Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT C. PASCHEN, Judge, presiding. Judgment
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Elsworth Brown was convicted by a jury of the crimes of rape and robbery. He was sentenced to the penitentiary for a term of from 50 to 100 years for the rape and to a term from 5 to 10 years for the robbery, the sentences to run concurrently.
The defendant contends that his convictions should be reversed because the evidence did not prove beyond a reasonable doubt that a rape had in fact occurred and that the method of identification employed by the police left a reasonable doubt that he was the assailant. He also contends that his convictions should be reversed and the case remanded for a new trial because: the prosecution appealed to the racial prejudice of the jury both in its opening statement and in the introduction of evidence; the prosecution was allowed to introduce opinion evidence which invaded the province of the jury; remarks of the trial judge while defense counsel was attempting to impeach the prosecutrix, denied him a fair trial, and the closing argument for the prosecution was prejudicial. In the alternative he contends that the sentences imposed upon him are excessive.
About 6:45 p.m. on January 6, 1965, the prosecutrix, who was 44 years of age, arrived at Mount Sinai Hospital, Chicago, to visit her mother. She parked her car across the street from the hospital in Douglas Park and left the auto unlocked. After visiting with her mother she returned to her car, entered by the driver's door and put the key in the ignition.
She testified that at this moment a man, who had concealed himself in the back seat of the car, reached up, grabbed her around the neck with one hand and placed a four-inch dagger against her throat with his other hand. She thought, at first, it might be a robbery so she threw her purse containing $28 into the back seat and said for him to take the money. She pleaded with the man to leave her alone telling him that she was a grandmother and was in her menstrual period, and that her mother was to have her leg amputated. A squad car passed through the park and the man pushed her head down, warning her that if she screamed she would be killed.
After the police car had passed on the man slid his hand down her coat and touched her breasts. She attempted to free herself but he hit her on the side of the head. Blood flowed from the wound. She cried and he told her he would kill her if she did not do as he said. He asked if she ever had sexual relations with a Negro. With his knife at her throat he ordered her to drive out of the park and into an alley. She passed the alley, stopped the car and opened the left-hand door in an attempt to flee, but the man jumped into the front seat, beat her severely and again threatened to kill her.
She was compelled to drive the car into another alley and to turn its lights off. He took the keys from the ignition, told her to make love to him like she did to her husband, ripped her blouse, removed her shoes, slacks and her sanitary brief pants. She said she was hemorrhaging and sick and begged him to leave her alone. She kept her legs together but he forced them apart and raped her. He took back the tissue he had previously given her to wipe the blood from her face, used it to remove his fingerprints from various parts of the car, gave her the ignition keys and left.
After he had departed the prosecutrix urinated over the front seat; it was an attempt, she said, "to force out possibly what was left in me." She drove from the alley and was hurrying to get out of the colored neighborhood when she saw a cab with a white driver. As she hailed the driver, a police car pulled up alongside of them. She called out, "Help me. Help me. I've been raped."
The policemen took her back to Mount Sinai Hospital where the wound in her head was stitched and general medical care administered to her. While at the hospital, police officers brought in a suspect for her to observe but she said this was not the man who attacked her.
The following day the prosecutrix viewed approximately 400 pictures and two days later she was shown about 500 more pictures in albums and projected on slides, but she did not see the picture of her assailant. She viewed lineups with the same result. Six days later, on January 15th, she was shown two pictures of a man who was in police custody. She asked to see the man in person. Upon viewing a lineup composed of six Negro males she positively identified the defendant.
The defendant's principal witnesses were two doctors in residency at Mount Sinai Hospital. One testified that he had examined the prosecutrix the night she was brought into the emergency room; that she had a laceration near her eyebrow but that he saw no other laceration or bruise either on her face or in or outside her vagina. He said he took a smear from her vagina and that she was not menstruating. The second doctor testified that on the same night he examined the smear and was unable to find spermatozoa. On cross-examination he testified that the slide was "fixed and stained" and reexamined the next day. It was stipulated that the second examination showed the existence of a few degenerated spermatozoa.
Two of the witnesses called in rebuttal by the prosecution were a gynecologist and the nurse on duty in the emergency room when the prosecutrix was brought in. The gynecologist, whose entire testimony was objected to by the defendant, was asked a hypothetical question as to whether an injury would be found to the vaginal area of a 44-year-old woman who had been married 24 years and had delivered three children, if she engaged in sexual intercourse and was examined about a half hour later. The witness replied that the woman should not, under ordinary circumstances, have any injuries and that it would make no difference if she was in her menstrual period. On cross-examination he added that there can be an injury during sexual relations whether they are forcible or not, but that there are not usually injuries to a vagina that has delivered three children, whether the relations are forcible or are not. The nurse testified that she noticed a small amount of blood around the prosecutrix' vaginal area when she undressed and again when the area was cleaned. She said the prosecutrix asked for a sanitary pad and she gave her one.
In support of his contention that there is a reasonable doubt whether a rape occurred, the defendant argues that it is improbable that the incidents related by the prosecutrix could have taken place in the early evening in a crowded, colored neighborhood. He also argues that there is little or no substantiation of her story that her clothes were torn, that she was beaten or cut or that she was in her menstrual period. He amplifies these arguments by pointing out that at the trial the State did not produce the clothing, the front seat of the car (to prove the presence of sperm, blood or urine), or the taxi driver who was supposed to have been the first white person she saw after the rape.
When a conviction in a rape case is dependent upon the testimony of the prosecutrix and the charge is denied, the testimony of the prosecutrix must be corroborated by evidence of other facts and circumstances (People v. Reaves, 24 Ill.2d 380, 183 N.E.2d 169 (1962)) unless her testimony is clear and convincing, in which case corroborative evidence is not required. People v. ...