APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
Before trial on a charge of rape, a motion to suppress identification was filed and denied. After the jury was impaneled, the defendant, Jimmy Mitchell, told the judge that he wished to represent himself. After a lengthy admonition to the defendant, who persisted in his request, the judge permitted the public defender to withdraw. The public defender advised the judge that he would remain in the courtroom. The defendant was found guilty by a jury and sentenced to a term of 4 to 12 years.
On October 22, 1970, at about 8:20 p.m., the complainant got off a bus at 69th and Jeffery in Chicago on her way home from school and walked toward her residence four blocks away. She was accosted by a man who, the evidence shows, ripped off her clothes, raped her and forced her to perform an act of oral sex. The acts took place across the street from her home. The lighting conditions were good where she was first seized and where she was subsequently carried. Illumination was provided by street lights and lights from the houses in the area. She saw her assailant for a total of 20 minutes and was in close proximity to him for 15 minutes while he performed the sex acts. During that time she never lost sight of his face. After the man left, she ran across the street to her residence at Gateway House, 6909 South Cregier, a rehabilitation center for ex-drug users, where she made an immediate complaint to Eudell Sullivan, the coordinator at the center. The police were called.
Police Officer Garth Angel, who responded to the call saw the complainant, whom he described as incoherent and "in a state of shock," lying on a couch. He went outside and saw her books sprawled on the ground where she had been first seized. He found no evidence at the place where she had been raped. He took her to Billings Hospital where an examination revealed the presence of live spermatozoa. She was later shown police photographs and sent home.
She testified that she described her assailant as a man with medium brown skin, 5 feet, 8 inches tall, 150 pounds, wearing green work clothes and heavy shoes, with a natural hairstyle and a beard. Officer Angel testified that she described the man as Negro, 6 feet tall, 175 pounds, 32 to 34 years old, with an Afro hairstyle, sideburns and a beard, and wearing green work clothes. His police report indicated that she described her assailant's age as 36 to 38 years of age. The defendant was 26 at the time of the crime.
On October 26, Officer Manella showed the complainant approximately 250 photographs, one of which she picked out. Although it is not specifically stated in the record, she apparently selected the defendant's photograph.
Police Officer Beilke arrested the defendant on November 7 and took him to the police station, but Officer Manella was unable to contact the complainant so that she could view the defendant. The police took a photograph of the defendant and released him. On cross-examination, Officer Manella denied telling the defendant that the complainant said that he was not the person.
On November 11, the defendant was again arrested. The complainant was brought to the police station and observed the defendant standing alone. She identified him as the man who had raped her. She testified that she had positively identified the defendant at the station and had never told the police that the defendant was not the man who had attacked her.
The defendant testified that at the time of the ocurrence he had been employed as a laborer at Goldblatt's department store for three months. On the day of the crime he worked until 6 p.m. He could not recall what he did after work that particular day; but he related what he customarily did: He usually washed and had a cup of coffee which took about 30 minutes; then he went home on the El which took about 35 minutes; sometimes he stopped for a cup of coffee or a beer before walking home; then he would study in preparation for college entrance examinations until about 10 p.m.; at about that time, he would take a break and go to bed. He never wore green pants, only black pants, and he did not wear a work uniform.
He also testified that he was first arrested on November 7 and that he was viewed by two women, one of whom was the complainant. After a show-up, his picture was taken and one of the police officers said that the woman was unable to identify him. Consequently, he was released. The defendant said that he was arrested again on November 11 and again viewed by the complainant. This time the police officer said that she had identified him.
At the conference on instructions, the assistant public defender who had previously represented the defendant told the trial judge that he had recently talked to Officer Beilke and that Beilke said that the defendant was viewed by "a young woman and an older woman" in connection with another case on November 7. The public defender suggested that the jury be told that the defendant was in fact viewed by two women on November 7, as Mitchell had insisted, but that Mitchell was mistaken in his belief that the complainant was one of the women. The public defender also said that the jury would regard Mitchell as a "madman" unless the source of the defendant's confusion was disclosed. The trial judge and the assistant state's attorney refused to inform the jury of these facts.
• 1 The defendant now contends that the prosecutors knew that the defendant had been viewed by two women on November 7 and that the prosecutors suppressed this information. To begin with, we are not required to accept the assertion now made by the defendant's appellate attorney that the defendant was not present at the conference on instructions. The record shows that the defendant was present in open court on November 2, 1971, at 9:30 a.m. when the clerk called the case. The court reporter then noted that the proceedings that followed were heard out of the presence of the jury, apparently in the judge's chambers.
"Mr. Court Reporter, we have sat in here and Mr. Romano [assistant state's attorney] has submitted about 12 or 13 instructions that are all stock IPI.
When Mr. Mitchell came in he said he didn't want to look at the stuff; didn't need it whatever the exact words. I said you ...