APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
In a jury trial defendant was convicted of the offense of rape and sentenced to a term of five to 15 years.
On appeal defendant contends that (1) the trial judge "impermissibly invaded the province of the jury" by refusing its request, during its deliberations, for certain testimony and exhibits; (2) he was denied his right to be present at every stage of the proceedings; (3) it was error to allow the testimony of an officer as to the contents of a lab report which he did not prepare; (4) defendant was denied a fair trial because of repeated instances of hearsay testimony; and (5) the identification testimony should have been suppressed as the product of impermissibly suggestive procedures.
The testimony of the State's witnesses at trial was as follows: On February 1, 1967, at about 5:30 A.M., the complaining witness, Mrs. Connie Smith, was walking on Fifth Avenue near Pulaski Avenue in Chicago on her way to work. As she was walking a man came up behind her, threatened her with a knife, threw a coat over her head, dragged her to the rear of an apartment building and raped her. The rape occurred at approximately 5:30 or 5:45 A.M. During the assault the coat came off of her head on three occasions. She was able to see the attacker twice when the coat came off, for a total of about two minutes. At the time of the assault it was still dark outside, the sun was just beginning to rise and the street lights were on. In the back of the apartment building, where the rape took place, a light on the apartment building illuminated the scene. She described her assailant as about 25 years old, 140 to 150 pounds and wearing a green bulky knit sweater.
After the assault, the complaining witness returned to her home and told her husband what had happened. Her son called the police. The police took her to the hospital. She returned home a short time later.
At about 5:30 or 5:40 A.M., the officers who eventually arrested defendant for the rape, were flagged down by a motorist who told them that he had seen a man struggling with a woman for her purse, Pulaski and Fifth Avenue. (Fifth Avenue is 600 south at Pulaski.) As the officers headed for that location they found defendant walking on the 1000 block of South Pulaski. He told the officers that he was coming from Pulaski and Fifth Avenue and had been in a restaurant for the last three hours. The defendant accompanied the officers to the restaurant to check his story. The proprietor of the restaurant told the officers that defendant had in fact been in the restaurant for three hours but had left about 5:00 A.M., 45 minutes earlier than defendant had claimed. Defendant said he had "just been walking" in the interim. No purse snatching victim had yet registered a complaint, so the officers released defendant after taking his name and address.
Later, at about 6:45 A.M., the police dispatch reported a rape which took place in the same area and at about the same time as the citizen reported seeing a man struggling with a woman. The broadcast gave a description of the assailant. The officers decided that defendant "fit" the description. They drove to his home and then to his place of employment but were unable to find him. They went back to his home and this time were successful. One of the officers testified that the arrest occurred at approximately 7:00 A.M. Defendant was dressed in the same clothes as when he was first stopped. He was wearing a bulky knit green sweater.
The defendant was brought to the district police station. Later in the morning the police told the complaining witness that they had "picked up a man that fit the description" she had given. Some time "before noon" the two arresting officers brought defendant to her home. One officer went to her front door. The other officer remained standing by the squad car, along with the defendant. When Mrs. Smith saw defendant, she said, "That's the man."
Defendant did not offer any evidence in his behalf.
After the jury had retired, a bailiff and a deputy sheriff heard the jury buzz. Since they had told the jury to buzz four times when it had reached a verdict, the deputy sheriff and bailiff decided to do nothing. Then they heard someone knock on the door. They asked if someone had knocked, and a member of the jury replied: "Yes, we want to ask a question." The deputy sheriff replied: "Just a minute" and immediately notified the trial judge. The attorneys were called and the above sequence was related to them on the record. The court, defense counsel and the State's Attorney discussed possible courses of action. Over the objection of defense counsel it was decided to submit a blank pad of paper and a pen to the jury. Defense counsel objected to any response to the jury's inquiry, arguing that if a question were in fact submitted by the jury, a subsequent refusal to answer the question (i.e., silence) might be taken by the jury as a substantive answer in and of itself.
The pad and pen were submitted to the jury, and the person who gave them the pad and pen instructed the jury simply to write the question on the pad and then hand it back.
The pad was returned with two questions written on it and signed by a member of the jury. The first question was: "Can we have the two defense exhibits entered as evidence in the jury room or read aloud to us?" The second question was: "If a question arises about oral evidence may we have it read to us?"
The pad was returned with the following answer written directly beneath the questions: "The jury has everything it is allowed to have. Judge Robert J. Downing." In discussing the wording of the reply, defense ...