Appeal from the Circuit Court of St. Clair County, Twentieth
Judicial Circuit; the Hon. JAMES W. GRAY, Judge, presiding.
Judgment of conviction affirmed, sentence vacated and cause
remanded with directions.
Defendant, Henry Odom, was convicted in a trial by jury of rape and burglary and sentenced to the penitentiary for a term of twenty-five to fifty years.
Defendant urges, among other things, that the lineup procedure by which he was identified was so conducive to irreparable misidentification as to deny him due process of law and that the uncorroborated testimony of the complaining witness is not of the affirmative character required by law and is insufficient to support the conviction in light of defendant's alibi testimony.
The complaining witness, Mrs. Marcia Buff, 25, testified at trial that on May 21, 1967, she was living at 782 Lindberg Drive, East St. Louis, Illinois, in a rented, two-bedroom house with her two children, ages 9 and 4. Her husband was in Viet Nam at that time. No one else had access to the house. She went to bed around 2:30 a.m., Sunday, May 21, 1967. Her front and back doors were locked, as well as the screen door on the back porch and a chair was pushed against the back door as an additional precaution because the house had been broken into a month earlier.
While she was asleep in her bedroom at the front of the house, someone said, "Wake up." A man was standing over her with a knife at her throat. She saw by a luminous clock that it was five o'clock. The knife had a long thick blade like a butcher knife used in a grocery store, but she could not recall in which hand he held it. She testified, "It was just dusk," and there was a small night-light in the bathroom and a streetlight outside the window. She stated further, "It wasn't bright light, but it was just beginning to get light in the wee hours of the morning." In response to the question, "Could you see in your room?" she stated, "Yes, I could." She saw a man who asked her twice for money, but she had only some small change. She described him at trial as "wearing an overcoat and wash pants and a sport shirt. . . . He wore dark glasses and he had a light beard. Not a beard, but a growth. He needed a shave." He also had a moustache.
As to subsequent events, she testified as follows:
After I told him I didn't have any money, he said, "Get up," so I got up with the knife at my side and he took me into the living room and put my face against the wall and he started kissing me on the shoulder, and he said, "Where is your money?" and I said I didn't have any. He said, "Why do you live alone?" and I said, "I don't, my husband works nights," and he said, "What time will he be home?" I could see it was almost five, so I said, "He comes home around six," and he said, "What time is it?" and I looked at the clock and that is when I saw it was after five o'clock. He started kissing me on the shoulder again and said, "I want your money," and I said, "I don't have any." I said, "My house was broken into a month ago and my husband takes all the money to the bank on Friday night." He then said he wanted to have sexual intercourse. I begged him. I said, "No, please, don't." I said, "Just go and leave me alone," and he said, "I want sexual intercourse," and I said, "No, please," and at this time my little girl came into the living room.
Her four-year-old daughter, who had been sleeping in the bed with her mother, came into the room.
She looked up at him and she said, "Mommy," and he said, "Get that damned kid out of here or I will kill her," so I calmed myself down and told her to go back into the bedroom and she did, and then he said, "Come out onto the porch" and so he pushed me ahead of him and we got almost to the kitchen door where the kitchen is, and he said, "No, it is too light, you will see me too plain," so he turned me around and went into my other bedroom, the small bedroom and made me lie down on the bed and then he said, he started kissing me on my stomach, and he said, "Put it in," and I said, "No, I can't, just go and leave me alone," and he said I says, "My husband is going to come home," and he said, "If he comes home before I am finished, I will kill him. I have a gun." I don't know if he had a gun or not. And then he forced himself on me and then he got up and I kept begging him to leave, and he says, "You will scream," and I said, "No. I won't. Just go and leave me alone." I said, "My husband is going to come home." He says, "You will scream," and I said, "No, I won't. Just go please."
She testified further that penetration was accomplished, that she did not consent and that she did not resist out of fear for her life and the lives of her children.
After the assailant left, she ran to the kitchen, slammed the door and pushed the clothes dryer in front of it. She then ran to the living room door and screamed for help, but no one came, so she went to the lady next door. Her neighbor called her parents and the police. Two policemen arrived around 5:30 a.m., but she does not recall their names. It was 5:15 when she ran out of her house. She stated to them that her assailant was a Negro who wore glasses, had a moustache, and was taller or a "wee bit taller" than she, but that the outstanding feature about him was that he wore dark hornrimmed glasses.
Later that morning, a Detective Johnson and another detective brought a sketch of a man to her house. She testified that the man depicted in the sketch was the one who raped her, but he wore glasses. The officer then drew circles around the eyes of the sketched man and she definitely identified him. No other pictures or sketches were ever shown to her, nor was the sketch introduced into evidence at the trial.
On Monday, May 22, she was taken to the East St. Louis jail to view a lineup of five Negro men. She identified the man in the middle as being her assailant. At the trial, she identified the defendant as her assailant and stated that he was the man she had identified from the lineup. She could remember nothing unusual about the way any of the lineup participants had been dressed and did not remember how many of them wore glasses.
She did not know how far the streetlight was from the windows, but there were metal awnings on the front windows. She could not remember if the collar of her assailant's overcoat was turned up. Although there was a night-light in the bathroom, they were never in there. There were no lights on in the bedroom, but from the streetlight, she testified, "it was light enough to see." He was behind her from the time they left the bedroom and stayed in the living room until they went into the second bedroom. There were no lights in the second bedroom which faces east.
After the lineup, the defendant was taken to a room with the complaining witness, her parents and several officers, and questioned. He was wearing glasses and she had an opportunity to observe him throughout that time. She had also stated that her assailant had a Negro dialect. On redirect she testified that the voice of the defendant she heard in the interrogation room was the same she had heard in her home.
Detective L.G. Adams testified that he participated in the arrest of the defendant and the investigation of this case. The lineup area where defendant was shown was enclosed with a full screen that the witness could see through. The defendant was positioned in the middle of the five men shown. Adams testified that the complaining witness identified the defendant from the lineup. He stated that "she was somewhat reluctant at first. She was not sure at first."
All of the lineup participants were Negroes and were wearing civilian clothes. Only the defendant wore glasses and either three or four had moustaches. At least three of the five were six feet tall or taller and one of the participants was only 20 or 21 years of age. Defendant's beard appeared to be two or three days old at the time ...