APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES IBEN, Judge, presiding.
MR. PRESIDING JUSTICE RYAN DELIVERED THE OPINION OF THE COURT: The defendant was indicted for the crimes of Rape and Indecent Liberties with a Child. The jury found him guilty of both charges and he was sentenced to the Illinois State Penitentiary for not less than seven or more than 11 years.
In this appeal defendant claims: (1) That he was deprived of his right to counsel at the "lineup"; (2) That the pre-trial identification procedures were defective; (3) That the court erred in denying defendant's pre-trial discovery motion; (4) That the court erred in refusing to direct a verdict of not guilty on the indecent liberties with a child charge, and (5) That the state failed to proved defendant guilty beyond a reasonable doubt.
On March 4, 1969, the complaining witness Francine Knox, a 12-year old 6th grade student left school about 4 P.M. She had made arrangements to meet her mother at a house located at 837 West Third Street in Peoria. The mother was going to look at the house preliminary to renting the same. When Francine arrived at the house, no one was there, so she waited on the porch. About 10 or 15 minutes later a man came around the porch from the back of the house and went into the house. A few minutes later he invited Francine into the house to warm her hands. She first refused and then entered the kitchen. The man made some improper advances toward Francine and when she resisted he threatened to cut off her head with a saw he had in his hands. She then submitted. After the performance of the act, she ran home and told her mother and father that she had been raped. They then returned to the scene of the offense. No one was there so the police were called. Francine gave a description of the man to the police and then was taken to the hospital. An examination by a doctor indicated that she had had intercourse and blood was flowing from her genital tract. A smear taken from the back of the vagina indicated the presence of male sperm.
The defendant and his wife had been residing in the house where the act occurrred for about two months. The owner had permitted them to live there rent free with the understanding that the defendant would do some repair work on the house. After Francine gave a description of her attacker to the police a pickup order was issued for the defendant. He was arrested about 24 hours later, advised of his rights and booked for the offense. During the trial Francine identified the defendant as the man who had raped her.
After the defendant was arrested, two police officers were directed to take six pictures to show to Francine. These pictures were of six different individuals one picture being a picture of the defendant. Francine identified the defendant's picture as the man who had raped her. She and her mother were subsequently taken to the police station. The pictures had been taken from the police records department. Once they had been used for the identification procedure they were returned to the files and no record was kept of the identity of the subjects in the other pictures.
There are some discrepancies in the testimony as to whether the pictures were shown to Francine on March 5, the day the defendant was arrested, or on March 6, the same day Francine and her mother were brought to the police station. In any event, on March 6 after Francine and her mother had been brought to the police station she viewed four persons in a lineup. At this lineup she again identified defendant as the man who had raped her. At that time the defendant did not have an attorney.
The defendant relies upon the United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178 to support his contention that the police denied him due process of law by placing him in a lineup when he was not represented by counsel. We are of the opinion that the defendant's constitutional right to counsel at this point in the proceeding was waived.
About an hour before the lineup a detective sergeant of the Peoria police department went to see the defendant in his cell. He advised the defendant that he was a possible suspect for the offense of rape of a young girl and that they wanted him to be in a lineup. He informed the defendant that he could have an attorney present and if he could not afford to hire one the court would provide him with an attorney. The defendant indicated he did not want an attorney. The sergenat gave the defendant a waiver of attorney form and asked him to read it. The defendant held it as though he were reading it and then signed it. The waiver specifically recites that the defendant had been advised that the police desired a person or persons to view him as a suspect of the offense of rape; that he had been advised of his right to have an attorney and his right to have the court appoint an attorney. It recites that he waives his rights as explained to him and consents to being viewed without benefit of an attorney being present in his behalf.
The defendant was 19 years old. He now insists that he was an unsophisticated youth with no previous experience with law enforcement officers and that he was somehow taken advantage of by experienced police officials. There is nothing in the record to indicate that the defendant could not read or that he did not understand his rights when the same were explained to him. Everything in the record indicates to the contrary. At the hearing on a motion to suppress the identification held out of the presence of the jury the police sergeant testified as to the circumstances surrounding the execution of the waiver. The defendant offered no evidence at the hearing to contradict the testimony of the sergeant. The record indicates that the defendant knowingly waived his right to counsel. It has been held that the right to counsel at a lineup as guaranteed by United States v. Wade and Gilbert v. California can be waived after an accused has been advised of his right to counsel and has been informed that counsel would be provided for him if he were indigent. (People v. Fowler, 76 Cal. Reptr. 2.) It has also been held that a court of review would not say that a minor above the age of 18 who signed a written waiver of his constitutional right to jury trial was deprived of his rights where the record did not disclose coercion, actual misapprehension or misrepresentation by a person in authority. (People v. Harden (1966) 78 Ill. App.2d 431; 222 N.E.2d 693. Affirmed 38 Ill.2d 559, 232 N.E.2d 725.) We hold that the same reasoning applies to the waiver by a minor above the age of 18 of his right to be represented by counsel at a lineup.
• 1 We are not unmindful of a recent decision of the United States Circuit Court of Appeals for the Third Circuit (U.S. v. Zeiler (1970), 427 Fed.2d 1305) which held that the consideration that led the court in Wade to guarantee the right to counsel at lineups apply equally to photographic identifications after defendant is in custody. It appears in the present case that the defendant had not waived his right to counsel at the time of the photographic identification by Francine Knox but he did execute the waiver prior to the lineup viewing. However, the defendant did not in the trial court nor did he in this court raise the question of his right to counsel at the time of the photographic identification. We must therefore consider that the right to raise this question has been waived by the defendant and we are not at liberty to pass on the same. People v. Smith, 44 Ill.2d 82, 254 N.E.2d 492; People v. Hanna, 42 Ill.2d 323, 247 N.E.2d 610.
We also do not agree with the defendant's position that the pre-trial identification procedures were unnecessarily suggestive and conducive to mistaken identification. There are two aspects of the pre-trial identification that must be examined: (1) The identification of the defendant's picture, and (2) The identification of the defendant in the lineup.
The defendant insists that since he was already in custody as a suspect for the offense it was error for the police to exhibit photographs of the defendant to the complaining witness. In support of this contention defendant quotes from Wall, Eyewitness Identification in Criminal Cases at page 70 as follows:
"Where the suspect is known and in custody, however, the showing of photographs to the witness is usually improper, even when the procedure used in showing them is a fair one."
We are unwilling to arbitrarily condemn the practice of showing photographs to witnesses in all cases where the suspect is known and in custody. The United States Supreme Court has considered initial identification by photographs in Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247 and observed:
"Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint of both apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."
• 2 In determining whether the identification by photograph was proper, whether the defendant was or was not known or in custody at the time of the identification is not alone controlling. The test is whether the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable ...