APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant was found guilty of burglary, armed robbery, and rape in violation of section 19-1, 18-2 and 11-1(a) of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, pars. 19-1, 18-2 and 11-1(a).) He was sentenced to concurrent terms of 25 to 75 years on the rape and armed robbery and 5 to 15 years on the burglary plus 5 years' parole on all sentences. On appeal he contends: (1) the trial court erred in denying his motion to suppress certain physical evidence; (2) the court erred in admitting certain hearsay evidence; (3) his due process rights were violated by the State's assertion that stains on his clothes were paint from the window of the complaining witness' apartment; (4) the suggestive line-up procedure violated his due process rights; (5) he was not proven guilty beyond a reasonable doubt; (6) he could not be found guilty of all three charges since they arose out of the same facts; and (7) the sentences imposed were excessive.
The following evidence was adduced on defendant's pretrial motions to suppress certain physical evidence and to suppress the line-up identification.
He is a Chicago police officer. At 2:45 A.M. on August 2, 1972, he and his partner, Officer Daniel Zelago, proceeded to 4929 W. Washington in Chicago to investigate the report of a rape and robbery. They met Bernice Davis and John Patterson at the scene.
Patterson told them that as he was sleeping in the back bedroom of Davis' first-floor apartment, a male Negro about 18 years old, 5'7" tall, weighing 140 to 150 pounds and wearing a dark shirt and light-colored pants had climbed through the window. The intruder told him: "Don't make any sound, I got a partner who is in another room" and then left the bedroom. The window had been freshly painted and smudge marks could be seen in the paint.
Bernice Davis told them that after she awoke, her assailant hit her. He was 18 years old, weighed about 140 pounds, and was wearing dark upper clothing and light-colored pants. He put a sharp object at her neck and said: "Don't make a sound, somebody else is in the other room with the gentleman, and somebody will end up getting hurt." He then forced her to have sexual intercourse with him. Before leaving the apartment, he took two purses.
Tortorice and Zelago then spoke to Dolores Graham, the victim's neighbor. She told them that she had seen a male Negro with a dark shirt and light-colored pants come out of Bernice Davis' front door and enter a building down the street.
They immediately went to the building at 4911 W. Washington, and inquired at the first-floor apartment and then at the second-floor apartment regarding whether anyone there fit the assailant's description. They were directed to the basement apartment.
When they knocked on the door of that apartment a man answered. They asked if any 18-year-old boys were there. Another man who identified himself as Mr. Johnson came to the door. When Johnson told them that one boy was sleeping on the couch, they asked to see him. The room was dark and they went to the couch to see the boy. As they shined their light around the room, in addition to the boy on the couch, they saw defendant sitting in a chair. He was fully clothed and had white paint on his pants leg and on his hands and arm. Tortorice recognized defendant as the person they had stopped at about 1 A.M. that morning in the 5000 block of Washington. They had completed a "field contact card" at that time which listed 4911 Washington as defendant's address.
The officer asked defendant where he had been earlier in the evening. Johnson, who had identified himself as defendant's father, said that defendant had been home all evening. However, upon being told that the officers had stopped defendant earlier that evening, Johnson admitted that defendant could have left while he was asleep.
Tortorice then told the father that they would have to place the defendant under arrest for suspicion of rape, and as he and his partner moved toward the defendant, defendant reached "by the cushion." His partner grabbed him and recovered a can opener from under the front part of the cushion. Tortorice asked Johnson if they could look around the apartment. Johnson said: "Sure, we got nothing to hide, go right ahead." He searched the apartment and found two purses in the bathroom. One contained Bernice Davis' identification cards.
Police Officer Daniel Zelago
In addition to the testimony corroborated by Tortorice, Zelago testified that while they were talking to the defendant, the father came out and asked what was going on. Zelago saw the young man get up and bend down. Right next to his chair was the couch. Zelago went there and put his hand where the defendant's was and ...