dissenting:
I must respectfully dissent from the opinion of the majority.
A review of the record convinces me that notwithstanding any infirmity in the investigative photographic procedure employed, there was a positive in-court identification, independent of any suggestive, improper photographic identification. ■
State Trooper Brueggemann testified he had two opportunities to view the defendant at the scene. The interior of the building was lighted and the exterior was illuminated by two flood lights and two dusk-to-dawn mercury-vapor lights. The trooper testified he was able to observe the defendant and his companion at the rear window of the building for a period of 15 to 20 seconds, unobstructed by the security bars on the window and that he and defendant faced each other face-to-face after the officer ordered them to halt. He testified he had a “good view” of both defendants and their faces and shoulders were above the security bars on the tilted window. An identification by one witness, if positive and credible, is sufficient to convict. (People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631 (1972).) Considering the lighting and the opportunity to observe, I find nothing improbable or incredible in the troopers identification of defendant.
Defendant’s alibi defense is hardly worthy of belief. He did not testify but his wife and friends testified he had loaned his automobile to Leroy Eldridge, and gone on a fishing trip to Lake of the Ozarks, Missouri. Conveniently, the trip was a camping trip to a remote part of the lake where defendant and his friends coincidentally were not seen by any independent, disinterested witnesses. These witnesses were impeached in an important detail. They denied that defendant had ever worn his hair as Trooper Brueggemann had testified he appeared at the time of the crime. On rebuttal they were effectively contradicted by a photograph of defendant taken approximately nine months prior to the date of the attempt which clearly supported the officer’s testimony. The photograph was the same photograph employed by Trooper Brueggemann in his investigation.
More incredibly, the majority find the trooper’s photographic identification of the defendant impermissibly suggestive under the rule developed in Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968), which was concerned with police displaying photographs to lay eyewitnesses. There the Court certainly did not disapprove of the police obtaining photographs of suspects, and in fact, the opinion observed that the police must obtain photographic identification with dispatch to determine if they are on the “right track.”
The majority ignores the fact that the trooper obtained the photograph in the course of his investigation as a police officer at the scene of the burglary. The codefendant was apprehended at the scene inside a track with the name “H. L. Allender, St. Louis, Missouri” lettered on the sides. He immediately sought to obtain a photograph of Allender. If the photograph was not of the person he had seen outside the building, Allender would have been cleared as a suspect, but could be expected to furnish information as to the whereabouts of his truck. If Allender was the person observed, further investigation for possible suspects was unnecessary. In short, obtaining the photograph was part of the routine investigation of this crime. In my opinion, the officer would have failed in his duty as a law enforcement officer if he had failed to obtain the photograph.
The reasoning of the majority that equates this investigative procedure by a trained police officer, with over 22 years’ service with the Illinois State Police, with photographic identification by lay eyewitnesses is illogical and not based on precedent.
“The exhibition of the photographs constituted a part of the normal investigative procedures looking toward discovery of a culprit and his apprehension. This court cannot lose sight of the fact that people who are the victims of crimes of this sort have rights which must also be protected, namely, that orderly investigative procedures must be inaugurated promptly without delay and must proceed without diversion from their purpose to find the guilty person as soon as possible before recollections become hazy and the enthusiasm of pursuit is diverted by subsequent intervening events of a distracting nature.” People v. Watkins, 46 Ill.2d 273, 278, 279, 263 N.E.2d 115, 119 (1970).
The majority lends credibility to a patently spurious alibi, which the jury did not believe, and treats the testimony of a State police officer as unworthy of belief. I would not do so.