Appeal from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a jury trial defendants, Levi Wright and Woodrow Ward, were each convicted of the offenses of rape and armed robbery. They were sentenced to the penitentiary for concurrent terms of seven to fifteen years on each offense. On appeal the issues presented for review are: (1) were the identifications of the two defendants constitutionally proper; and (2) were the defendants denied their right to a fair trial by improper rulings and instructions of the trial court.
On April 2, 1966, at about 8:30 p.m., the prosecutrix left a beauty shop and proceeded home. As she turned into her apartment doorway, someone grabbed her arm from behind and said, "Keep walking, there is two other mens behind you." The three men (later identified as defendant Levi Wright, defendant Woodrow Ward, and one Lonnie Lowe) took her to the rear of an adjoining apartment building and forced her down to an entranceway below street level. There was a light on over the stairway about six or seven feet from the prosecutrix, and she could see the faces of the men in the areaway. At the bottom of the stairway defendant Levi Wright was one to two feet away from her and defendant Ward was directly in front of her. Lonnie Lowe was standing on the stairs as a lookout.
The prosecutrix testified that defendant Wright then asked her for some money, and she gave him the change that was in her pocket. When she gave Wright the money, Ward was standing in front of her, and Lowe began pulling up her skirt. After she gave the change to Wright he grabbed her purse and saw that she had more money. He took approximately $17 from her and placed a knife against her throat and stated, "You lie, I should kill you." All three men then had intercourse with her. She stated that she had been in the gangway for approximately one-half hour.
The prosecutrix then went to the apartment of her cousin and told her that she had been raped. This was approximately 10:00 p.m. Two police officers came to the apartment. She was crying and gave them a description of her assailants. She was then taken to Cook County Hospital and examined. After the examination she was accompanied to the Fillmore police station by Police Officer Severin. At that time she viewed a lineup of six Negro men, who were asked to speak certain words, and she identified defendant Wright and Lowe. As to defendant Ward, she testified that after she viewed the lineup she was waiting in the waiting room for her cousin, when Woodrow Ward entered the station, and she immediately identified him as the third person. She said, "He wasn't in the lineup. . . . Even though he was all by himself, I pointed him out right away. That was the same man that I had previously told the officer that all I remembered about him was that he was 23 and dark complected and had processed hair; and his height." She further said, "I don't recall Detective Severin being there at the time I first saw Woodrow Ward. There wasn't any police officer with me at the time I first saw Woodrow Ward in the station." She identified People's Exhibit No. 1 as the knife which Wright placed at her neck and People's Exhibit No. 3 as the pants she was wearing the night of the occurrence.
On cross-examination the prosecutrix testified she had described defendant Wright to the police as having large eyes and processed hair with large curls. Wright was wearing a beige colored trench coat and had a medium complexion. Defendant Ward was approximately 5', 8", 130 to 140 pounds, and also had processed hair with curls. He was also dark skinned. Lowe was 6', 3", wore a black trench coat and hat and had dark colored pants on. She further testified that when she was attending the lineup, Officer Severin never informed her that they had the men in custody or that they wanted her to identify them. At the lineup, Lowe and Wright were wearing the same clothes they were wearing when they attacked her.
Officer Clay Sostand testified that he was a Chicago police officer assigned to the Fillmore District. On April 2, 1966, at about 9:30 p.m., he interviewed the prosecutrix. He received a description from her as to her three assailants. He then went directly to the district station and as he passed through an interrogation room, there were two men and two police officers present. He recognized the two men from the description that had been given to him by the prosecutrix. He said, "I see those two men in the courtroom," and indicated Wright and Lowe. A short time later the prosecutrix arrived at the police station and identified Wright and Lowe from a lineup of six men. After the lineup, he and Officer Martin arrested Ward after Lowe pointed out Ward as being the third man involved. He identified various People's exhibits as clothing worn by and taken from the defendants. Officer Sostand further testified that after talking to the prosecutrix, they surveyed the area in which she said she had been raped, and they found various cards and papers belonging to the prosecutrix.
Officers William Johnson, James Butler, Charles Martin and James Severin also testified for the State. Johnson testified that he was present at the lineup where the prosecutrix identified Lowe and Wright. Also, when he arrested Lowe, he found a butcher knife on his person. Butler testified that he obtained various items of clothing from Lowe and Wright after the showup. Martin testified that the six Negroes in the lineup were dressed in all sorts of different street attire. He was with Lowe when Lowe pointed out Ward as the third man involved. Officer Severin testified that the prosecutrix was seated in the waiting room when Ward first entered the station.
Joseph Price testified that he was a microanalyst assigned to the Chicago Police Department. He found discharges on the panties of the prosecutrix; on Lowe's pants he found white mucus stains at the fly area; also, some spermatozoa; on the pants of Wright he found spermatozoa; on Ward's clothing the results were negative.
Dr. Matsuda testified that he had occasion to examine the prosecutrix at the hospital. He found that there was no trauma and did not find any sperm under the miscroscopic examination.
Defendant Ward testified that on the right in question he was with Lonnie Lowe and a man by the name of Phillips. They all had a drink together and then he and Phillips went to Ida Cole's house. They left her house at approximately 10:00 p.m. and went back to the Bee Hive Restaurant. At that time the police came into the tavern and took him out to a police car, where Lonnie Lowe was seated. Lonnie Lowe pointed him out and called him "Lefty." He was then taken to the police station but was not placed in a lineup at any time. He saw the prosecutrix in the police station, but had never seen her before. He was then taken in front of her and she was asked if he was the man, and she replied, "No." After he took his hat off she still said he was not the man. On cross-examination he testified that he did not know Phillips' last name. Also, Officer Severin was not present in the station when the prosecutrix refused to identify him.
Lonnie Lowe testified that he was with Woodrow Ward at 6:30 p.m. on April 2, 1966. He then left Ward and when he got off of the "El" he happened to meet Levi Wright. He had not known Wright before that. He asked Wright if he could walk with him because he had been attacked recently in that neighborhood. The police then arrested him and confiscated a knife from him. He carried the knife because he had been previously robbed. He was then placed in a lineup at which time he was not wearing a hat, and the prosecutrix identified him. The police started to beat him up and kept screaming about a third man, but all he told them was that he knew a man by the name of Ward and that Ward was with him that evening. He then identified Ward outside of a tavern.
Ida Cole testified that she was with Ward at her home on the date in question between 9:00 and 9:30 p.m. A man by the name of Phillips was with him.
Shirley Wright, defendant Wright's sister, testified that she saw her brother at a party at 8:30 p.m. on the night in ...