APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 4, 1975.
After a jury trial, Ronald Witherspoon (defendant) was found guilty of rape (Ill. Rev. Stat. 1971, ch. 38, par. 11-1) and was sentenced to 5 to 15 years. He has appealed.
In this court defendant urges that identification testimony was improperly received; the evidence was not sufficient to prove guilt beyond a reasonable doubt; prejudicial trial error resulted from improper cross-examination of defendant and improper final argument by the prosecutor; and that the sentence was excessive. The position of the State is that the identification testimony was properly received as defendant was arrested after hot pursuit by police officers and the identification had an independent origin and basis; the evidence was ample to prove guilt beyond a reasonable doubt; objections to the allegedly prejudicial cross-examination were duly made and sustained and the jury was instructed by the court to disregard the same; the allegedly prejudicial final argument was proper comment and was not a material factor in the verdict and the sentence was not excessive.
A summary of the testimony is required. The complaining witness testified that about 8:30 p.m. in the evening on March 19, 1973, she was on her way home from visiting a friend. As she left the elevated train it commenced to get dark. She stopped in a tavern on the south side of Chicago to see if she could find someone to walk home with her. She met a friend named George Childs. After 10 or 15 minutes they left together and walked down Cottage Grove Avenue to 63rd Street then east to Ingleside Avenue where they turned north. They were suddenly surrounded by four men. Two of them demanded money from Mr. Childs. The remaining two accosted the witness. She identified defendant in court as one of these men and stated that he was dressed in a black coat and blue jeans and was wearing a sweater. The defendant repeatedly demanded money from her. She responded that she had none. Defendant searched through her purse and coat. He then said that he would "do the next best thing." When she tried to resist the defendant struck her in the eye and told her to be quiet.
The complaining witness testified that there was "normal" lighting on Ingleside where she was first accosted. There were no lights out. Prior to entering the gangway she was able to see the defendant's face since he was facing her and she was inches away from him during the conversation regarding money and the search of her purse and coat.
Both of the men then took her across the street to a passageway, or gangway, between two buildings. The other man went toward the back of the gangway closer to the alley and to Ellis Avenue which is the next street east of Ingleside. The complainant testified that defendant then raped her. During this process he loosened his trousers and dropped them to his knees.
The complaining witness then heard a noise and defendant's companion said he thought the police were coming. She then saw a flashlight beam shining down the gangway and heard steps. Defendant got up and started to pull up his trousers and to run away. The witness screamed and told the police that she had been raped and her assailant was running down the alley. One police officer stayed with her and another gave pursuit. The officer took the complaining witness to a squad car. When the police brought defendant past this car, while taking him to a squadrol, she told them that he was the man who had attacked her. That night, or during the early morning thereafter, the police showed her photographs of possible suspects including the defendant. Her vision was "blurred" and she failed to identify any one of them because she could not see as clearly as usual. The parties stipulated that a medical examination of the witness made at the hospital was negative for the presence of sperm.
Police Officer Crossley testified that he spoke briefly to Childs, who had accompanied the complaining witness, and then shined his light into the gangway. He saw a man dressed in a black coat and blue jeans on top of a woman. He chased the man who pulled up his pants and ran east and then down the alley. The officer pursued this person until he climbed in through a window at the rear of an abandoned, partly burned, building fronting on Ellis Avenue. A number of officers had accompanied Mr. Crossley. One of them went to the north side of the abandoned property and the other to the south. Another, Officer Greene, drove around to the front on Ellis Avenue. In a few moments Officer Greene brought an arrestee around to the back of the abandoned building. He was wearing a blue coat and blue jeans and matched the description of the man that officer Crossley had just seen on top of the victim. Officer Greene made an in-court identification of defendant as being the man he had thus arrested. Officer Crossley also testified that he took defendant back to Ingleside Avenue to put him into a squadrol. As they walked past the car in which the complaining witness was sitting, she stated, "That's the man that raped me."
Officer Greene testified that he saw a man running from the rear of the building at 6217 Ingleside Avenue. He saw this man enter the abandoned building through a rear window with other officers in pursuit on foot. He then drove his squad car around to the front of the building on the west side of Ellis Avenue. He saw the defendant, wearing a black three-quarter length coat and blue jeans, leaving the front entrance of the building. Defendant's trousers were unbuckled and unzipped. The officer then took the defendant into custody.
The parties stipulated that a police investigator would testify that he attempted to contact Childs without success. He determined that Childs had left Chicago for New York and had no forwarding address. It was also stipulated that defendant was 18 years of age and the complaining witness 42.
For the defense, defendant's mother testified that on the evening in question the defendant was home with her. She asked him to go to a nearby liquor store on 63rd Street and Ingleside Avenue to buy her a package of cigarettes. When defendant left she stood on the front porch of her third floor apartment from which she could watch him as he went on this errand and returned. She saw him walking south on Ellis Avenue to 63rd Street where he turned west to walk to the store at Ingleside. She lost sight of him after he had turned the corner. She continued to watch and saw him returning, walking north on Ellis Avenue, until he was directly in front of their home. This took about 30 minutes. She then saw a police car come up and her son arrested. She went down and spoke to the police. One of them told her that there was a robbery. When she remonstrated, the officer said, "Lady, we got to get somebody." She did not know the name of this officer but believed that she could identify him. Ellis Avenue was well lit and the lighting conditions there were "beautiful."
Defendant's mother also testified that the doors and windows of the abandoned building on Ellis Avenue had been boarded up and the building was since demolished. The defendant had broken his leg three times on various occasions. The third time he had a cast placed on the leg which he removed himself about February 14 or 15. He could not run on that leg at all because it would swell if he walked or ran on it. She never observed her son in the alley and he was not near the vacant and abandoned building. The day after the incident, she observed the complaining witness and saw nothing unusual about her eyes. She thinks that her son wore blue jeans on the night in question but was not sure about the type of coat.
Defendant's aunt testified that he enjoyed a good reputation for honesty, morality and obedience to the law. She remembered his difficulty with one leg but was not sure which one. Once he was riding a minibike and fell and broke his leg. He broke the leg again later when he fell off a garage. The third time his leg was broken when he was playing ball. He had casts on all three times. The last cast went up to his hip and he took it off himself about the 15th of March, 1973. She saw the defendant just about every day. A day or two after the cast was removed, he could hardly walk and he ...