APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
The defendant, Lloyd McMorris, was charged by indictment with two counts of burglary with intent to commit theft, two counts of burglary with intent to commit rape, and a single count of rape. Following a bench trial, defendant was found guilty of both counts of burglary with intent to commit theft, but was found not guilty of all other charges. He was sentenced to serve concurrent sentences of not less than ten years nor more than twenty years in the Illinois State Penitentiary. Defendant appeals this conviction, contending that:
(1) The identification of defendant by the complaining witness was based on a suggestive lineup;
(2) The evidence was insufficient to prove the defendant guilty of burglary with intent to commit theft beyond a reasonable doubt; and
(3) The sentenced imposed by the trial court was excessive and should be reduced.
The facts are as follows:
Linda Elliot testified at the trial that she was asleep in the bedroom of her first floor apartment at 2941 South Michigan, in Chicago, on August 10, 1971, when she was awakened by a man on the bed. The man attempted to have intercourse with her and told her he had come for "sex". She stated that after the unsuccessful attempt the man then put a pillow over her head and told her not to move or she would be "hurt". He ransacked the apartment and left, taking with him $17.00, a wristwatch, a television set, a portable stereo, and several other items. Mrs. Elliot then called the police. Though Mrs. Elliot was unable to see the man's face clearly, she gave the police a general description including height and weight, the man's haircut (a "short Afro"), the clothes he was wearing, including a "metallic object" near the waist, and a description of his "distinctive" voice.
Mrs. Elliot further testified that during the evening of August 25, 1971, she was awakened by the same man who had entered her apartment on August 10, 1971. This time the man succeeded in having intercourse with Mrs. Elliot. Following the attack the man dressed and handed Mrs. Elliot her purse, instructing her to give him $8.00. He left and she phoned the police.
Mrs. Elliot said she was taken to the hospital by the police and following this she went to the police station to view a lineup. At the lineup each participant was asked to repeat the phrases that Mrs. Elliot's attacker had used. The first time the men spoke Mrs. Elliot was about 15 feet away and she was not able to identify any of the voices. At a distance of a few feet she identified, by voice, Lloyd McMorris as the man who had entered her apartment on August 10 and August 25. After she identified defendant, one of the officers present pointed out the belt buckle on defendant's coat and asked if it could be the metallic object she saw near the attacker's waist. She replied that it could have been. After she viewed the lineup, Mrs. Elliot identified a watch and some of the currency recovered from defendant as taken from her apartment during the occurrences of August 10 and August 25, 1971.
Larry Ledo also testified as a witness for the State. He stated that on August 25, 1971, he was employed as a guard at the South Commons Housing Project. In the early morning hours of that date he was near 2941 South Michigan on his patrol scooter. He said that he observed a man running through the parking lot and gave chase on his patrol scooter. The man stopped and Mr. Ledo spoke with him. This man was identified by Mr. Ledo as the defendant. After this, he resumed his patrol until he noticed a police car parked in front of 2941 South Michigan and went to speak with the officers. He next saw defendant later that day in police custody.
• 1 Defendant first argues that the lineup following his arrest was unduly suggestive and that Mrs. Elliot's identification should have been suppressed as a result. He contends that the lineup was suggestive since Mrs. Elliot was told that a suspect was in custody prior to viewing the lineup and that he was the only participant in the lineup wearing a jacket with a large bright metallic buckle. It is well established that in determining whether identification procedures were so unnecessarily suggestive as to warrant suppression, that procedure must be considered in light of the totality of the facts and circumstances surrounding that particular confrontation between the witness and defendant. (Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. (1967); People v. Fox, 48 Ill.2d 239, 269 N.E.2d 720; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.) Considering the totality of facts and circumstances surrounding the lineup confrontation in the instant case, we are of the opinion that the trial court did not err in denying defendant's motion to suppress.
• 2 While defendant was in fact the only participant in the lineup to be wearing a jacket with a metallic buckle, it stands uncontroverted in the record that Mrs. Elliot did not identify defendant because of his clothing, but rather by his voice. At the trial, on direct examination, Mrs. Elliot stated she did not notice the belt buckle until after she had identified defendant as her assailant by his voice. When an officer brought the belt buckle to her attention after this, she stated that could have been the object she saw in her apartment. On cross-examination Mrs. Elliot stated again that she was "not aware" of the belt buckle prior to the time she identified the defendant. Defendant's counsel made repeated inquiries regarding the time when Mrs. Elliot first noticed the belt buckle, to which she replied:
"It was not until after I had told Detective Kennedy that the second man in the lineup [defendant] was the assailant that he asked me whether the belt buckle on the coat might be the object that I had described. And when he asked me that, I said, it could be. I had already identified him."
The defendant's clothing (which was the same clothing he wore when arrested) was not then a factor in his identification by the complaining witness and the lineup was not unduly suggestive as a result. (See People v. Shaw, 6 Ill. App.3d 366, 286 N.E.2d 3.) In addition, the statement by the police to Mrs. Elliot that they had a suspect in custody would also not render this particular confrontation unnecessarily suggestive. This court, in People v. Del ...