Appeal from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding. Reversed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant was convicted after a bench trial of the offense of rape. Judgment was entered and he was sentenced to a term of three to five years. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt and (2) his pretrial confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.
Testimony of Ruby Grant, complaining witness:
She is married and lives at 7947 South Vernon. On January 27, 1965, she was employed as a supervisor at the Chicago Tile Company and worked from 3:00 p.m. to 11:00 p.m. After work she took a bus to 80th and South Park and walked east to Vernon. There are arc lights on each side of the street at 80th and Vernon.
As she began walking north on Vernon someone ran up behind her and grabbed her. She looked around to see who it was. The man told her to walk in front of him. She was led into a corner of the hallway in her own building. She was told to bend over, and the man pulled up her coat and dress, pulled down her under-garments and proceeded to rape her.
After the man left she immediately ran upstairs and told her husband she had been raped and he called the police. She was taken to St. George's Hospital and examined.
Her eyes were covered during the attack. When she was in the hall she kept trying to look around and the man told her, "Lady, if you keep trying to look at me, I'm going to have to kill you." During the act the man asked her if he was hurting her. When he finished he said, "Come on, let's go around here." She started to cry and told him, "You better try to get away from here. If I'm not upstairs by 12:00 o'clock, my husband will come down looking for me." He stood there about a minute and then ran out the door. She never screamed.
On February 12, 1965, she saw the defendant at the Burnside Police Station. He was in a little room with two police officers.
On cross-examination she testified that she lives in a residential area. On 80th Street there is a laundromat, a grocery store and a restaurant open until 2:00 a.m. As she approached her home someone grabbed her from behind with both hands around her waist. She was very scared but did not scream. They walked into her hallway and over to the south corner. When she turned around on the street she looked up at the man and saw him for about ten seconds. She was not sure if she saw his eyes. He was holding her by the waist as they walked. She was blindfolded by her assailant in the hallway and prior to that he always walked behind her. Once in the corner of the hall she bent forward and was raped from the rear. Her assailant was standing in back of her during the entire attack. When she took off the blindfold the man had gone. There were no marks or scars on his face. She did not know if he was clean shaven.
The man was dressed in a brown or beige, knee-length overcoat. He was five foot nine or ten and weighed about 165 pounds. He had on a gray, "stingy brim hat." He had a long nose and regular chin.
On February 12, 1965, a police officer called her at home and asked her to come to the police station. She went to the police station and into a room where the defendant was seated handcuffed to a chair. There were other police officers in the room. She also saw the defendant at the 11th Street Station when he was called out as being the defendant in this case and during the trial.
The police took her panties and the blindfold. The blindfold was a brown and white head scarf. She did not see the scarf again.
It was stipulated between the parties that the vaginal smears taken by the doctor at St. George's Hospital indicated the presence of male spermatozoa. The panties taken from the complaining witness also contained male spermatozoa. The vaginal ...