Appeal from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding. Affirmed in part and reversed in part.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rape. Ill Rev Stats 1965, c 38, § 11-1.
Aggravated battery. Ill Rev Stats 1965, c 38, § 12-4.
Attempt (murder). Ill Rev Stats 1965, c 38, §§ 8-4, 9-1.
Robbery. Ill Rev Stats 1965, c 38, § 18-1.
After a bench trial, defendant was found guilty on all charges and sentenced to concurrent terms of 50 to 75 years for rape, 9 to 10 years for aggravated battery, 19 to 20 years for attempted murder, and 19 to 20 years for robbery.
CONTENTIONS RAISED ON APPEAL
1. Alibi evidence, coupled with prejudicial identification testimony, raises a reasonable doubt of defendant's guilt.
2. Defendant was prejudiced by an improper identification procedure.
Anna B. Smith, for the State:
On February 23, 1966, at approximately 12:15 p.m., she and her three young children were in the dining room of their apartment at 1931 South Homan Avenue watching television. She looked up, while nursing the baby, and saw a man she identified as defendant standing in the doorway leading from the living room. Holding a knife, he told her to "shut up" and that he would kill her. She told him to take what he wanted and leave, but he lunged for her, causing her to release the baby. He then banged her head against a chest of drawers, again saying, "Shut up. I will kill you." As her two young sons left the room, one said, "Leave my mama alone," whereupon defendant swung at him with the knife. Defendant then began hitting the witness in the head and picking at her face with his knife, and continued to say, "Shut up. I will kill you." He asked if she had a gun or any money, but she replied that she didn't.
He forced her into the bedroom, started to rip off her clothing, and made her strip and lie on the bed. He then forced her to remove her pants, tore off her top clothing, and said, "Keep your eyes closed or I will pick them out." He stuck her in the shoulder with the knife before unzipping his pants and raping her. During the rape, he tried to cover her face with her robe top, but she kept pushing it away because she was smothering. After he had finished the act, he cleaned himself and ransacked the dresser, taking a dollar and some change. He said that he wanted to kill her and that he would see her again. When defendant had left, she ran to the phone, but defendant had cut the cord, so she hurried to the back and front doors to "holler" for help. A neighbor, Mrs. Berry, from an apartment on the floor below, immediately came upstairs to help. Witness received cuts on several fingers, the right shoulder, her left side, her stomach, and was slashed and scraped all over her face.
Witness stated that defendant was wearing dark clothing, dark pants, a dark necktie, and a "flowered blue," white or light shirt. He had on a dark trench coat with a dark blazer underneath. The trench coat was an all-weather one with a plaid design on it. She told Officer Cangelosi, who arrived on the scene shortly after the attack, that the man might have been wearing a pink shirt. She never said that the shirt was light red. She did tell him that he was wearing a charcoal gray coat. Defendant had a hat on, but she couldn't "remember it," although she may have told the officer it was charcoal gray.
The description of the assailant which she gave to Officer Cangelosi was of a male Negro in his twenties, 5' 8" to 5' 10" tall, and weighing about 190 to 200 pounds. Defendant had black skin and an unkempt mustache, meaning that there were ragged, unshaved hairs growing across the lip. She was "absolutely certain" that defendant is the man who attacked her, as she was able to observe him during the entire episode, except for the periods of time during the rape when he covered her face.
While she was recuperating in the hospital, Officer King showed her a book full of photographs from which she picked one out. The next day, the officer brought defendant to the ...