APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendants, Sylvester Henderson and James Sims, were each charged with the crimes of aggravated kidnapping (Ill. Rev. Stat. 1971, ch. 38, par. 10-2), rape (Ill. Rev. Stat. 1971, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1971, ch. 38, par. 11-3), and two counts of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18-2). Defendants were tried by a jury and found guilty of aggravated kidnapping, rape, and both counts of armed robbery, but not guilty of deviate sexual assault. Both were given consecutive sentences of 15 to 45 years for the aggravated kidnapping, 20 to 60 years for the rape, 15 to 45 years for one count of armed robbery, and 10 to 30 years for the other count of armed robbery. Defendants now appeal. A summary of the evidence follows:
The complainant testified that, on December 4, 1971, she returned to her apartment at approximately 8 p.m. She had parked her car and was carrying two packages of "sample diapers," her purse, and other packages. As she was walking from her car, she felt someone pulling the purse off her arm and turned to face a man who put a gun to her head and ordered her to another car parked in the garage. The garage was illuminated by lights in the garage itself and street lights in the adjacent alley.
The complainant was ordered into the backseat of the car and, at that time, she observed another individual in the driver's seat. As she entered the car, she initially saw his profile, and at that moment, he turned around, affording her an opportunity to see part of his face. The victim, still carrying her packages, was pushed to the floor of the backseat, landing on her back. The non-driver entered the backseat, lying on his stomach and facing the victim, and held a gun to her head. Complainant later identified defendant Sims as the non-driver, and defendant Henderson as the driver.
The car was then started up, with all occupants still in the same position. After a brief interval, the victim heard the driver say a policeman was following the car. They continued on for a short distance when the driver said he had to urinate, stopped the car, and got out. The non-driver told her that if she said anything or looked, he would kill her. The non-driver kept looking out the back window when he suddenly jumped out of the car, stepping on the victim as he did so. The complainant then heard scuffling sounds and shouts saying, "Get him in the car, get him in the car." Although she was apparently only a few feet from a melee, the victim could not see what was taking place outside the vehicle. Nor did she notice any of her packages fall from the car.
The non-driver then returned to the car and resumed his position on his stomach in the backseat. The car started up and she heard conversation between the two men such as: "Get off the road; turn here; they've got your license number; can you make it." The non-driver also told her: "That copy [sic] was going to save your life but we took care of him." As they continued driving, all three remained in their original positions with the non-driver passing various items taken from the victim, including her purse, to the driver. At one point while they were driving, the complainant saw the non-driver get up and point his gun out the window.
After the initial stop, the victim and her two abductors drove for approximately 20 more minutes. After stopping again, the non-driver led the victim into an abandoned apartment building. At this point, she did not know what happened to the driver. Once inside the building, the non-driver ordered her to undress. She complied except for her coat which she wore during the entire incident. The non-driver then held a gun to the victim's head and had intercourse with her during which she was able to see his face. She identified defendant Sims as her assailant. The second man now appeared and both led the victim to another room. At this time, she was unable to see the face of the second man because his back was turned to her, but she was able to observe that the second man was carrying a cane.
Once in the second room, the non-driver again had intercourse with the victim, and also forced her to perform acts of anal and oral copulation with him. The second man, whom she was now able to see and later identified as defendant Henderson, then had her perform all three acts with him. After this series of assaults, the complainant was told to dress and was led back to the car. She was pushed to the floor of the backseat and a vest, which would remain covering her eyes until she was released, was put over her head. One of the men entered the backseat and the car started up.
After a short time, the car stopped and the man in the backseat (she was unable to identify him because of the vest covering her eyes) told the victim to undress. She was then forced to have intercourse and perform acts of oral and anal copulation with that individual. Afterwards, she was allowed to dress and the car started up again. After a short distance, the car stopped again. Complainant was led from the car, and told, "Take the vest off of your head and don't turn around or I'll kill you."
The victim stopped a bus which then stopped a squad car. She was eventually taken to a hospital where the presence of sperm in her vagina indicated that she had had sexual relations within the last eight hours.
Officer Frank Jasch of the Chicago Police Department testified that, at approximately 8 p.m. on December 4, 1971, he observed a "'65 or '66 Pontiac" speeding and changing lanes on Lake Shore Drive. He was able to observe only one person, the driver, in the auto. He turned on his Mars light, and at one point, his siren, to pull the vehicle over.
After curbing the vehicle at approximately 1700 North Lake Shore Drive, Officer Jasch met the driver halfway between the two vehicles. Officer Jasch asked for and received the driver's license. For the next two or three minutes they discussed the violations and moved slowly toward the Pontiac. Officer Jasch recalled that the driver had a cast on one leg and carried a cane. He identified defendant Henderson as the driver.
While at the rear of Henderson's vehicle, Officer Jasch wrote "DZ 6452, 7201 South Harvard, N. Carolina," on the back of Henderson's driver's license. As he finished writing the rear door of the car flew open and he observed a man in a prone position on the backseat of the car pointing a gun at him. This man said, "Don't move, or I'll kill you." The man got out of the car, put one hand around Jasch's throat, and put the gun to his head. As he got out of the car, Officer Jasch was able to observe his face and later identify him as defendant Sims. Although Jasch was very close to defendant's car, he did not see anyone else in the backseat.
Both defendants began moving Officer Jasch toward the police vehicle, and repeating, "Get him in the car, get him in the car." At this point, he felt his service revolver leave its holster and felt it placed in his side. The gun at his head was removed and a scuffle ensued. During the struggle, Officer Jasch was able to break away, run into the traffic on Lake Shore Drive, and hail a cab. He observed defendants' auto proceeding southbound on Lake Shore Drive.
Officer Jasch returned to the area of the fight and recovered a bag of diapers which he had seen fall out of defendants' vehicle. At trial, Officer Jasch identified a plastic bag of diapers as the same diapers he recovered that night. At trial, the victim also explained that the diapers were special test diapers not available on the market and, because of special design characteristics, she could identify the diapers as one of the packages she was carrying when she was abducted. Finally, Officer Jasch identified photos of defendant Henderson's car as the car he stopped the night of the armed robbery.
Mr. Julius Roth was driving southbound on Lake Shore Drive on December 4, 1971, some time after 8 p.m. At approximately 1700 North Lake Shore Drive, he noticed a police officer and two black males standing by the road next to a police car. As Mr. Roth approached, he saw the police officer "throw up his hands * * * and * * * run across * * * into the traffic." Mr. Roth later saw the same automobile that had been stopped next to the police car pull away from the side of the road and pass him. He saw two persons sitting in the car, one in the front and one in the back. When Mr. Roth attempted to move closer to that vehicle to "identify the persons in the car," the one in the back pointed a "shiny object" at him and he ceased pursuit. Mr. Roth testified that the car involved in this incident was "very similar" to two pictures of defendant Henderson's car.
At approximately 1:30 a.m. on December 6, 1971, Police Officer Galich was driving home in a private automobile with another police officer. At that time, he noticed a 1965 Pontiac with N. Carolina license plates which fitted the description of a vehicle listed as wanted in a police bulletin. They stopped and called for additional help and then followed the vehicle. As additional help arrived, the vehicle double parked and the sole occupant, the driver, exited the car and entered a tavern at 91st and Greenbay. As the driver walked to the tavern, Officer Galich noticed that the driver had a cast on his leg. The police bulletin that listed the vehicle also stated that one of the men connected with the wanted vehicle had a cast on his leg. About a minute later, that individual came out of the tavern and was arrested. Two of the items recovered during that arrest were a driver's license issued to defendant Henderson with "DZ 6452, 7201 South Harvard, N. Carolina," written on the back, and a bill of sale for that car listing Sylvester Henderson as the owner. Officer Galich identified defendant Henderson as the man he arrested early on December 6, 1971.
Miss Emma Jean Landfair testified that early on the morning of December 6, 1971, she was in a tavern at 91st and Greenbay. At that time defendant Henderson approached her and asked if she would do him a favor. After she agreed, Henderson handed Miss Landfair a loaded revolver. Henderson then left the tavern and Miss Landfair took the gun to her home. Later that same morning, the police came to her home and recovered the revolver. At trial, she identified the revolver as the one given her by defendant Henderson due to a name engraved on the side of the weapon. Officer Jasch easily identified the revolver as the one taken from him on the night of December 4 because his name and star number were engraved on its side.
During the morning of December 6, defendant Henderson was placed in a lineup with six other individuals and positively identified by Officer Jasch as the driver of the automobile he stopped on December 4. That same morning, defendant Henderson was placed in another lineup with three other individuals. In this second lineup, defendant Henderson was positively identified by the complainant as the man who had driven the car in which she was kidnapped and who had raped her on the evening of December 4.
Also on the morning of December 6, the complainant viewed eight or ten photographs. From that group, she selected a photo of defendant Sims as the second individual who had kidnapped and raped her. Subsequently on December 6, police procured an arrest warrant and two police officers repaired to the home of defendant Sims but were advised he was not on the premises. Defendant Sims subsequently surrendered to the police on December 8. In the afternoon of December 8, he was placed in a lineup with four other individuals and positively identified by Officer Jasch as one of the individuals who stole his revolver on December 4.
In one indictment, defendants were charged with the crimes of aggravated kidnapping, rape, armed robbery, and deviate sexual assault of the complainant. In a separate indictment, defendants were charged with the armed robbery of Officer Jasch. The indictments were consolidated and the case tried before a jury. The first jury trial resulted in a mistrial. At a second jury trial, defendants presented a defense based primarily on discrepancies between the original statements of the State's witnesses and their trial testimony. Both defendants were found guilty by the jury of aggravated kidnapping, rape, and both counts of armed robbery, but not guilty of deviate sexual assault. Both were sentenced to consecutive terms of 15 to 45 years for aggravated kidnapping, 20 to 60 years for rape, 15 to 45 years for the armed robbery of complainant, and 10 to 30 years for the armed robbery of Officer Jasch. All sentences are to run consecutively. Defendants now appeal.
• 1 The first issue raised questions as to the sufficiency of the evidence to prove defendants guilty beyond a reasonable doubt. In particular, both defendants level a broad attack on the victim's in-court identification of them as her assailants.
Defendant Henderson argues that the victim had only a limited opportunity to observe him. He points to the victim's testimony that only twice during the entire episode, once in the car and once in the abandoned apartment building, was she able to observe defendant Henderson's face. Both defendants challenge the sufficiency of the lighting in the garage, in the car, and in the building. And both defendants rely on testimony by the victim that she lost her glasses when she was accosted in the garage. Although not with the same degree of specificity, both defendants also question the identification by Officer Jasch.
However, it is a well-settled rule of our criminal law that the identification testimony of a single witness, even if it be that of a crime victim, is sufficient to convict if the identification is positive and the witness is credible. (People v. Clarke, 50 Ill.2d 104, 277 N.E.2d 866; People v. Smith, 9 Ill. App.3d 195, 292 N.E.2d 128.) The mere fact that the victim did not have an extended opportunity to observe defendant Henderson is not, in itself, enough to vitiate her positive identification of Henderson as one of her assailants. (People v. Smith, 18 Ill. App.3d 859, 310 N.E.2d 734.) The instant record evidences a more than adequate opportunity by both the victim and Officer Jasch to identify both defendants.
• 2 Defendants' arguments concerning the lighting conditions and the loss of the victim's glasses are similarly without merit. The victim described the garage where she was able to observe both defendants as a "pretty well lit area." She was face to face with defendant Sims while traveling on Lake Shore Drive, a well-lit thoroughfare. And she was necessarily face to face with both defendants during the series of assaults in the building. Under such circumstances the lighting conditions were more than adequate and the loss of the victim's glasses insignificant. (People v. Canale, 52 Ill.2d 107, 285 N.E.2d 133; People v. Booth, 20 Ill. App.3d 88, 312 N.E.2d 736.) Needless to say, the lighting conditions for Officer Jasch's identification are beyond question.
In addition to the identification testimony, defendants characterize the State's testimony as a whole as unbelievable and on that basis also challenge the sufficiency of the evidence. Only a few of the many purported "improbabilities" relied on by defendants need be set out: although the victim claimed her purse was pulled from her arm when she was first approached in the garage, nothing else fell to the ground; although Sims allegedly stepped on the victim when leaving the car on Lake Shore Drive, no marks were found on the victim's stomach; although the abandoned building was described as glass and debris ridden and although ten sex acts allegedly occurred there, there were no marks or cuts on the victim's body; although the victim spent a considerable time in Henderson's car and although a rape allegedly occurred there, no fingerprints were introduced into evidence and no evidence of a rape in the car was found; defendants argue that it is physically impossible for two men to commit ten sexual acts within such a short period of time; and finally, defendants suggest that it is incredible that they would continue their crime spree and still be driving the same car two days later, after having been stopped and identified by the police.
We find nothing improbable about the victim's testimony that, although her purse was pulled from her arm by Sims, none of her other packages fell to the ground. The fact that one item was snatched from the victim does not require her to lose control of all her packages. Defendants make much of the fact that the victim did not have any marks or cuts following the incident. As for Sims stepping on the victim as he left the car on Lake Shore Drive, the record fails to reflect the severity or manner of this ungentlemanly like conduct. It is possible for a person to step on a body without inflicting discernible trauma. Sims stepped on the victim; he did not stomp on her. As for the glass and debris ridden apartment building, defendants completely overlook the victim's testimony that she kept her coat on during her entire stay in the building. Regarding the lack of fingerprints in Henderson's car, the evidence technician testified that there were no "suitable fingerprints," a common enough finding after investigation of a crime scene. Although there was no evidence of a rape having been committed in the car, it must be remembered that two days elapsed between the alleged rape and the first opportunity the police had to examine the car. That is more than ample time in which to clean the interior of the car. Defendant's reliance on the medical evidence that it is impossible to commit ten sexual acts within such a short period of time is misplaced. Defendants' argument is premised on the assumption that defendants ejaculated during each act. That is an assumption not supported by the record and not required for a conviction of rape. Finally, while we agree that the State's evidence depicts two rather daring or foolish criminals, that, in itself, does not render the State's evidence unbelievable. The fact that defendants manifested a good deal of bravado in committing their atrocious crimes tells the jury more about defendants than about the veracity of the State's witnesses.
• 3 In any event, all defendants' alleged improbabilities, whether real or imagined, were before the jury and were properly a matter for their consideration. (People v. Kriston, 12 Ill. App.3d 18, 297 N.E.2d 206.) Minor discrepancies and inconsistencies in testimony do not render that testimony unworthy of belief, but go only to the weight to be given that testimony. (People v. Hanna, 42 Ill.2d 323, 247 N.E.2d 610; People v. Cooper, 69 Ill. App.2d 18, 216 N.E.2d 168.) After a review of all the testimony, we find nothing so improbable so as to raise a reasonable doubt as to defendants' guilt.
• 4 Defendants also attack the sufficiency of the evidence regarding prior statements of the victim which they allege were inconsistent with her testimony at trial. Specifically, defendants note that, when interviewed at the hospital immediately after the incident, the victim told an investigating officer that when she was accosted in her garage, she had been approached from behind and told not to turn around. She also told that officer that she was kept on her stomach while in the car, not on her back. After the officer had interviewed the victim and Officer Jasch, the investigating officer "wasn't sure of anything." Defendants also point to the victim's testimony at the preliminary hearing concerning her ability to observe defendants while in the abandoned building. Defendants argue that all three statements are inconsistent with the victim's testimony at trial and thus render her trial testimony untrustworthy.
The victim's confusion immediately after the incident is easily explained by the fact that she had just undergone an obvious traumatic experience. Indeed, the investigating officer testified that she was "shaking like a leaf" and could hardly talk. As for her alleged inconsistent statement at the preliminary hearing, a complete and objective reading of the transcript of that proceeding reveals that her testimony there was substantially the same as at trial. In any event, such inconsistencies in testimony taken at different times are not unusual and go only to the weight to be given the testimony by the jury; they do not destroy the credibility of the witness. People v. Bell, 53 Ill.2d 122, 290 N.E.2d 214; People v. Gant, 18 Ill. App.3d 61, 309 N.E.2d 265.
• 5 It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or as to the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses. (People v. Montgomery, 19 Ill. App.3d 206, 311 N.E.2d 361.) A reviewing court will not set aside a finding of guilty unless the evidence is so palpably contrary to the finding or so improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. (People v. Beathea, 24 Ill. App.3d 460, 321 N.E.2d 458.) It would serve no purpose to reiterate the evidence which compels this court, like the jury, to find that the evidence overwhelmingly established defendants' guilt beyond a reasonable doubt.
• 6 Defendants challenge the pretrial identification procedures. They conclude that because of the allegedly prejudicial pretrial procedures, their in-court identification should have been suppressed.
Defendant Sims argues that there was a suggestive confrontation in the police station between himself and Officer Jasch prior to his lineup, and that the lineup, itself, which Officer Jasch viewed was suggestive. Sims also argues that the victim's in-court identification was tainted because of allegedly prejudicial use by the police of certain photographs.
Defendants add the additional issues of whether they were entitled to the presence of counsel at their preindictment lineups and photographic displays, and whether the trial court improperly denied them a second hearing on their motion to suppress identification testimony.
Prior to defendants' first trial, defendants' counsel filed a written motion to suppress the identification testimony of the victim and of Officer Jasch. That written motion attacked both the makeup of the lineups and the fact that defendants did not have counsel present at those lineups. The testimony of defendants offered in support of those allegations showed only they did not have counsel during their lineups. Defendants' attorney then expressed a desire to call as witnesses both the victim and a policeman who allegedly showed her some photographs. Since the victim was not available that day and since the policeman had not yet been identified, the hearing was recessed until the next day. The next day defendants' counsel stated that sufficient testimony had been presented to show the absence of counsel at defendants' lineups. Based on that alleged deprivation of defendants' rights, counsel stated further witnesses were unnecessary and rested. The motion to suppress was denied.
Before the second trial, both defendants' attorneys *fn1 moved, at different times, for another hearing on a motion to suppress identification testimony. It was argued that the first hearing had been insufficient to adequately apprise the court of all the alleged pretrial irregularities that occurred in the identification process and that new grounds would now be urged to support a suppression of identification testimony.
In order to be entitled to suppress identification testimony, the burden is on the defendants to prove that the pretrial procedures were so unnecessarily suggestive and conducive to irreparable mistaken identification that they were denied due process of law. (People v. Johnson, 45 Ill.2d 38, 257 N.E.2d 3.) At the hearing held on defendants' motion to suppress the identification testimony, the only evidence offered in support of their written motion to suppress was defendants' testimony regarding the absence of counsel at their preindictment lineups. Both the lineups and the motion to suppress in the instant case were conducted prior to the decisions of Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, and People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161, both cases holding that the right to counsel at a lineup attaches only after the initiation of adversary judicial criminal proceedings. Because those decisions are not retroactive, we are not required to determine whether this record presents facts indicating the initiation of adversary judicial criminal proceedings. (See People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473; People v. Anderson, 121 Ill. App.2d 313, 257 N.E.2d 594.) Rather, at the time of the instant proceedings, it was clear that defendants had no absolute right to counsel at a preindictment lineup. (People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173; People v. Rodgers, 3 Ill. App.3d 85, 279 N.E.2d 72, aff'd, 53 Ill.2d 207, 290 N.E.2d 251.) The trial court correctly denied the motion to suppress the identification testimony based solely on the absence of counsel at the preindictment lineups.
• 7 Defendants also argue that the declaration of a mistrial vitiated the effect of the court's ruling on their first motion to suppress and thus, they were entitled to a hearing on their second motion to suppress.
The general rule is that once a motion to suppress has been ruled upon by one judge, that motion cannot be relitigated later before another judge, absent a showing of exceptional circumstances or of any evidence that has become available since the first hearing to suppress. (People v. Armstrong, 56 Ill.2d 159, 306 N.E.2d 14; People v. Gierbolini, 27 Ill. App.3d 75, 327 N.E.2d 297.) In the instant case, there has been no showing of exceptional circumstances and counsel's offer of proof after the refusal to hear the second motion to suppress indicated no new evidence that was not available at the time of the first hearing.
Defendants attempt to avoid application of the general rule by arguing that the declaration of the mistrial somehow vitiated the ruling on the first motion to suppress. Defendants rely on Haywood v. Swift & Co., 53 Ill. App.2d 179, 202 N.E.2d 880. In Haywood, the court stated that a mistrial vitiates "all the proceedings" up to the time the mistrial is granted. (53 Ill. App.2d 179, 181.) However, Haywood did not involve a mistrial vitiating pretrial proceedings. Indeed, that statement in Haywood was dictum since the fact that a mistrial had been granted had no importance to the holding announced by the court. We have been directed to no case dealing explicitly with the effect of a mistrial on pretrial proceedings.
A mistrial is granted because of some fundamental failure in the proceedings, the damaging effect of which on the jury cannot be removed by admonitions or instructions. It is the remedy granted when the minds of the jurors have become so tainted that one party cannot receive a fair trial. (88 C.J.S. Trial § 36b (1955).) It is because of this taint on the minds of the jurors that the jury is discharged. It is thus apparent that only those proceedings which have caused the mistrial are vitiated by that order. While in the usual case, this could well be only trial proceedings, we are unwilling to enunciate any such absolute rule. We can envision a situation where it was error at a pretrial proceeding that caused the mistrial. Under that circumstance, both the pretrial and trial proceedings would surely be vitiated. We hold that it is only those proceedings which have caused the mistrial that are vitiated by the mistrial.
In the instant case, the cause of the mistrial was wholly unrelated to the pretrial motion to suppress. It was granted entirely because of trial occurrences. As a result, any prejudice to defendants was obviated by vitiating only the trial proceedings. The instant jury was not in any way involved with the pretrial motion to suppress. Thus, the discharge of the first jury and the empaneling of the second jury did not give defendants any greater right to a second hearing on their motion to ...