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 ...