NOVEMBER 1, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
BOBBY WORD HARDEN, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. McMILLEN, Judge, presiding.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:
Following a bench trial, Bobby Word Harden was found guilty of the offenses of aggravated kidnapping and rape. Judgment was entered on the findings and he was sentenced to concurrent terms of not less than five nor more than ten years in the Illinois State Penitentiary. On appeal he contends:
1) That he was denied his right to counsel at a pre-indictment showup;
2) That the trial court erred in refusing to suppress the identification testimony of the prosecutrix as the tainted product of an improperly suggestive identification procedure; and
3) That the totality of the evidence discredits the accuracy of the identification testimony of the prosecutrix and is insufficient to establish guilt beyond a reasonable doubt.
At the hearing on defendant's motion to suppress identification testimony, Detective Ralph Storck testified that he arrested the defendant in front of his place of employment on June 22, 1967. At the time of his arrest defendant was advised of his rights and informed that a motorcycle bearing license plates registered to him was seen at the site of a criminal offense. The defendant was not advised of the nature of the crime until he had been transported to the police station.
At the station Detective Storck had a conversation with the prosecutrix and then took the defendant into an interrogation room. He did not see the prosecutrix identify the defendant.
Finally, Detective Storck testified that a lineup was not held, as had been done on the previous day, because a canvass of two lockups failed to reveal another individual who bore a resemblance to the defendant, especially with respect to his beard.
The prosecutrix testified that on June 21, 1967, she appeared at the police station at the request of the police. She viewed a five man lineup, but no identification was made. There was one individual in that lineup who resembled the offender, but his beard and voice were different.
On the following day she again appeared at the station pursuant to request. At this time she was questioned as to how she could identify the offender and she affirmed that she could recognize him on sight and could also identify his voice. She was taken into a hallway where she overheard two men talking. She immediately identified the voice of one of these men as that of her attacker. She then viewed the men to whom she had been listening and recognized one of them as the offender.
The evidence presented by the State at trial may be summarized as follows. The prosecutrix left her apartment at approximately 10:10 P.M. on the evening of June 20, 1967, and began walking toward her car which was parked near the corner. As she passed over a grassy area, she fell due to a depression in the ground and also possibly due to the fact that she sometimes experienced difficulty in walking as she suffered from cerebral palsy. Immediately after she fell, she noticed a man passing by on a motorcycle who seemed to be looking at her.
After she had risen and walked to her car, she started the motor and put on her glasses. She then noticed that a man had parked a motorcycle in front of her apartment building and was approaching her rapidly on foot. At first she thought that the man might be a neighbor who had seen her fall and was concerned about her welfare. As the man drew nearer, however, it became apparent to her that he was a stranger. He called to her and, upon reaching the car, leaned toward her through the open window and told her that her license plate was hanging down. He then opened the door and slid part way into the car beside her, placing a hard object behind her neck and stating, "This is a knife. Don't give me any trouble." She depressed the car horn in the hope of summoning aid, but no one responded.
He placed his foot on hers, which was on the accelerator pedal and ordered her to lie down on the seat and remove her glasses as she had seen enough already. She complied with both orders, placing her glasses on the dashboard. By this time, however, she had had a good opportunity to view him, especially when he had leaned in through the open window, as the car was parked near the corner and the street light was burning. He was tall, approximately five feet nine inches, and thin but muscular. He had a reddish-brown goatee and was wearing a black jacket, light colored tight fitting pants, and shiny black shoes or boots without laces. He kept the hard object at her neck while she was lying on the seat.
He drove away at a high rate of speed and asked her how to get to an expressway and later how to get to Winnetka Road. She told him that she did not know the way to the expressway, but he nevertheless reached it very shortly, apparently himself knowing the route.
Once on the expressway he ordered her to sit up as if she were his girl friend, but to face away from him. Later, he again ordered her to lie down. He stated that he had gotten out of prison three days earlier and was on his way to his home in Wisconsin.
As she lay on the seat she was able to see out the window on the passenger side of the auto and noticed the sign for the Winnetka Road exit. He passed the exit and she remained silent. Thereafter, however, he said, "That is it back there," and exited the expressway. After leaving the expressway, he kept driving back and forth on the road, stating that he was looking for a large tree but that everything looked different to him. He also stated that he was searching for the spot where he had concealed a package before entering prison. Later he stated that the package contained money which he needed in order to return to his home in Wisconsin.
Ultimately he turned down a side road and, after driving a short distance, stopped the car and turned off the lights. She could see trees and bushes in the area although the light was poor. He used a scarf which had been on the seat to tie her hands behind her back, again telling her not to look at him. He then rearranged her clothing by pulling her sweater over her eyes, pushing her skirt up and removing her pants. He experienced some difficulty in attempting to sexually assault her and then pulled her into the back seat where he forced her to engage in an act of intercourse. While they were in the back seat, her sweater slipped down from over her eyes and she again was able to view him. Prior to and during the actual attack she was screaming and imploring him not to so engage her.
Following the act of intercourse he got out of the car and dressed, ordering her back into the front seat. He then dashed away from the car momentarily. When he returned he placed something on the dashboard.
The car had become mired in mud and his attempts to free it proved unsuccessful. He then left, saying that he was going to get someone to tow it and that he would be back in 15 minutes. He again cautioned her not to look at him. After he left she sat quietly in the car for approximately 15 minutes, fearful that he may be watching her. Then she looked around and saw what appeared to be cars traveling at high rates of speed to her left and behind her. She also attempted to free the car from the mud and when her efforts proved unsuccessful she set out on foot and was soon aided by a passing motorist and his wife to whom she related her experience. The couple transported her to her boy friend's home where she related the happenings of the evening to him.
Her boy friend accompanied her to the police station where the crime was reported and he also went along while she successfully traced the route which the offender had taken, finding her car where it had been abandoned in the mud. Thereafter she was taken to Lutheran General Hospital for a physical examination. While with the police she described her assailant as five feet nine inches in height with a reddish-brown beard, shaggy hair, and wearing a dark jacket and tight tan pants. She also told the police about his motorcycle in front of her apartment building and that she could recognize him on sight and could also identify him by his voice. In court she identified the defendant as the offender.
The State also presented the testimony of the boy friend of the prosecutrix who corroborated her testimony starting with her notifying him of her experience. He further testified that while she was being examined at Lutheran General Hospital he accompanied the police to the area of her apartment building where a search was conducted for the motorcycle to which she had referred.
Vernon Ernest, a neighbor of the prosecutrix, testified that at approximately 10:05 P.M. on the evening in question his curiosity was aroused when he heard a loud motorcycle for the second time within a few minutes. He looked out his window and saw a man, whom he described as approximately five feet ten inches in height and weighing 150 to 160 pounds with bushy hair, park a motorcycle in front of a building and run down the street toward the corner and out of sight. He went outside and, as he walked toward the corner, observed the prosecutrix' car being driven away by a male at a high rate of speed. He had never seen a male drive her car before.
Thinking that the car was being stolen by the man who had alighted from the motorcycle, he made note of that vehicle's license plate number and proceeded to the prosecutrix' apartment, but she did not appear to be at home. He made no report to the police at this time, but two days later when the police called at his apartment he advised them of what he had seen and supplied them with the license number which he had taken from the motorcycle. Finally he testified that he had last seen the vehicle at approximately midnight on the day in question, that it was gone the following morning.
C. Richard Miller, the physician who examined the prosecutrix, testified that his examination of her revealed unclotted blood in the vicinity of the right side of the hymenal ring, which was lacerated, and also a moderate amount of discharge which contained living human spermatozoa. On the basis of his findings it was his opinion that the prosecutrix had experienced sexual intercourse within 24 hours preceding the examination.
• 1 The defendant's first contention, that he was denied his right to counsel at the police station confrontation, must be rejected under the authority of People v. Palmer (1969), 41 Ill.2d 571. There the Supreme Court determined that the right of an accused to assistance of counsel as outlined by the United States Supreme Court in the cases of United States v. Wade (1967), 388 U.S. 218 and Gilbert v. California (1967), 388 U.S. 263 does not extend to a pre-indictment confrontation. The case of Coleman v. Alabama (1970), 399 U.S. 1, relied upon by the defendant to avoid the effect of the Palmer decision, is of no aid to him. There it was held that the preliminary hearing procedures adopted by the State of Alabama constituted a critical stage of the proceedings against an accused and therefore the right to counsel attached at that point. In Palmer, supra, however, our Supreme Court has, in effect, determined that a pre-indictment identification procedure cannot be similarly characterized.
• 2 Our scrutiny of the record convinces us that we need not discuss in detail the question of whether the identification procedures employed in the instant case were unnecessarily suggestive, for the record itself contains substantial evidence to support the conclusion that the in court identification of the defendant by the prosecutrix was of an origin independent of the showup of which defendant complains. (See United States v. Wade (1967), 388 U.S. 218.) Specifically we note the testimony of the prosecutrix with respect to her opportunity to view the offender under favorable conditions prior to her actual abduction and again, under less favorable conditions, during the course of the criminal assault. Further, the prosecutrix testified that she could identify the defendant as her assailant even if she had not viewed him at the police station.
• 3, 4 The defendant's final contention, that the totality of the evidence discredits the accuracy of the identification testimony and is insufficient to satisfy the prosecution's burden of proof, must also be rejected. The minor discrepancy which he points out with respect to her description of height of the assailant given to the police on the night of the crime as opposed to her testimony at trial is rendered even less serious by the testimony of the officer to whom the description was given. He testified that when she described the offender as five feet seven inches tall this figure was given as an approximation rather than an absolute. Moreover, defendant's attempt to add significance to the discrepancy through the assertion that he is six feet one inch tall is emasculated by People's Exhibit Two, a photograph which clearly establishes his height at less than six feet. Neither do we feel that her failure to include in her description of the offender the fact that he was missing a front tooth, as was defendant, fatal either to the otherwise positive nature of her identification or her credibility.
• 5 The evidence presented by the State, standing alone was sufficient to establish his guilt beyond a reasonable doubt. Thus his presentation of an alibi defense, corroborated by his employer, caused the determination of guilt or innocence to be governed primarily by the trial court's determination of the credibility of the witnesses. On the basis of the record before us we cannot say that the resolution of that issue adversely to the defendant is so unreasonable as to require reversal.
BURKE, P.J., and GOLDBERG, J., concur.
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