APPEAL from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. CHARLES I. BEN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant, Bobby Mack Brown, was indicted in the circuit court of Peoria County for the crimes of rape and indecent liberties with a child. He was found guilty of both charges after a trial by jury, and was sentenced to the Illinois State Penitentiary for not less than seven nor more than eleven years. The appellate court affirmed the conviction (People v. Brown, 131 Ill. App.2d 669, 267 N.E.2d 142), and we granted the defendant's petition for leave to appeal.
The defendant, 19 years of age, claims in this appeal that he was deprived of his right to counsel in preindictment confrontations by "lineup" and photographic identification; that his identification by photograph while in custody was improper; that the court erred in denying the defendant's pretrial discovery motion; that the court erred in refusing to direct a verdict of not guilty on the indecent liberties charge; and that the State failed to prove him guilty beyond a reasonable doubt.
The prosecutrix, a 12-year-old girl, was a 6th grade student. She testified that after school on March 4, 1969, she was to meet her mother to look at a house which her mother intended to rent; that when she arrived at the house no one was there and she waited on the porch; that shortly thereafter, a man, who was later identified by her during the trial as the defendant, came from the back of the house, entered through the front door and invited her into the house where it was warm; that she refused at first, then accepted and entered the kitchen; that the defendant then asked her: "Are you going to give me something?" and when she answered "No, my mother doesn't allow that," he picked up a saw and threatened to cut her head off with it; that she then said "all right," and at his direction, went into the bedroom, sat on the bed and he pushed her down; that on his orders she pulled up her shirt and pulled down her panties to her knees, but when he said "I'm gonna have to come down," she said "No," and began resisting; that he then went to the kitchen and returned with the saw and she then consented and submitted to an act of intercourse; that she felt pain, finally wriggled loose, and ran home and told her mother and father that she had been raped; that her parents and brother returned with her to the scene of the offense, found no one there and called the police; and that when they arrived, she gave them a description of her assailant, and was then taken to the hospital.
A medical examination of the prosecutrix indicated that intercourse had occurred, and that blood was flowing from the vagina due to a tear in the hymen. A vaginal smear indicated the presence of male sperm.
The defendant, who had been residing in the house in question for about two months on a repair-rent basis, was arrested about 24 hours later and advised of his rights. While he was in custody, two police officers showed photographs of six different individuals to the prosecutrix, including one of the defendant. She identified the defendant from the photographs as the man who raped her. Contrary to good police procedures, the pictures were returned to the police files without any record being kept of the identity of the other five persons whose photographs had been submitted to her.
Subsequently, either that day or the following day, both the prosecutrix and her mother were taken to the police station where the prosecutrix viewed four persons in a lineup through a window, which permitted her to see them but did not permit them to see her. All four were dressed alike and each one walked alone before the window. The prosecutrix again identified the defendant as the man who raped her. At this time the defendant did not have an attorney.
However, shortly prior to the lineup, the defendant had been advised by a police officer that he was suspected of the rape of a young girl; that they wanted him to appear in a lineup; and that he had the right to have an attorney. Nevertheless, he signed a waiver of counsel. The record indicates that the defendant knowingly and understandingly waived his right to counsel at the lineup.
The right to counsel at a lineup can be waived after the accused has been advised of his rights. (United States v. Wade (1967), 388 U.S. 218, 237, 18 L.Ed.2d 1149, 1163, 87 S.Ct. 1926; Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951.) Unless the record shows coercion, actual misapprehension, or misrepresentation by a person in authority, the mere fact that the defendant is a minor does not preclude him from waiving his rights. (People v. Harden (1967), 38 Ill.2d 559, 562; People v. Wakeland (1958), 15 Ill.2d 265, 269, 270.) We find, therefore, that he was not deprived of his right to counsel, either by virtue of his minority or by the showing of coercion, actual misapprehension, or by misrepresentation by the police officers.
Although the evidence is in conflict on the issue of whether the defendant had signed the waiver of the right to counsel when the photographs were shown to the prosecutrix, the right to counsel at such identification procedures, when the defendant himself is not present, has been rejected by this court. (People v. Holiday (1970), 47 Ill.2d 300, 307.) Also, the defendant failed to raise the question in the trial court, and, consequently, it need not be considered here. People v. Hanna (1969), 42 Ill.2d 323, 324.
The defendant next contends that the pretrial procedures used to identify him by lineup and photograph were so suggestive and conducive to mistaken identification as to deprive him of due process of law. Particularly, he asserts that it was error for the police to show photographs of him to the prosecutrix while he was in custody. In this respect, he relies upon a statement in Eye-witness Identification in Criminal Cases (1965) by Patrick Wall, at page 71: "Where the suspect is known and in custody, however, the showing of photographs to the witnesses is usually improper, even when the procedure used in showing them is a fair one." However, we do not regard this statement as authoritative on this point. The practice of showing photographs of suspects to witnesses is essential to effective law enforcement. The dangers inherent in the practice have been recognized by the United States Supreme Court, but nevertheless, initial identification by photograph has its approval. The Court has held that each case must be considered on its own facts, and that convictions based on in-court identifications 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. Simmons v. United States (1968), 390 U.S. 377, 382-385, 19 L.Ed.2d 1247, 88 S.Ct. 967.
While we acknowledge that each instance of pretrial photographic identification should be examined to determine whether unreasonably suggestive procedures were used, we are not ready to hold that such identification procedure can never be used when the defendant is in custody. Circumstances may necessitate such procedure, and to prohibit it may very well hamper effective law enforcement.
In this case, at the hearing on a motion to suppress the identification evidence, the police officers testified that they showed the prosecutrix photographs of six different subjects including the defendant. The record does not reflect that the police officers in any way directed her attention to the defendant's photograph or in any way suggested that he was the one who attacked her. A review of the record indicates that nothing improper or suggestive was done; and that she viewed the photographs one at a time and identified the defendant from among them as her attacker. The police officers were cross-examined extensively at the trial relative to the photographic identification and such examination failed to expose any potential for error in the photographic identification procedures.
The prosecutrix had ample opportunity to view the defendant and to have his facial characteristics and dress impressed upon her mind, so that she could positively identify him. We hold that even though the defendant was in custody, the procedure used to identify him by photograph was not so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable ...