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People v. Caldwell

NOVEMBER 24, 1969.




Appeal from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding. Affirmed. MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

In a jury trial defendant was found guilty of the separate offenses of (1) armed robbery, (2) attempt to commit deviate sexual assault, and (3) attempt to commit rape. Defendant was sentenced to the penitentiary for a term of 15 to 30 years on the armed robbery offense and for terms of 10 to 14 years on each of the other two offenses. The three sentences were ordered to be served concurrently.

On appeal defendant contends that he was not proved guilty beyond a reasonable doubt because (a) the method and procedure of the identification of defendant was unlawful and highly prejudicial and deprived defendant of his constitutional rights, and (b) during the trial evidence by police officers as to the identification made by the complaining witness should not have been admitted into evidence.

On November 3, 1966, the complaining witness was in the employ of the Palmer House as a cocktail waitress. On that evening she went to work at about eight o'clock, and while in the women's locker room on the 5th floor, she took off all of her clothing to make a change into her uniform. When she turned around she found a man standing there. He was taller than her, very skinny, and had a little black hat, black leather jacket and dark pants. She thought he was one of the boys who worked in the hotel and told him to get out, but he didn't move. He put a knife to her throat and said, "Look lady, I could kill you if I wanted to." He then unsuccessfully tried to rape her. He then blindfolded and gagged her. He demanded that she commit an act of sexual deviation on him, which she refused. He then committed an act of sexual deviation on her. She screamed, and the blindfold and gag came off. He then took $48 out of her purse. She asked him not to take the money because it was part of her rent money, and he said he needed it more than she did because he was an addict. Screaming, naked and hysterical, she ran out of the door and down the corridor. A woman opened a door and told her to come in. She was in the offices of Dr. Duerme. The doctor gave her a sheet to wrap around herself. He examined her and found the outer part of her sexual organs smeared with blood. He cleaned her wounds and gave her a tranquilizer to quiet her. Two policemen took her to Wesley Hospital for further examination. The defendant was arrested at approximately 5:00 a.m. on November 5, 1966.

The complaining witness further testified that while she was in the doctor's office she was shown three photographs by Mr. Pierson, who was the Director of Safety and Security for the Palmer House. She picked out one (People's Exhibit 3) and said, "Yes sir, it is, that is exactly what he looked like almost." On November 4 at 6:00 a.m. she viewed a lineup of four men but identified no one. On November 4 at about 7:00 p.m. the police came to her apartment with a book of about 100 photographs, out of which she selected one (People's Exhibit 4). On November 5, 1966, at about 6:00 a.m. she attended a second lineup consisting of four men, and she identified the defendant in that lineup. At the trial she made an in-court identification and also testified that during the attack on her the lighting conditions in the locker room were good, and the defendant was with her for about fifteen or twenty minutes.

Other witnesses for the State included Robert L. Pierson, who was the Director of Safety and Security at the Palmer House on November 3, 1966. At about 8:15 on that evening he went to the office of Dr. Duerme and showed three photographs to the complaining witness. She picked out one as being that of the defendant (People's Exhibit 3). On November 4, 1966, at about 7:00 p.m. he accompanied Police Officers Albertson and Strohlman and a Mr. Williams to the apartment of the complaining witness. She was shown a book of about 100 photographs, and she picked out one as being that of the defendant.

Robert Strohlman, a police officer, who was assigned to investigate "an attempted rape" at the Palmer House on November 3, 1966, testified that he and his partner arrived at the Palmer House as the victim was being taken to the hospital. Pierson showed him the alleged photograph of defendant (Exhibit 3). On November 4, he and his partner, Officer Albertson, interviewed the victim at her apartment and showed her about 100 photographs. She picked out one as being a picture of the man who attacked her on November 3 (People's Exhibit 4). He also testified as to the two lineups and the identification of defendant by the victim at the second lineup on November 5, 1966.

Officer Merle Albertson substantially corroborated the testimony of his partner, Officer Strohlman. Regarding Exhibit 4, he testified that when the complaining witness searched through the book of 100 photographs, she went through the book and came to one picture, then she hesitated. She then put her finger on that page and continued through the book, and when she finished she went back to the one picture and looked at it awhile and said, "That is the man but he looks a little different than the other picture that I saw."

Dr. Francisco Duerme testified that he was a physician employed by the Palmer House. While on duty and about 8:00 p.m. on November 3, 1966, he saw the complaining witness in the office, nude and trembling. Her sexual organs were smeared with blood. She was frantic and had hysterical reaction to the incident. He gave her a tranquilizer and it took five minutes before he could communicate with her. After she calmed down he was able to converse with her, and she gave him answers to his questions just like any other patient. He never saw her again.

Ozel Anderson testified that on the evening of November 3, 1966, he was employed by the Palmer House as a lobby porter. He was going toward an elevator, and "a fellow came off the elevator in a hurry, in a daze and he jumped back in the elevator." The witness pointed out defendant as the man he saw. Also, he had examined photographs several days after the occurrence and identified Exhibit 4 as a picture of the man who stepped off and back on the elevator on November 3.

The exhibits offered in evidence by the State included the two photographs selected by the victim (Exhibits 3 and 4). Counsel for the defendant objected to their admission into evidence because "Exhibit 3 carries on the back of it in handwriting `Junkie and shoplifter, Arcade Shops,' and I would not want the jury to observe this particular exhibit. To start with, it would be highly inflammatory. . . . I have also even greater objection to Exhibit 4 which shows him in a police photo. It is highly inflammatory. And the fact that he is identified by the witness from the stand is all that is sufficient and the effect of putting forth this evidence to the jury, compared to its probative value here is highly inflammatory and prejudicial and I would say would sufficiently influence the mind of this jury to cause my client here not to be able to receive a fair and impartial adjudication of this matter." After some colloquy between court and counsel, the photographs were received in evidence and the court directed that the written data be "stricken off." This was done, and the two photographs were shown to the jury.

Defendant did not testify. The evidence offered on his behalf consisted of the testimony of his mother, Isabelle Lewis, with whom he lived. She testified that on the morning of November 3, defendant had a swollen foot and was limping, and she bathed it for him. Defendant was not working at the time, and he walked with great difficulty. After she left for work, she did not again see the defendant until after he was arrested.

In rebuttal, Officer Strohlman testified that during his investigation Mrs. Lewis stated to him that she had not seen defendant in several months. Robert Pierson testified he saw defendant on October 21, 1966, and he had a slight limp. He was present on November 5, when defendant was arrested, and to his knowledge defendant was not limping then. After he was placed in custody, he began to limp. Officer Albertson was present when defendant was arrested, and he did not notice any limp. The record officer of the County Jail testified that a medical record showed that defendant's foot was treated for a "fungi infection."

Initially, we consider defendant's contention that it was error to exhibit photographs of the defendant to the complaining witness before a corporeal identification was made. Defendant states, "Here she was twice shown a photograph of the defendant before the second lineup in which he appeared and the only one in which she identified him."

Defendant's authorities include numerous and lengthy excerpts from Wall's Eye-Witness Identification in Criminal Cases, from ...

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