APPEAL from the Circuit Court of Winnebago County; the Hon.
DAVID R. BABB, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant Kenneth Goble was indicted by a Winnebago County grand jury on one count of rape and two counts of indecent liberties with a child. Defendant waived a jury trial, and following a bench trial was found guilty on all three counts. Judgment was entered on one count of rape and one count of indecent liberties with a child, and defendant was sentenced to a term of 4 to 20 years on each count, sentences to be served concurrently.
On appeal, defendant contends (1) that he was denied due process of law by the allowance of testimony concerning a pretrial lineup and subsequent in-court identification, (2) that the State failed to prove him guilty beyond a reasonable doubt, (3) that the court erred in finding the 7-year-old brother of the complaining witness competent to testify, (4) that he was denied a fair trial by the introduction of evidence of telephone "traps", and (5) that the court erred in entering judgments and sentence on the indecent liberties counts as those offenses were not sufficiently distinct from the offense giving rise to the rape conviction.
We first deal with defendant's contention that he was denied due process of law when the court allowed testimony concerning an alleged unnecessarily suggestive pretrial lineup and subsequent in-court identification, allegedly tainted by that suggestive lineup. Defendant was arrested May 15, 1974, on a criminal complaint of disorderly conduct and placed in a lineup later that day. His attorney was present at the lineup, having been generally informed that the defendant was under suspicion for a charge of indecent liberties or sexual assault of a child. The lineup was viewed, separately, by the 11-year-old complaining witness and her 7-year-old brother, both of whom, again separately, identified the defendant as the assailant. Subsequently, the defendant moved to suppress testimony regarding the lineup and any in-court identification. The court denied the defendant's motion. We find that the lineup was not unnecessarily suggestive and therefore need not reach the question of whether the in-court identification had an independent basis, and need not reach the State's contention that the presence of defendant's counsel at the lineup precludes defendant from later objecting to the identification procedures.
• 1 The threshold question is whether the totality of the circumstances show that the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny defendant the due process of law guaranteed him under the fifth and fourteenth amendments to the Federal Constitution. (Stovall v. Denno (1967), 388 U.S. 293, 301-02, 18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967.) The burden of proof is on the defendant to establish that the identification procedure was suggestive. People v. Watkins (1970), 46 Ill.2d 273.
The elements of suggestiveness alleged by the defendant in this case are as follows. The description given by the complaining witness on the day of the offense, July 26, 1973, was that the offender was more than 6 feet tall, medium build, 25-30 years old with dark brown hair which was "kind of stubby around his face and short," wearing wire-framed sun glasses, and that he did not have a beard or moustache. In addition, a composite facial sketch was made by a police officer pursuant to information given by the victim. At the time of his arrest and appearance in the lineup, defendant was 29 years old and did not have a beard or moustache. The other four men in the lineup were all detectives in the Rockford Police Department. One man was approximately 40 years old and had a moustache, a second was 42 and did not have a moustache, a third was approximately 38 and did not have a moustache, and the fourth was 29 and had a moustache. The officer who selected the men to appear with defendant in the lineup testified at the suppression hearing that although he had not read the description, he was familiar with the composite and selected the others based on it as well as the physical appearance of the defendant.
The record on appeal contains a copy of a photograph of the lineup. A review of that photograph reveals that all five men, including the defendant, are casually dressed in sports coat and open collared shirt, are of medium build, of approximately the same height, and have short dark hair. Although the testimony reveals an age difference between defendant and the other two men without facial hair, that age difference is not apparent from a viewing of the photograph, as the defendant appears older than his 29 years and of approximately the same age as the older detectives. We also note a resemblance between the composite drawing (a copy of which appears in the record as defendant's exhibit at trial) and a number of the men, including the defendant.
Viewing the totality of the circumstances then, we feel that the facts that the only other 29-year-old had a moustache, and that the testimony showed that the only other men without facial hair were approximately 10 years older than defendant, are not sufficient to show that the confrontation in this case was so unnecessarily suggestive as to be conducive to irreparable misidentification. We note that both children independently viewed the lineup and independently and unequivocally identified the defendant; and that there is no indication that he was pointed out to the children or that the children were told that the police had caught the culprit (see United States v. Wade, 388 U.S. 218, 232-33, 18 L.Ed.2d 1149, 1161, 87 S.Ct. 1926). We therefore find that the court did not err in denying defendant's motion to suppress pretrial lineup and subsequent in-court identification.
Defendant's second contention is that the State failed to prove him guilty beyond a reasonable doubt. A brief presentation of the lengthy evidence is necessary at this point to properly dispose of this claim. On July 26, 1973, while only the complaining witness, 10-year-old Lorrie and her 6-year-old brother Jimmy were at home, a man came to their home between 5:30 and 6 p.m., asking if their daddy was at home. Lorrie testified that when she first saw him, he was standing outside the screen door. He asked some questions regarding her father, and then asked to use the bathroom. She testified that during this questioning she could see his face. She testified that he was behind her as she led him upstairs to the bathroom. As she turned to go to her room, he grabbed her from behind, pulled her into the bathroom, locked the door and told her to take off her shorts and lie on her back. He then unzipped his pants, put his penis in her vagina, put a washrag in her mouth, pulled her shirt up over her face, then pulled the shirt down, and put his penis in her mouth. He then got up, told her he would come back and kill her if she ever told anybody, unlocked the door and left, telling her to stay there 5 or 10 minutes.
She further testified this was not the first time she'd seen the man, that she had seen him in May of that year when he came to her house, asked to use the phone, looked at the phone book and left without using the phone. She admitted that when she'd first spoken to police, on the evening of the offense, she told them it was January when she previously saw the man, but that she later remembered the weather was warm so she now knew it was May. She gave a description of the man which fits the defendant except as to height; she said he was approximately 6' and defendant is 5'9". However, she also said he was wearing "today's look" two-tone shoes, and defendant testified he often wore shoes with 2" heels. On his first visit, she had observed him drive up in a car with two children, a girl about 2 and a boy of 6 or 7. She further testified that she next saw the man when she picked him out of a lineup at the police station in May 1974. Her 7-year-old brother Jimmy also testified to seeing the man on the two occasions at their home, and he independently also picked defendant out of the lineup. He further testified that he spoke to the boy in the car defendant drove up in both times, and, as he had told police the day of the offense, that the boy told him his name was "Shawn". Jimmy identified this boy out of a class of 38 children; the boy he pointed to was Sean Goble, defendant's son (though defendant testified his son was never called "Shawn"). Defendant had two children, Tina who was 3 1/2 in July 1973 and Sean who was 6 1/2 in July 1973.
Lorrie's mother testified that they had been receiving frequent annoyance phone calls prior to the rape, and that these calls started again two months after the rape. A telephone trap was put on their phone for various 1-week periods, but the calls only seemed to come when the trap was not on. However, the trap was on on Saturday May 11, 1974, at 4:10 a.m. and Sunday May 12 at 8:30 a.m. when they received two more of the annoyance calls (the calls were of a hang-up nature the caller would just breathe and hang up). The traps revealed that both these calls had been made from the Elco Tool Company where defendant was a security guard on duty that weekend. There were some operations going on in the plant at 4:10 a.m. Saturday, but there was not a full force of employees present. All operations ceased at noon Saturday, and the plant was closed from noon Saturday until midnight Sunday night. Defendant was on duty as the only security guard from midnight Friday to 8 a.m. Saturday May 11, and from 4 a.m. to 4:30 p.m. Sunday, May 12. Defendant was responsible for insuring that all doors were locked and that no unauthorized persons were in the plant. A maintenance supervisor testified that defendant called him at 9 a.m. Sunday to report a malfunctioning furnace, and that he came to the plant at 9:30 a.m. to fix it, stayed one-half hour, and saw no one at the plant other than defendant. A vice-president testified he arrived at the plant with his family at 11:30 a.m. (letting himself in with his own key) and that he saw no one there besides defendant. There was no proof that anyone other than defendant was in the plant at 8:15 a.m. Sunday when the annoyance call was made to the complaining witness' residence and defendant was the only person authorized to be in the plant at that time.
Defendant presented an alibi defense through his own testimony and that of his brother-in-law and a friend, that they were at defendant's home that evening from 5 until 9 p.m. and that defendant never left, and that even though they visit with defendant frequently they remember July 26, 1973, because it was defendant's birthday. Defendant also presented evidence that he had had a vasectomy in April 1972 and Dr. Taylor who performed the vasectomy testified that he examined specimens of defendant's semen in June 1972 and again in February 1975, just prior to trial, and that on both occasions defendant's semen contained no sperm; that it was his opinion that defendant was sterile from June 1972 through February 1975.
Dr. Blomberg, who treated the complaining witness in the emergency room approximately 2 hours after the rape, testified that he took internal and external smears of the vaginal areas of the victim, and upon microscopically examining these slides, found no evidence of sperm on either. He then left the slides in the lab. There was evidence that the complaining witness had not douched, and the Doctor testified that under those conditions he would normally expect to find many sperm.
Ms. Winterland, a cytologist, testified that the next morning she put the slides on a staining rack with 60 other slides, and put the rack through 17 different stains. She then examined the complaining witness' slides and found one sperm on the internal slide. She took this to Dr. Owano, a pathologist, who verified her finding. Ms. Winterland testified that while the slides were on the rack going through the staining process they were next to the slides of another suspected rape victim on whose internal and external slides were found thousands of sperm. There was testimony that it was possible for a cell to come loose ...