APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Jerry Evans (hereinafter defendant), after a bench trial, was found guilty of rape and two counts of armed robbery. He was sentenced to concurrent terms of imprisonment of not less than eight nor more than 20 years on each finding of guilt.
On appeal defendant contends: (1) defendant's motion to dismiss for failure to bring defendant to trial within 120 days from the last delay properly attributable to him should have been granted; (2) as there was no probable cause for his arrest, it should have been quashed and the resulting lineup identification should have been suppressed; (3) the trial court should have ordered the production of the mug books viewed by the complainants; and (4) defendant was not proved guilty beyond a reasonable doubt.
On June 2, 1973, about 10:30 p.m., four men invaded the home of Joy and Daniel Voight at 1917 North Wood Street, Chicago, Illinois. These men robbed the Voights and each of them raped Daniel's wife, Joy. After being identified by Daniel Voight in a lineup held June 5, 1973, defendant was arrested on charges of armed robbery and rape.
Prior to trial, the trial court denied defendant's motion to dismiss for failure to bring defendant to trial within 120 days after the arrest of June 5, 1973. Defendant argued that a continuance to January 14, 1974, allowed on November 16, 1973, was erroneously held by the trial court to be by agreement; and a one-day delay which resulted from defendant's waiver of a jury trial on the 120th day of the term, causing the trial to begin on the 121st day, was all erroneously attributed to defendant.
Defendant's motion to quash his arrest and suppress his subsequent identification in a lineup following that arrest was considered by the trial court together with the trial on the merits and denied at the conclusion of the State's case.
At trial the Voights testified that four uninvited men entered the unlocked front door of their home about 10:30 p.m. on June 2, 1973, held them at gunpoint, took Daniel's wallet and Joy's rings, ransacked the house taking several other items, raped Joy, and tied up both Joy and Daniel before leaving the house.
Joy Voight made an in-court identification of defendant as the second man of the four to enter her home on the evening of June 2, 1973. She had also previously identified him at a preliminary hearing. Joy could not recall giving any description to the investigating officers on the evening of the offense. On cross-examination, she described the men as they appeared that evening. The first offender to enter the house carried a gun, was a Negro between 5'9" and 6', had sideburns, bushy hair, and wore platform shoes; the second offender (previously identified as defendant) was clean shaven, his hair was shorter than it was at the time of trial, and he was between 5'8" and 6'; the third was short, heavy, and wore checkered pants. The only fact she could recall concerning number four was that he was the skinniest. Joy admitted she wore glasses and could not see distances very well without them. On the evening of the offense, she had her glasses on until they were removed by one of the offenders.
Joy testified that, at their home on the day following the incident, she and her husband viewed pictures supplied by the police. Defendant was not identified from any of those pictures, although they did identify two of the other offenders. On the same day the Voights also viewed a lineup at the police station in which no suspect was identified. On June 5, 1973, the Voights separately viewed another lineup from which Joy identified two suspects neither of whom was defendant. From that same lineup Daniel also identified two suspects, one of who was defendant.
Daniel Voight made an in-court identification of defendant as the second offender to enter his home on the evening of June 2. He corroborated his wife's testimony that defendant took the gun from the lead man who had entered carrying the gun, and led Daniel to the kitchen while his wife was taken to the bedroom. Daniel testified he could not remember exactly how he had described the offenders on the night of the incident. To the best of his recollection, he testified that he had told the officers the offenders were all clean shaven, except for sideburns, and that they were all pretty young. After having his recollection refreshed by defense counsel, Daniel admitted having described the second man who entered the house as a male Negro, 16 years old, 5'1" to 5'3", 180 to 190 pounds, black coat, tan jacket. Other offenders had been described as follows: one a male Negro, 19 years old, between 5'9" and 5'10", black waist-length jacket, green-brown plaid checkered pants, and platform shoes; another, a male Negro, 20 years old, 5'7" to 5'9", 130 pounds, black leather jacket, and black shoes.
Daniel also related viewing photographs at his home and at the police station from which offenders other than defendant had been identified. Daniel testified he had identified defendant as one of the offenders during a lineup which took place on June 5, 1973. He stated he was not blindfolded at any time during the incident, and that the lights in the house were on during the entire time.
Several policemen testified regarding the investigation and the arrest of defendant. Charles Fields, a Chicago police officer, testified that on June 4, 1973, he arrested Willie Ligon who was driving an automobile which had been taken during a home invasion at 4647 West Race on June 3, 1973. Officer Howard Hagen testified that he questioned Willie Ligon after his arrest. During the course of that questioning, Willie implicated three other persons in the home invasion of June 3, 1973 Versie Gilmore, Donnie Gilmore, and Eugene Davis. Officer Hagen also talked with Versie Gilmore and Eugene Davis, both of whom discussed not only the June 3 offense, but also the June 2 invasion of the Voight home. In connection with the invasion of the Voight home, they both implicated a person by the first name of "Jerry." Officer Hagen testified that a subsequent investigation revealed that the person called "Jerry" was Jerry Evans, defendant. Defendant was arrested after coming to the police station pursuant to a telephone request by the police.
Timothy Nolan, a Chicago police officer, testified regarding the photographic identification by the Voights of suspects other than defendant. Nolan did not know if defendant's photograph had been among those in the mug [photographs] books viewed by the witnesses. A defense motion for the production of those books during Officer Nolan's testimony was denied.
James Phelan, a Chicago police officer, corroborated the testimony of the Voights regarding the June 5, 1973, lineup. He indicated three suspects were identified at that time. Joy Voight identified two suspects, neither of whom was defendant; and Daniel identified two suspects, one of whom was defendant.
It was stipulated that defendant was 18 years of age; and that Joy Voight was treated at St. Elizabeth Hospital on the night of the incident and that the ...