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People v. Canale





APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding. MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

A jury in the circuit court of Cook County found the defendant, Thomas A. Canale, guilty of aggravated kidnapping, deviate sexual assault and rape. The circuit court entered judgment on the verdicts and sentenced him to the penitentiary for a term of not less than 4 nor more than 16 years on the aggravated kidnapping and rape charges, the sentences to run concurrently.

The prosecutrix, age 52, testified that she left her home at 6:20 P.M. on December 22, 1967, and entered her automobile parked on the street in front of her residence intending to drive to her sister-in-law's home. A man, wearing a black leather jacket, entered her automobile on the passenger side, pointed a gun at her, and directed her to drive around various streets until she reached a vacant area near a factory where he told her to park. He removed his trousers, underpants and jacket and forced her to perform oral, anal and vaginal copulation with him. After he had put on his trousers and underpants, he noticed some papers on the seat of the car, asked if they were hers or his, she answered they might be hers, and he threw the papers out of the window. All of the acts to which the prosecutrix testified occurred in the front seat of the car. He told her he would drive the car, would "let her off" and would then leave the car "near the school or on Crawford and Bryn Mawr." He drove to Tripp and Bryn Mawr, let her out of the car, and drove away. It was then shortly after 7:00 P.M. She ran a few blocks to a food mart at Crawford and Bryn Mawr in Chicago where she telephoned her husband and sister-in-law. When her husband and two police officers arrived, they drove to the vacant area to look for the papers that had been thrown out of the car. They found two payroll check stubs and a payroll check dated that day and payable to defendant. The prosecutrix was taken to a hospital, examined, and was taken to her home. At approximately 9:00 P.M. a police officer came to her home and drove her to the police station. She testified that defendant was the man who had raped her and that she had identified him at the police station. Her automobile was found at Kimball and Catalpa. The keys were in the ignition, her purse was in the car and nothing was missing.

Defendant, age 20, testified that he lived with his parents, three younger brothers and a sister. He was employed at a clothing factory and had worked all day on December 22, 1967. That morning he was given his regular weekly pay check and a vacation pay check. He cashed one of the checks in the building where he worked. He put the two check stubs and the remaining check into his left rear pocket. He left work at the usual time, approximately 4:50 P.M., went directly home, arriving there at about 5:40 P.M., and remained there until the police came at 8:30 or 8:45 P.M. At about 6:15 P.M. shortly after the family had finished eating dinner he had noticed that his check and check stubs were missing. Defendant's mother testified that her son had arrived home at approximately 5:40 P.M. and was there until the police arrived.

As grounds for reversal defendant contends that the testimony of the complaining witness in identifying him as her assailant was the product of his illegal arrest and detention and that his constitutional rights to counsel and due process of law were violated. He argues first that the trial court refused to conduct an "identification hearing" and in failing to do so committed reversible error.

The record shows that after the jury had been selected, impaneled and sworn, and before opening statements were made, defense counsel stated: "* * * and before the opening statements, after the jury has been sworn, I would respectfully ask the Court on a motion to suppress to inquire into the fairness of the identification of this particular defendant the facts would reveal that there wasn't any particular line-up, Judge, and this is in connection with the philosophy enunciated in Stovall, Wade and Gilbert." The court told counsel he "ought to file the proper motion." In the ensuing colloquy it appears to have been agreed that the consideration of the question by the court should be held in abeyance "until it comes up during the course of the trial."

In direct examination the prosecutrix testified that when she went to the police station at approximately 9:00 P.M., she walked past the open door to a room in which she saw defendant standing, alone. She said to the officer with her, "That is him." Defense counsel objected stating, "I want to renew my motion again, Judge, that I made outside the presence of the jury as to identification." The court overruled the objection. At the conclusion of her testimony defense counsel moved to suppress the identification testimony and the court denied the motion.

Citing People v. Dennis, 47 Ill.2d 120, the People argue that the motion was "* * * tardy and was never presented to the trial court in a proper written motion * * *." Good trial practice would require that a motion to suppress be in written form, but in the absence of such requirement in the statutes or in our rules we do not hold that a written motion is mandatory. Good trial practice, however, would require that in the absence of a written motion there be an offer of proof from which the trial judge could have determined whether, as contemplated by People v. Dennis, this was an "appropriate case" (47 Ill.2d 120, at 127) for such a hearing. Although here there was neither a written motion nor an offer of proof, the record contains the testimony of the prosecutrix, the police officers and the defendant with respect to what occurred in the police station prior to and at the time the identification was made. No contention is made that, had a hearing been held, other or additional testimony might have been adduced. We have examined the testimony and we hold that assuming, arguendo, that the trial court erred in refusing to hold a hearing, the error was harmless.

Defendant contends that because his arrest and detention were illegal, the prosecutrix's identification testimony was "a product of the unlawful seizure of his person and consequently all testimony relating thereto was improperly admitted into evidence against him," and argues that at the time of his arrest there were no reasonable grounds to believe that he had committed an offense. Further, he argues, his detention was illegal because, until after the impermissibly suggestive identification by the prosecutrix, he was not told the nature of the charge.

The record shows that the prosecutrix told the police she had just been raped, told them where the crime had been committed, and that the man had thrown some papers out of the window of the car. The testimony shows that when she and the police went to the scene, in a vacant area comprising approximately 5 acres, they found two check stubs bearing his name and a check payable to defendant. This evidence shows that at the time of the arrest the police officers knew of reasonable grounds to believe defendant had committed an offense.

Defendant argues that this confrontation with the prosecutrix at the police station, which occurred before he was represented by counsel "was so wanting in fairness as to deprive him of due process of law." The People contend that the confrontation, under the circumstances in which it occurred did not require the presence of counsel and did not violate defendant's right to due process. Although defendant testified that he was standing in the room alone, that the door was closed, and that when the door was opened he saw the prosecutrix standing in the hall with several police officers, the record contains sufficient testimony to support the People's contention that the prosecutrix was being escorted to the office of the watch commander at the police station and that her view of the defendant was coincidental. The record does not support defendant's contention that the police officers intended and planned the confrontation, or that they had suggested to the witness the identity of the defendant.

We have considered defendant's argument based upon Davis v. Mississippi, 394 U.S. 721, 22 L.Ed.2d 676, 89 S.Ct. 1394, and find no basis in the record to support the contention that the arrest here was of the "investigatory" nature which Davis proscribes. The record does not support the arguments based on alleged Wade-Gilbert (United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951) violations and presents no reason for us to reconsider at this time, as defendant urges us to do, our decision in People v. Palmer, 41 Ill.2d 571.

The only attack on the in-court identification of defendant is made in support of the contention that defendant was not proved guilty beyond a reasonable doubt. Defendant argues that "the circumstances surrounding the attack did not afford her a favorable opportunity for a clear and positive identification of the defendant as her assailant." The prosecutrix testified that the place where the man entered her car was well lighted and that the place where the offense was committed was approximately 60 feet from the wall of a factory building on which there were lights. She testified further that she had ample opportunity to see her attacker as she drove to the scene and when he drove her car after the offense was committed. The identification testimony was sufficient to support the judgment.

Defendant contends next that the court erred in admitting into evidence hearsay testimony so prejudicial as to require reversal. The court permitted a police officer, over objection, to testify that "the victim showed us where this attack had taken place" and also permitted him, over objection, to testify that he recognized the People's exhibit comprised of the check stubs and check as the objects "that we found where [the prosecutrix] showed us." This testimony was properly admitted. Stevens v. People, 158 Ill. 111.

The officer was also permitted to testify, over objection, that at the police station he told the prosecutrix "that we had arrested a suspect * * * and that I would like her to view this subject and either identify him in my presence and in his presence." The following ensued:

"Q. And what, if anything, did she say to you?

A. She said she had observed — when she came into the station she had already seen the man that had attacked her.

MR. BRODY: Judge, let there be an objection and let there be a motion for a mistrial, so that the record will ...

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