Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WILLIAM V. DALY, Judge, presiding. Judgment
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
At a jury trial defendant, Fred Oparka, and his brother, William Oparka, were found guilty of the crime of rape and were each sentenced to 60 years in the Illinois State Penitentiary. Fred Oparka prosecutes this appeal wherein he maintains that the evidence was insufficient to establish his guilt beyond a reasonable doubt and, secondly, that certain conduct and remarks of the prosecuting attorney during final argument misled and confused the jury, prejudicing defendant and depriving him of a fair and impartial trial.
On June 12, 1959, at approximately 10:45 p.m., Joyce Ray, the prosecuting witness, was seated in a parked car with Mr. Louis Iavarone, in the 9200 block of South Yates Avenue in Chicago. Miss Ray at that time was a student nurse at the South Chicago Hospital and resided in the nurses' quarters one-half block from where the car was parked. Two men, later identified by Miss Ray as defendant and his brother, approached the Iavarone automobile, William Oparka approaching from the driver's side carrying a gun and defendant approaching from the passenger side. Iavarone was ordered into the back seat of the automobile and told to keep down and keep quiet. The Oparka brothers entered the front seat and forced Miss Ray to sit between them. With defendant holding the gun on Miss Ray and Iavarone, William Oparka drove the automobile across 93rd Street to a secluded place on 94th Street between Paxton and Merrill Avenues. William Oparka entered the back seat of the automobile, took a small brown bottle containing either chloroform or ether, poured some of its contents over a handkerchief which he requested and received from Iavarone and rendered Iavarone unconscious. Defendant then proceeded to rip the clothes off Miss Ray and, as both men hit and choked her, defendant had sexual intercourse with her. The two men then changed places in the automobile and William Oparka had sexual intercourse with Miss Ray. During the course of both acts, one or the other of the men held the pistol on Miss Ray. She struggled with the two men and succeeded in kicking the automobile door open several times but it was finally closed and locked.
After the rape the two men bound and gagged Miss Ray with her torn clothing and attempted to use the chloroform or ether on her, but she caused the contents of the bottle to spill on the front seat of the automobile. The men then wiped the inside of the automobile with Miss Ray's torn clothing, disconnected the horn and left, stating to Miss Ray that they had Iavarone's wallet and that they would "get him" if she told anyone of what had occurred. After they left Miss Ray succeeded in removing the gag from her mouth and awakened Iavarone who untied her hands. Miss Ray then went to the nearest house, about a block from the scene, where she made complaint. Iavarone was still feeling the effects of the chloroform or ether and had to be helped to the house. The police were summoned and both Miss Ray and Iavarone were taken to the hospital for treatment.
At the hospital Miss Ray was examined by Dr. Weiss, who testified that he observed a large bruise and redness on the back of her neck. He also observed fresh blood coming from a tear in her hymen membrane and stated that the tear occurred within 24 hours of the time he treated her. A smear test was performed which revealed the presence of blood and sperm. The doctor stated that Miss Ray was also treated for "marked nervousness."
A Chicago police officer testified that he retrieved Miss Ray's torn clothing from the automobile where the incident had occurred and further that he noticed a "medicinal odor" in the automobile which he identified as being chloroform or ether.
Miss Ray testified that she gave a description of the two men to the police. She stated she was unable to see them very well when they first confronted her and Iavarone on Yates Avenue due to poor lighting conditions on the street, but that she could see them plainly when the automobile was being driven across 93rd Street, a busy thoroughfare, to 94th Street between Paxton and Merrill Avenues, due to the lights of oncoming traffic and the Iavarone automobile's dashboard lights. Iavarone testified he was unable to identify either of the defendants as being the men who confronted him and Miss Ray because he was ordered to keep down in the automobile, the result of which he was unable to see the men's faces and after which he was rendered unconscious.
On August 11, 1959, Sergeant John Glas of the Sex Division of the Detective Bureau stopped defendant in an automobile on an unrelated matter in the vicinity of 103rd and Torrence Avenue, a short distance from where Miss Ray had been raped. The officer noticed that defendant matched the description of one of the men who accosted Miss Ray. The automobile, which belonged to William Oparka, was searched and the officer recovered a loaded Luger pistol in the glove compartment, a loaded shotgun in the trunk and numerous shells laying on the front seat of the automobile. The Luger pistol was identified by Miss Ray at the trial as the gun which was held on her during the rapes. Defendant was arrested and taken to the 8th District Police Station where he was shown in a police lineup with five or six other men on the following morning. Miss Ray viewed the lineup and stated that she thought defendant was one of the men who raped her, but that she was confused and wanted to be certain and that she wanted to have a little time to think it over. Miss Ray viewed a second lineup later that day at 11th and State Streets and positively identified defendant as one of the men who raped her. Miss Ray stated that her confusion at the first lineup was occasioned by the very bright lights shining on the men in the lineup, that she had seen defendant in dimmer lighting on the night of the rape, and that the lighting at the lineup at 11th and State Streets was much closer to the lighting on the night of the rapes, enabling her to make her positive identification of defendant.
William Oparka was arrested at his place of employment, The Applied Immunology Laboratory, later that day and was taken to the Sex Bureau at 26th and California Avenue, shown in a lineup which included defendant, and was identified by Miss Ray as one of the men who accosted her. At the time of William Oparka's arrest, he asked the arresting police officer, "Are you out here to arrest me for the rape of that girl on the south side?" The arresting officer testified that prior to this statement he did not inform William Oparka of the nature of his business.
Mildred Peters, a registered nurse and a fellow employee of William Oparka, testified that Oparka showed her a nurse's wristwatch sometime during the week of August 5, 1959, and that Oparka said that he found it in the ashtray of his automobile. The jury was instructed that anything said by William Oparka outside the presence of the defendant was to be considered only as to William Oparka and not as to defendant. Mrs. Peters further testified that there was a supply of ether at the laboratory where Oparka worked and that it was kept in an unlocked cabinet and was easily accessible to employees. The trial court refused to allow into evidence a small brown bottle which was allegedly similar to the type used in the laboratory where Oparka worked and allegedly similar to the one used by him on the night of the rapes.
Buss West testified on behalf of defendants and stated he was a bartender in a tavern in the 5700 block of Indiana Avenue in Chicago. He testified that William Oparka frequented the tavern and that he remembered Oparka being in the tavern on the night in question until closing time, after which he and Oparka went out for breakfast. He stated that William Oparka never left his presence until approximately 4:30 a.m. the following morning.
Shelby Landini, a friend of defendant's sister, testified for the defense that she talked to Miss Ray in a bowling alley after July 12th and that Miss Ray told her she was connected with the Oparka case. Mrs. Landini testified that she asked Miss Ray if Miss Ray could identify "the boys" and that Miss Ray replied that she could not because of the fact that it was dark. Gerald Sajeak, another defense witness, testified that he and defendant were in the Escape Tavern at 107th and Torrence Avenue on the night of the rapes.
Defendant's first point, that the evidence fails to show him guilty beyond all reasonable doubt, is based primarily on the position that Miss Ray had little opportunity to observe her assailants and that she failed to give a positive identification of them.
[1-3] The question of the accuracy of a description given by a witness connecting a defendant with a crime and the weight to be given thereto are matters to be determined by the trier of fact, and a reviewing court will not interfere with the determination unless it is clearly or manifestly erroneous. A positive identification given by a single witness, where credible, will be sufficient to justify a finding of guilty. People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920. Miss Ray had ample time and opportunity to observe both of her assailants. Although she stated she did not get a good look at them when they first confronted her and Iavarone due to the poor lighting conditions on the street, she sat next to both men and did have adequate opportunity and light to observe their physical and facial features from the time they ...