APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 27, 1972.
The defendant, Denis G. Clarke, was found guilty of the consolidated charges of burglary with intent to commit a theft, and rape, following a bench trial in the criminal court of Cook County. He was sentenced to concurrent penitentiary terms of 3 to 6 years for burglary, and 12 to 15 years for rape.
In this appeal, he contends that even though a motion to suppress the pretrial "lineup" identification evidence was granted, the court's decision was nevertheless tainted by the testimony at the hearing on the motion, and thereby his constitutional rights were violated. He further asserts that the evidence was insufficient to establish beyond a reasonable doubt that he was guilty of forcible rape. Finally, he urges that his alibi, when coupled with the weakness of the identification by the prosecuting witnesses, established a reasonable doubt as to his guilt.
The prosecutrix lived alone in a three-room apartment in Chicago. She was awakened in the early morning hours of January 16, 1969, when an individual, later identified as the defendant, came into her bedroom. She watched him for a few minutes as he picked up objects from her bureau and dresser. He then flashed a light in her eyes, and she screamed. He told her to stop screaming or he would kill her. She asked him what he wanted and he replied that he was out of gas and needed money to get to Skokie. When she said her money was in the living room, he ordered her to roll over on her side and to cross her hands behind her back. He then tied her hands, put a pillow over her head and left the room again. On his return, he made her lie on her back, partially disrobed her, got on top of her, and caused his penis to penetrate her vagina for a few minutes. He then got up, again left the room, and returned in a few moments to resume sexual intercourse with her. At this point, the prosecutrix, who still had the pillow over her head, said that she couldn't breathe, and the intruder grabbed her by the shoulders and moved her almost to a sitting position, causing the pillow to fall from her face. At this time, the assailant was still in the process of having intercourse with her and his face was only inches from hers. He again left the room and returned to engage in a further act of intercourse. All during this period, he was talking about his prowess as a "great lover." Before the final act of intercourse, he pulled down the window shades which had been partially raised. It was then beginning to get light outside. There was also some illumination in the bedroom from a light in the living room. Before leaving, the intruder said he could not find his gloves, and would not leave until he did so. He took $10 from her purse and finally left, going out the front door.
The prosecutrix spent three or four minutes untying her hands and then went to an upstairs apartment occupied by two girl friends, to whom she related what had happened. The police were then called. The prosecutrix also told the police of the rape, burglary and theft, and described her assailant to the police as a Negro, about 5' 10" tall, medium build, who weighed about 180 pounds and was well-dressed, wearing a tie, a dark three-quarter length coat, and hat. She also noted that he spoke articulately, and with an accent not common to Negroes with whom she dealt in the Chicago area. She described his face as thin, with a receding hair-line, and with wrinkles or indentations on the cheeks. She said his skin was brown rather than black.
The prosecutrix was taken to St. Francis Hospital for examination. On the following day, the police brought three Negro men for her to view. She identified the defendant as her assailant in a small conference room. Each was asked to say, "My car is out of gas and I need money to get to Skokie." The officer conducting the lineup said nothing to the prosecutrix in regard to the identity of the three men.
At the trial, one of the girl friends, to whom the prosecutrix went after the attack, testified that she observed "bind" marks on the wrists of the prosecutrix, and verified that a description of the attacker was given to the police. The police officer, who answered the call, testified that the prosecutrix told him she had been robbed and raped, and then repeated the description given to him.
The officers who arrested the defendant testified that they first observed him, the day following the offense, in a restaurant where they were having a cup of coffee prior to going on duty; and that the restaurant was near the scene of the crime. The officers further testified that he fit the description given to them by the prosecuting witness; that they followed him after he left the restaurant and after trying for several blocks to overtake him, they lost him; that they then pursued him on foot and finally stopped him as he came out of an alley; that he was searched, found to be without weapons, and advised of his rights; that he declared, "I'm innocent"; and that he was dressed in a suit, tie, hat, and three-quarter length coat.
The defendant denied that he had committed the offenses. He stated that he left his home on the night in question about 10:30 P.M. to meet a friend in a tavern, but the friend did not appear; that at 2:00 A.M., the defendant and another man left the tavern to take a third man home because he was ill; that the defendant returned to the tavern for awhile, and then left for a coffee shop; and that he was arrested shortly thereafter. Several alibi witnesses testified to the defendant's presence at the tavern and that he left there about 4:00 A.M. Other witnesses testified as to his character.
On cross-examination the defendant stated that he was born in the West Indies, and that he had been a police officer there. A defense witness, who was an expert in dialectology, testified that the defendant spoke like a West Indian.
The main thrust of the defendant's argument relates to the lineup identification of the defendant. The defense counsel moved to suppress the identification testimony, and the motion was considered by the court as part of the trial on the merits. There is a conflict in the testimony on the question of whether the defendant was advised of his right to counsel in a lineup, and if so advised, whether it was prior or subsequent to the lineup itself. However, this is immaterial since the court ruled that the lineup testimony should be suppressed because counsel for the defendant was not present at the lineup confrontation. It is the defendant's argument that hearing the testimony of the lineup identification irrevocably tainted the court's judgment so that the order suppressing the testimony could have no real effect as it would in a jury trial.
It is a well established rule, however, that when the trial judge is the trier of facts every presumption will be accorded that he considered only admissible evidence and disregarded inadmissible evidence in reaching his conclusion. (People v. Wallenberg, 24 Ill.2d 350, 354.) It cannot be presumed, therefore, that the trial judge considered the evidence of the lineup identification in reaching his judgment of guilty. Moreover, there was eyewitness courtroom identification testimony by the prosecutrix based on observations other than the lineup, upon which the trial judge could properly base his decision.
The defendant also contends that the proof of force used in the attack was insufficient to establish beyond a reasonable doubt that the prosecutrix was raped against her will. He asserts that no evidence was introduced that the assailant was armed with a dangerous weapon, or overpowered the prosecutrix by brute ...