APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
A jury found Michael Rosenborgh guilty of armed robbery, aggravated kidnapping, and attempt (rape) in violation of sections 18-2, 10-2(a) (3) and 8-4 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 18-2, 10-2(a)(3) and 8-4); John Smith guilty of armed robbery, aggravated kidnapping, and rape in violation of sections 18-2, 10-2(a) (3), and 11-1(a) of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 18-2, 10-2(a)(3) and 11-1(a)); and Jerome Smith guilty of armed robbery and aggravated kidnapping in violation of sections 18-2 and 10-2(a) (3) of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, pars. 18-2 and 10-2(a)(3).) Two co-defendants, Terry Davis and Matthew Jordan, were acquitted. Jerome Smith and Rosenborgh were sentenced to concurrent terms of two to eight years and John Smith to concurrent terms of twenty to forty years.
From these convictions all three appeal contending that: (1) they were not proved guilty beyond a reasonable doubt, (2) the State's use of various identification procedures violated due process of law, (3) the trial court erred in not allowing them to call either the complainants or other arresting officers at the hearing on the motions to suppress, and (4) they did not receive a fair trial.
At a hearing on pretrial motions to suppress evidence and identifications, the following pertinent evidence was adduced.
Police Officer Robert Frodin
On the evening of August 11, 1969, he briefly spoke to the complainants at St. Francis Hospital and was given a description and license number of a car. John Smith was arrested by Midlothian Police as a result of this information. Later at about 1:30 A.M. at the Blue Island Police Station, Smith stated that he had loaned his car to the other defendants earlier in the evening. While John was sitting in a chair being questioned, Diane Wilmot and Mona Sullivan both entered the station and saw him. Later Mona saw John again and stated that he had attacked her. At about 2:00 A.M. John accompanied several police officers when they arrested the other defendants. On their arrival at the station Frodin conducted a line-up of six people, including all five defendants, which was viewed by the four complainants. He instructed the complainants to mark on their line-up tally sheets only the numbers of those they could positively identify. Mona Sullivan and Arthur Steelman identified John Smith, Jerome Smith, Davis and Rosenborgh. Mona placed a question mark after Rosenborgh's number. Diane Wilmot identified Jerome Smith and Jordan. Donald Carlisle identified Jerome Smith and Rosenborgh. Frodin also testified that the defendants participated in another line-up (relating to other crimes) but the complainants were not present.
He was arrested by Midlothian Police as he got out of a car at an all-night gas station. He knew nothing about the car and had received it only a few minutes before. He was taken to the Blue Island Police Station where he alone was shown to some of his accusers, but they were unable to identify him. He did not see Mona Sullivan at the police station or at any time on the night of the occurrence. He was with the police when they went to arrest the other defendants, but he denied telling the police anything. He and the other defendants participated in seven line-ups, all of which were observed by the complainants. During the course of the evening, he was threatened and beaten. He testified he has a weak memory and only a kindergarten education.
During his testimony, a dispute arose when Mona Sullivan and Diane Wilmot entered the courtroom after a motion to exclude witnesses had been granted. The court was certain that they had exited immediately upon realizing their error. At the conclusion of his testimony, John Smith's counsel made requests to call the complainants and the other arresting officers. The court, after observing that John's entire testimony was not credible, denied these requests and a motion to suppress.
She is Michael Rosenborgh's mother. Sometime after midnight on the morning of August 12, 1969, three police cars arrived at her home. Two police officers, one white and one black, came to the door and arrested her son. She accompanied them. After arresting the three other defendants, they all went to the Blue Island Police Station. She observed only one line-up. She heard one of the officers say to the complainants: "I thought you said it was four boys and we have six boys here."
Defendant Michael Rosenborgh
Three police officers, none of whom were black, arrested him. John Smith was with the officers. He participated in four or five line-ups and his mother was present for at least three of them. Different people viewed the line-ups.
He was arrested at his home in the early morning hours of August 12, 1969, by six police officers, including Officer Frodin. John Smith was with the officer. He participated in four or five line-ups. One of the police officers told the witnesses that they had to identify someone. He saw Mrs. Rosenborgh during the first line-up.
He was arrested at his home by five police officers. John Smith was with them. He participated in four or five line-ups and different people were in the last few line-ups. He did not see Mrs. Rosenborgh at the station that night.
He was arrested at home. Everyone in his family, except his brother John, was there. At the station, he participated in six line-ups. Different people observed each line-up. He saw Mrs. Rosenborgh at the first line-up.
The trial court then denied Rosenborgh's, Jerome Smith's, Davis's and Jordan's request to call the complainants as witnesses, their motions to suppress, and their motions to be severed from the trial of John Smith and ordered the trial to proceed.
During voir dire examination of the jury, a female juror was asked whether she had ever been the victim of any crimes. She said she had been the victim of a robbery over twenty years ago. No challenge was made and she was sworn in as a member of the jury. After the trial had begun, she requested to speak to the judge. She told him that she had been raped in connection with the robbery but had been too embarrassed to tell the court. She assured the court that she had not told any of the jurors about the incident. She was not asked exactly what she had said or to whom she had said it. The court excused her from further service with the jury, denied defendants' motions for mistrial, and proceeded with the trial using an alternate juror.
At trial the following witnesses testified for the State:
Sometime after 10:00 P.M. on August 11, 1969, she was sitting with Donald Carlisle in the front seat of Carlisle's car in Calumet Park Grove and Diane Wilmot and Arthur Steelman were in the back seat. A car of Negro youths parked nearby. Two of them came over and asked for cigarettes. They produced weapons, ordered Carlisle to get in the right rear seat, and commandeered the car. Michael Rosenborgh drove ...