I wasn’t paying any attention to any of the others.” (R.60)

After viewing the lineup witness Jones testified she told the police officers that the defendant “was the man except for the changes.” She then viewed the lineup a second time after the defendant had been instructed to put on an “afro wig”. After viewing the lineup the second time she was “even more certain that he was the man.”

After the hearing on defendant’s motion to suppress, the trial judge found that the lineup “was to an extent suggestive.” He nevertheless considered the effect of this suggestiveness on the witnesses individually. As to witness Jackson he granted the motion to suppress, finding that her identification seemed to be based on the clothing worn by defendant. As to witness Jones he denied the motion finding that it was the defendant’s facial features that she was concentrating on. We find this decision of the trial judge to be error.

The law is well established that if a defendant can prove that, based upon the totality of the surrounding circumstances, 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 unless the State can establish by clear and convincing evidence that the defendant’s identification at trial is not dependent on or influenced by the improper viewing. (Stovall v. Denno (1967), 388 U.S. 293; Gilbert v. California (1967), 388 U.S. 263; United States v. Wade (1967), 388 U.S. 218; People v. Blumenshine (1969), 42 Ill.2d 508, 250 N.E.2d 152.) The specific circumstance of the identification procedure in the instant case has met with Supreme Court disapproval.

“Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, * * * that only the suspect was required to wear distinctive clothing which the culprit allegedly wore, * * United States v. Wade (1987), 388 U.S. at 232-33; See also Foster v. California (1969), 394 U.S. 440.

We are aware that there are cases wherein courts have held that pretrial confrontations were not so suggestive as to amount to a denial of due process even when the defendant is viewed in clothing described as being worn by the offender. Young v. United States (D.C. Cir. 1969), 407 F.2d 720, cert. denied, 394 U.S. 1007; Hernandez v. State (1969), 7 Md. App. 355, 255 A.2d 449.

However, these cases present unique factual situations unlike the situation in the instant case.

The fault common to cases wherein courts have found a denial of due process of law, as in the instant case, is that “the police single out one person and influence the witness by directing attention to some element known to be connected with the crime — the unique appearance of the suspect, the words spoken in the course of the crime, or clothing similar to the suspect’s clothing. The necessary result of this singling out is to suggest to the witness that the suspect so isolated is in fact the one the police think is guilty.” (Crume v. Beto (5th Cir. 1967), 383 F.2d 36, 39, cert. denied, 395 U.S. 984.) The testimony of witnesses Jackson and Jones shows that this is what occurred in the instant case.

We would further point out that the error in this case was not a result of the fact that the trial judge did not recognize the inherent suggestiveness of the lineup, but rather that he seemed to apply the Wade-GilbertStovall rules subjectively rather than objectively. The trial judge recognized the suggestiveness of the confrontation but nevertheless, considered the effect of this suggestiveness on each individual identification witness. This we find to have been an improper application of the Wade-GilbertStovall rules. The trial judge should have determined whether the lineup itself was unconstitutionally suggestive and not whether the suggestiveness produced an unconstitutional effect on each witness. The subjective feelings of witnesses are not the standard by which a denial of due process of law is determined.

The Supreme Court recognized in Wade-Gilbert-Stovall that lineups must meet the due process standards of fundamental fairness in order to pass constitutional muster, and if they do not the evidence of identification is rendered inadmissible. (People v. Blumenshine (1969), 42 Ill.2d 508, 511.) To determine the constitutionality of a lineup on the basis of a witness’ assurance that he was not influenced by some otherwise suggestive procedure is to allow each witness to become his own judge of the accuracy of his identification. This procedure is not contemplated in the Wade-Gilbert-Stovall decisions and further ignores certain problems inherent in the identification process itself. As the court said in Crume v. Beto, supra:

“Once a faint glimmer of recognition strikes a witness, his tendency may be to do everything in his power to reinforce that recognition and come to a positive identification. To compensate, a fair practice might be to require the police to take every reasonable precaution to insure that the witness is not overly influenced by his original impression, and that he arrives at an objective and accurate identification.” 383 F.2d 36, 40.

However, to hold that the instant lineup was unconstitutionally suggestive is not to say that there was a denial of due process. “Whether there was a denial depends on whether [the] identification at trial was dependent on or influenced by the improper viewing.” (People v. Blumenshine (1969), 42 Ill.2d 508, 513.) Where the record does not permit an “informed judgment” as to whether the identification was independent of the improper confrontation at the police station the case is remanded for a hearing with the eventual use of the witnesses testimony dependent on the outcome of that hearing. People v. Blumenshine, supra; Gilbert v. California (1967), 388 U.S. 263, 272.

In the instant case, however, the record does permit such an informed judgment that the identification of the defendant by witness Gloria Clifford Jones was based on observations independent of the unconstitutional lineup of December 22. At trial Mrs. Jones testified she had seen the defendant on three occasions 2 days prior to the attempted robbery. On that date, December 10, 1969, Mrs. Jones was working in the drive-in window of the bank by herself. She testified that while working she saw the defendant walk by the window. He passed within three or four feet of her. She testified she saw the defendant a second time on December 10, about one-half hour later. At this time the defendant asked her if she was working alone. She didn’t answer as she thought at the time the defendant was trying to flirt with her. And again, about 30 or 40 minutes later she observed the defendant a third time. On cross-examination she stated that she was positive she saw the defendant on December 10. This testimony clearly supports a finding that her identifiertion of the defendant had an “independent origin,” and was admissible for this reason. As pointed out by the Supreme Court in Wade the proper test to be applied in these situations is whether, granting establishment of the primary illegality (the lineup), the identification was come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. (United States v. Wade (1967), 388 U.S. 218, 241.) The record in this case clearly allows the conclusion that witness Jones’ identification was the result of an independent observation of the defendant and for this reason there is no need to establish this fact by a separate hearing in the trial court.

However, as to the testimony of witness Alexia Byrd Jackson we hold such a hearing must take place for the following reason. Although the lineup identification of witness Jackson was suppressed by the trial court, she was nevertheless allowed to testify at trial in such a manner as to reinforce the lineup identification testimony of witness Jones. Immediately after Gloria Clifford Jones testified at trial and identified the defendant, Alexia Byrd Jackson was called as a witness. Although she never actually identified the defendant, in compliance with the earlier order of suppression, she was allowed to state that she viewed the December 22 lineup, that one of the men in that lineup was wearing clothing that was worn by the gunman she saw at die bank, and that a photo of the lineup was an accurate portrayal of what she saw on December 22. We must agree with die defendant that tins testimony, coming immediately after the testimony of Mrs. Jones who had identified the defendant in the lineup photo, served to corroborate the lineup identification of witness Jones and effectively circumvented the trial court’s order of suppression so that Mrs. Jackson became an identification witness herself. (We would note here that this situation is another ramification of a trial court’s subjective application of the Wade-Gilbert-Stovall rules.)

Likewise, a similar- hearing must be held on the question of whether Doris Fair may have misidentified the defendant because of the suggestive lineup. Mrs. Fair, a secretary to the president of the bank on the day in question, observed events of the attempted robbery. She gave testimony at trial to the effect that Eddie Franklin was the man she saw at the lineup of December 22, 1969, who looked like the man who shot Richard Mix, except that the man in the bank had a goatee and mustache. On cross-examination the witness admitted that she could not swear that tire man she saw in the lineup was the man who shot Mix. She did not make an in-court identification. Defendant did include Mrs. Fair’s name in his motion to suppress identification testimony. However, she did not testify at the hearing on the motion. At trial she testified that the man who shot Mix was wearing a tan-colored coat with a fur collar on the day in question. Defendant was wearing the same type of coat at the lineup which Mrs. Fair viewed. At trial the court overruled defense counsel’s objections to her testimony. Although the trial court tiled to restrict her testimony, it amounted to an identification and was subject to the same taint of the improper lineup as was the identification testimony of Jackson and Jones.

If, at the hearing, the identification testimony of witnesses Jackson and Fair is shown to have been independent of the improper police station confrontation, the trial court will enter a new judgment reinstating the conviction. However, if the witnesses’ identifications are not shown to be based on observations made other than at the police station, the trial court must grant the defendant a new trial, unless the court is able to declare that the testimony of such witnesses was harmless error beyond a reasonable doubt. (United States v. Wade (1967), 388 U.S. at 242; Chapman v. California (1967), 386 U.S. 18.) If a new trial is granted, identification testimony from the witnesses who attended the police station confrontation will be received only if the trial court determines at the hearing that the proposed testimony has a source independent of and free from the taint of the identifications made at the police station. People v. Blumenshine (1969), 42 Ill.2d 508, 513-14.

Because the trial court may reinstate the judgment of conviction we are vacating, we must consider two further allegations of error advanced by the defendant. The defendant contends that the court erred in refusing to give his offered instruction on the weight to be given the testimony of a narcotics addict. We must disagree with the defendant’s contention, as the second sentence of his offered instruction goes beyond similar instructions approved by this court. (People v. Phillips (1970), 126 Ill.App.2d 179, 187, 261 N.E.2d 469; People v. Bliss (1966), 76 Ill.App.2d 232, 222 N.E.2d 57.) For this reason the instruction was properly refused. However, if a new trial is granted to the defendant and the testimony of witness Brooks is again in issue, the defendant should have an opportunity to show that Brooks, although presently receiving methadone, is an addict, therefore allowing a proper instruction on the weight the jury may give to his testimony.

The defendant also contends that his sentence must be modified according to the terms of the Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.) Because we have vacated the judgment in this case we need not decide this issue. Any further proceedings involving sentencing in the trial court, wherein the judgment we have vacated will be reinstated or a new trial granted, will be conducted in accordance with the Code.

The judgment of the circuit court is vacated and the case is remanded to the circuit court for further proceedings in accordance with the views expressed herein.

Judgment vacated and remanded with directions.

DEMPSEY and MEJDA, JJ., concur.