Appeal from the Circuit Court of Cook County; the Hon.
BENJAMIN SCHWARTZ, Judge, presiding. Judgment affirmed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Defendant, Eddie Woods, was charged with the crimes of burglary and attempted rape. After a bench trial, defendant was found guilty of both charges and sentenced to the penitentiary for a term of four to ten years, the sentences to run concurrently. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that the lineup conducted by the police was so unfair and prejudicial as to have denied him due process; and that prosecutor's misstatement of facts in closing argument constituted reversible error.
Complainant testified that on May 10, 1967, she lived in a second-floor apartment at 6618 South Wabash, Chicago. Her apartment had three rooms, with only one entrance and exit. The building had a common balcony for the four apartments located on the second floor. On that date, at approximately 9:55 p.m., she was home with her 11-month-old son; her husband was at work. A man whom she identified as defendant came to her door. She did not open the door, but conversed with him through a peephole in the door for a minute or two. Defendant told her that she had left her car lights on; she replied that it wasn't her car. Approximately five or ten minutes later, while she was in her bedroom playing with the baby, she noticed the living room curtains blowing, and she heard feet shuffling in the kitchen. The bedroom lights were on; the lights in the other rooms were off. As she started to leave the bedroom, defendant came in and knocked her to the bed. She screamed, asked him not to hurt her, and told him that she was eight and a half months pregnant at the time. He pulled off her undergarments and attempted to have intercourse with her. He did not take off his clothes, but exposed himself. He then grabbed her by the neck and dragged her to the living room. He dragged her back to the bedroom, slapped her on the face and again tried to have intercourse. She continually pushed and struggled to resist him. He asked for money, looked through her dresser, and dragged her to the bathroom. After a struggle, he pushed her into the bathtub and ran out the door. The entire occurrence took about 25 or 30 minutes. She called her parents, and when they arrived, the police were called. Her assailant was approximately 5 feet 8 inches to 5 feet 11 inches, wearing a lightweight jacket, waist length, zipper front, brown pants, a green plaid shirt and had on a cap. She did not remember how much he weighed. Although she saw his face clearly, she did not recall seeing any identifying mark. She was taken to the hospital that evening, and was released from the hospital four days later. Before she went to the hospital, two police officers interviewed her briefly. She gave the first detailed account of the occurrence to two detectives after her stay in the hospital. The police showed her some photographs, but she did not see any of defendant. After the assault, she next saw defendant in a lineup at the police station on May 21. There were five men in the lineup. At the lineup, defendant was wearing the same jacket and trousers as on the night of the occurrence, and the rest of his clothing was of the same style. He did not wear a cap at the lineup. After the lineup, one of the officers showed her defendant's picture in a book. She had looked through that book previously, but had not recognized defendant.
Officer Richard O'Connell of the Chicago Police Department testified that he requested the complaining witness to come to the police station on May 21 to view a lineup. The lineup was composed of five men. Except for one man in the lineup who was forty years old, the others were about the same age and had physical characteristics similar to defendant. Defendant was 6 feet, weighed approximately 180 pounds and was 19 years of age. At the lineup he wore a dark olive green waist length jacket, green shirt, brown trousers, but was not wearing a cap. When the witness first saw defendant, he noticed a small scar on his right cheek.
For the defense, Brenda Foster, 16 years of age and a friend of defendant, first testified that on May 10, 1967, defendant came to her home about 11:00 a.m. and stayed until about 4:00 p.m. Her mother, brother and sister were also there. She then testified that she thought May 10 was a Monday, that actually on May 10, he came over about 6:30 or 7:00 p.m., and stayed until 8:00 or 9:00 p.m. Her father and sisters were home.
Rita Williams, 15 years of age and also a friend of defendant, testified that on May 10, 1967, defendant came to her home about 11:00 a.m. and left about 6:30 p.m. He then went to Brenda Foster's home and came back afterwards. She and her boyfriend walked defendant to the elevated station about 10:30 or 11:00 p.m. She told defendant to call her when he got home so that she would know that he arrived safely, and he telephoned her about 11:30. Her parents and sister were home on that day.
Defendant testified that on May 10 he went to Rita Williams' home about 10:30 a.m. and stayed until 6:30 p.m. He then went to Brenda Foster's home. Her mother, brothers and sisters were home. He returned to Rita's home about 10:30 p.m. Rita and her boyfriend walked him to the el station. The first time he had ever seen complaining witness was at the lineup, and he was in no way involved in this incident. He weighed 163 pounds and was about 5 feet 11 inches tall. He had a scar 3/4 to 7/8 inches long and 1/8 inch wide on his right cheek bone.
Rita Williams testified in rebuttal for the State that her mother was at home when defendant stopped by the first time.
Brenda Foster testified in rebuttal for the State that her father, brother and two sisters were at home when defendant visited her.
Mary Louise Foster, Brenda's mother, testified in rebuttal for the State that on May 10, 1967, she worked from 4:00 p.m. to 11:45 p.m.; she did not see defendant on that day.
Defendant first contends that he was not proved guilty beyond a reasonable doubt, arguing that the complaining witness' identification of him was not clear and convincing. He contends that the identification was deficient in that the complaining witness, prior to the lineup, was shown a book of pictures, including that of defendant, but was unable to identify his picture, and secondly, she was unable to recall any identifying marks on her attacker, while defendant had a scar on his right cheek.
While defendant's identification must be proved beyond a reasonable doubt, our Supreme Court, in People v. Brinkley, 33 Ill.2d 403, 211 N.E.2d 730 (1965), at pp 405-06, stated:
"Where the identification of an accused is at issue in a criminal case, we have constantly reiterated the rule that the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made."
In that case, the court held that the identification was sufficient even though the complaining witness had previously failed to identify defendant in a lineup and although certain inconsistencies existed in the testimony of the complaining witness. The means of identification and the opportunity to observe the defendant at the time of the crime are factors to be ...