APPEAL from the Circuit Court of Champaign County; the Hon.
FREDERICK S. GREEN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendant was charged in an indictment with one count of rape and one count of burglary. He was tried and found guilty, in a bench trial, on both charges. The trial court entered judgment on its verdict and sentenced defendant to an indeterminate term of 5 to 15 years. Defendant appeals.
Defendant urges the following on appeal. He was not proven guilty beyond a reasonable doubt; the trial court erred in refusing to grant his request for a new trial based upon purported newly-discovered evidence; and, finally, that the trial court erred in entering judgment on both the rape and burglary verdicts.
At trial, the complaining witness, Mrs. Gail Hunter, testified that on the evening of September 2, 1971, she was alone in her basement apartment in Champaign, Illinois. She sat down around 7 P.M. to read and about 20 minutes later she thought she saw someone looking at her through the living room window. An hour later, she again believed she saw someone looking at her and at that time she got up from her chair and observed a figure running away from the window.
She went into her bedroom, and put on her nightgown, and then laid on her bed and began to read. She fell asleep and slept for an hour to an hour and a half when she was awakened by noises coming from outside the bedroom. Immediately after awakening, she saw a man standing in the entrance of her bedroom, 8 to 10 feet away. She stated that the bedroom and living room lights illuminated the man and she observed the man's face for approximately 8 seconds. She described him as being 5'6" to 5'8", weighing around 140-150 lbs., wearing Levi bluejeans and a faded blue T-shirt with white short sleeves or a tie-dyed T-shirt. He was a small-boned man around 23 years old with dark hair, square jaw and sharp features. He was unshaven. She stated that at that time she was not wearing her glasses.
She began to scream as the man came towards her and lunged onto the bed. He turned her over on her back, and he hit her on the face. He held her down and removed her panties and began to rape her. She kept her hands over her face during the attack except for a few seconds when she observed the man close up. He had a nylon stocking over his face but it did not distort his features. At close range she noted that his eyes were dark and that his breath smelled of stale liquor.
After the attacker had completed the rape, he left the room. Mrs. Hunter called the police. The time was around 9:51 P.M. At this juncture of her testimony, Mrs. Hunter identified the defendant as being her assailant. She continued to testify that she was then taken to the hospital by the authorities and examined by a physician.
The day following the incident Mrs. Hunter went to the Champaign Police Department and was shown a book of mug shots containing some 300-350 photos. On September 11, 1971, Mrs. Hunter again observed 7 or 8 additional photographs. On both occasions she positively identified the defendant.
Mrs. Hunter testified that she is a licensed practical nurse, and that while making rounds in the maternity ward in Mercy Hospital on November 28, 1971, she saw defendant sitting in the fathers' lounge. She stated that she eventually entered the room of defendant's wife and recognized the defendant as her attacker. She went to the nurse at the station to call her husband who in turn notified the authorities. This occurred around 10:30 A.M. Defendant was apprehended at 1:40 P.M. Mrs. Hunter subsequently picked defendant out of a six-man lineup. She testified that upon seeing defendant's face she fainted, and upon being revived she stated that defendant was the individual who had raped her.
The State called Dr. Lewis Trupin. He testified that upon examining Mrs. Hunter the night of the incident, he noticed an abrasion to her right temple and that there was evidence of a forcible entry into the vaginal area. He stated that a smear indicated the presence of spermatozoa. He further testified that Mrs. Hunter was extremely upset and overwrought. He prescribed a tranquilizer.
Officer William Jobe testified that he went to Mrs. Hunter's apartment on the night in question and noticed that she was extremely upset and apparently had been struck on the right temple. Upon investigation, he found that the rear entrance to the apartment had been forcibly opened; however, no physical evidence or fingerprints were found linking the defendant directly to the scene.
Detective Sergeant William Bates was called to testify by the State. He corroborated the fact that on September 3, 1971, Mrs. Hunter tentatively identified defendant's photo. Furthermore, Bates testified that on September 11, 1971, he brought over additional photos for her to identify. He stated that Mrs. Hunter identified defendant's picture, saying that it was the man that had raped her.
Detective Donald Evans testified that on November 28, 1971, he had an occasion to go to Mercy Hospital located in Urbana, Illinois. He stated that upon arriving at Mercy Hospital he had a conversation with Mrs. Hunter concerning the suspect who fit the description of her assailant. Evans testified that after he talked with Mrs. Hunter, he left the hospital and returned at approximately 1:40 P.M. with Sgt. Douglas. At around 2 P.M., Evans approached defendant and placed him under arrest for rape. Evans stated that defendant replied, "I could not have done it. I can prove where I was at." Evans said that he told defendant that he did not know how he could prove where he was at because he had not yet told him what the date was. Thereafter, he was taken to the station where he appeared in the six-man lineup and was identified by Mrs. Hunter.
Defendant advanced an alibi defense. He testified that he had been working on September 2, 1971, on a construction site on North Madison Avenue in Champaign. His regular work uniform was dark blue pants and a light blue shirt imprinted with the defendant's employer's name. He ...