APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
J. KAPLAN, Judge, presiding.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Willie Jenkins was found guilty after a bench trial of the crimes of rape and armed robbery. (Ill. Rev. Stat. 1973, ch. 38, pars. 11-1 and 18-2.) He was sentenced to a term of 6 to 18 years on each charge, the sentences to run concurrently. On March 31, 1975, upon agreement of the parties, this court reversed defendant's conviction for armed robbery. We now consider the defendant's appeal relating to the rape conviction. Defendant contends: (1) that the testimony relating to the identification of the defendant was improperly admitted into evidence because the identification was obtained during a period of detention subsequent to an unlawful arrest made without probable cause and for investigatory purposes; (2) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; and (3) that the trial judge in finding him guilty used a standard other than reasonable doubt.
At trial the prosecution called three witnesses, the complainant, the arresting officer, and the police officer, who conducted the lineup the defendant was placed in. The complainant testified that on May 24, 1973, at 9:20 p.m. she was standing on the corner of 18th and State Street in Chicago, Illinois, waiting for a bus. Two men, one of whom she later identified as the defendant, crossed the street and came up behind her, both grabbing her shoulder. The defendant, she testified, told her to "Shut up" while the other man placed a knife to her cheek. After she protested to be left alone they threatened to kill her. The two men then marched her across the street and down an alley to an apartment building where the complainant was forced to walk up to a third-floor porch landing.
There was a light bulb shining on the porch and also lights shining in the alley. The defendant, she testified, told her to have intercourse with him or he would kill her. The defendant then proceeded to have intercourse with the complainant three times and fellatio once. While this was taking place the other man stood by with the knife. At one point the defendant asked the complainant how much money she had, and she replied that she had $7. The defendant then asked for a "square" and the other man brought the defendant a cigarette.
After the defendant had intercourse with her for the final time, the other man said something to the defendant and the two men ran up to the fourth floor of the building and knocked on a door and shouted, "Hey, open the door." The complainant then ran down stairs and reported the incident to the police.
The complainant testified that while she was on the third-floor porch she looked at the defendant's face and stated that the defendant "stayed in my face all the while he was raping me." She testified that the defendant was wearing dark, brownish clothes and black boots, and that she had told the police he was about 5'8" and 165 pounds. She testified that the defendant's face was hairy but she did not remember seeing a mustache or goatee on the defendant's face. She said he was not wearing a hat or glasses that night.
Daniel McCarthy, a Chicago police officer, testified that after arresting the defendant and taking him to the police station, the defendant asked for his Kool cigarettes and referred to them as "squares." It was stipulated at trial that an open pack of king-size Kool cigarettes was found at the scene of the crime, 14 West 18th Street, on the third-floor rear porch. Officer McCarthy testified that he arrested the defendant a week after the crime about 50 feet from the building where the crime took place.
Officer McCarthy testified that he was present at the lineup where the complainant identified the defendant as her attacker. He testified that the complainant recognized the defendant's voice, but did not visually recognize the defendant originally because he was wearing a hat and sunglasses in the lineup.
The complainant testified that she viewed a lineup with six men wherein each was wearing a hat and glasses and each was asked to speak certain phrases. She recognized the defendant's voice and the boots he was wearing but did not recognize his face immediately because of the hat and sunglasses he was wearing. After all the men in the lineup removed their hats and glasses she recognized the defendant's face, stating at trial, "I won't forget that face" and "I never forget that face." She also made several in-court identifications of the defendant while she was on the stand.
Officer William Savage testified that he conducted the lineup. He testified that there were six men in the lineup and each was asked to repeat phrases. Officer Savage said that the complainant recognized the defendant's voice. At the end of the lineup officer Savage requested that she place her hand on the person's shoulder whom she recognized as the offender, and the complainant placed her hand on the defendant's shoulder.
Denis Sherman, an attorney, was the only witness called by the defense. He testified that during interviews with legal aid clients at the County Jail he had heard a number of his black clients refer to cigarettes as "squares."
The defendant's first two contentions on appeal relate to the legality of the defendant's arrest. He contends that the arresting officer lacked probable cause in making a warrantless arrest, and that the arrest was illegal even if the officer had probable cause because he was taken into custody merely for purposes of investigation. The defendant contends, therefore, that testimony relating to the identification of the defendant by the complainant was improperly admitted into evidence because the identification was obtained during a period of detention subsequent to the allegedly unlawful arrest.
A hearing on a motion to suppress the defendant's arrest and evidence obtained as a result of that arrest was held at which the defendant and the arresting officer testified. The arresting officer, Daniel McCarthy, called by the prosecution, testified that in May of 1973 he became involved in the investigation of the rape of a woman other than the complainant. He was flagged down by a police patrol car in which this rape victim was riding at 18th and State Street in Chicago. The victim described her attacker as a male Negro, 5'8", 145-150 pounds, dark complexioned. The rape had taken place at 14 West 18th Street.
Officer McCarthy testified that he later come into possession of a composite sketch of this woman's attacker. Beneath the sketch was a description of the offender as male Negro, 21 to 25, 5'8" to 5'10", 165 pounds, dark complexion, short goatee, dark heavy natural, and sunglasses. He testified that the composite sketch also contained a "gangster type" hat that this woman's attacker was wearing during the crime. The officer testified that he had reviewed a second report which pertained to the rape of the complainant in ...