Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE N. LEIGHTON, Judge, presiding. Judgment
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
The appellant, George W. Hankins, ("defendant" herein) was tried by the court and convicted of attempted rape.
On appeal defendant contends, (1) that the testimony of the complaining witness was neither sufficiently clear and convincing nor sufficiently corroborated to establish the defendant's guilt beyond a reasonable doubt; (2) that the specific intent to commit rape was not established beyond a reasonable doubt; and, (3) that rulings of the trial court effectively deprived defendant of his right to confrontation.
The complaining witness, Miss Donna Marie Bowling, testified as follows: Early in the morning of July 22, 1965, she was sleeping alone in her bedroom at 2923 West 24th Street, Chicago, Illinois. Her parents and her brother were asleep in nearby rooms of the apartment. She was sleeping on her stomach when she was awakened by someone on top of her. She noticed that the lights had been turned on. The person had his hand over her mouth. He told her not to make any noise and to do what he told her or he would kill her. The man cut off her pajamas and underwear with a pair of scissors taken from her drawer. He then rolled her over and got on top of her. She opened her eyes and saw the defendant, whom she identified in court. She testified that she had seen the man walking a dog near her home about ten times prior to July 22, 1965. She was entirely unclothed and defendant was unclothed from the waist down. The defendant tried to force her legs apart. She cried, pleaded with him to stop and refused to open her legs. The defendant then attempted to force her to satisfy him orally. Again she refused and successfully resisted his efforts. Finally, the defendant tried to force her to masturbate him and upon her refusal he brought himself to a climax. Thereafter, the defendant told Miss Bowling he was going to leave and that she should keep her eyes closed and remain silent until she heard him leave. She kept her eyes closed for about five minutes but did not hear him leave. She then opened her eyes and finding that defendant was gone she ran to her parents' room. The police were called and came to the Bowling apartment to investigate. Miss Bowling also found that some of her possessions, including an electric razor, some clothing and some jewelry were missing.
On July 30, 1965, Miss Bowling went to the police station where she identified defendant, who had been brought in on another matter, as the man who had attacked her. She also saw and identified her electric razor at the police station. It had been recovered from defendant's home by the police.
The defendant pleaded guilty to a charge of burglary of the complaining witness' apartment. However, the defendant denied the charge of attempted rape. At trial, he testified that he was in Miss Bowling's bedroom on the night in question, that he ransacked the room and stole the razor. He testified, however, that Miss Bowling was not in the room at that time and that he saw her for the first time at the police station on July 30, 1965.
Defendant's first contention on appeal is premised on the rule stated by the Illinois Supreme Court in People v. Reaves, 24 Ill.2d 380, 382, 183 N.E.2d 169 (1962):
"Because a charge of rape is easy to make and hard to defend, the law requires that where the accused denies it the testimony of the prosecuting witness must either be corroborated or be clear and convincing."
Defendant argues that the complaining witness' story was neither sufficiently clear and convincing nor sufficiently corroborated to establish his guilt beyond a reasonable doubt. We find that the testimony of the witness was clear and convincing. Her testimony was also corroborated by the testimony of the defendant.
Defendant contends that the witness' testimony that defendant wore a mask over the upper portion of his face and the failure of the police report to note that she mentioned a mask to the officers who investigated the complaint weakens the reliability of her identification of defendant. The defendant's admission that he was in Miss Bowling's bedroom in the early hours of July 22, 1965, strongly corroborates her identification. The witness' description of defendant to the police at her home immediately after the attack upon her and her identification of defendant at the police station eight days after the occurrence is additional corroboration.
It is contended that inconsistencies in the witness' testimony as to when she recognized defendant as a "neighborhood man" whom she had seen previous to July 22, 1965, walking his dog near her home impeach her credibility. It is clear from the record that the witness first mentioned the fact that she so recognized defendant when she saw him at the police station eight days after the occurrence. Though the witness' testimony is not definite as to when she actually realized defendant was someone she had seen previously we do not observe any inconsistency in the testimony which renders her story either unclear or unconvincing.
Defendant contends that due to the mask, lighting conditions and the witness' statement that she "got a glimpse of him" the identification testimony is weak. This contention pertains to the weight and credibility of the testimony, it does not relate to any inconsistency or improbability which would render the witness' story unclear or unconvincing.
"It is the duty of the court in a bench trial to determine the credibility of the witnesses and the weight to be given their testimony, and unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of defendant's guilt, the finding of the court will not be disturbed." People v. Reaves, Supra, at 382.
Defendant contends that the failure of the witness to cry out so as to arouse her family during the attack renders her story unconvincing. According to Miss Bowling's testimony the defendant said that he would kill her if she did not do as told. In view of such a threat her story is not made less convincing by the fact of her failure to scream or call out. See People v. Butler, 80 Ill. App.2d 265, 225 N.E.2d 493 (1967).
The defendant also contends that failure of the State to bring in the cut and torn clothing of the complaining witness, fingerprint analysis of the scissors with which her clothing was cut and the soiled bed sheets gives rise to an inference that the evidence would have been unfavorable to the State or is nonexistent. The State is not required to introduce all evidence which might be admitted, especially where that evidence would have ...