APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Jerry Johnson (hereinafter defendant) was convicted of armed robbery (Criminal Code, section 18-2, Ill. Rev. Stat. 1973, ch. 38, par. 18-2) and rape (Ill. Rev. Stat. 1973, ch. 38, par. 11-1) in a jury trial and sentenced to concurrent prison terms of 8 to 24 years. On appeal, defendant contends: (1) the trial court erred by refusing to excuse two prospective jurors for cause; (2) the trial court improperly restricted the scope of the pretrial hearing on defendant's motion to suppress identification testimony; and (3) the conduct of the prosecution in presenting its case improperly appealed to the passions and prejudices of the jury and thereby denied defendant due process of law.
On 5 August 1973, at approximately 2 to 2:30 a.m., prosecutrix and her husband were walking in the vicinity of Lake and Wood Streets in Chicago, Illinois. They were approached by three men. One of the men, later identified by prosecutrix as defendant, placed a gun against her right side and told her to keep walking. Prosecutrix testified at trial that, as she and her assailant walked, she was able to observe her assailant's profile by the street lights of the Lake-Wood intersection. The husband was taken away in the opposite direction by the other two men.
Prosecutrix was directed to walk down a nearby alley and behind a housing project. The assailant stood facing her, gun in hand, and demanded any money she had with her. He seized her purse and removed $80 to $90 from it. With the aid of building and street lights, prosecutrix was able to see her assailant's face during this encounter. Prosecutrix was then ordered to walk around a fence by some bushes. There the assailant forcibly had sexual relations with her. Afterwards, prosecutrix was permitted to leave the area. She walked to Madison Street, where she met an unidentified man who hailed a passing police car. A police officer transported her to Cook County Hospital and she received medical treatment. A physical examination showed the presence of motile spermatozoa. No trauma was shown by the examination.
The entire episode, from the time prosecutrix was first approached until she was permitted to leave the scene of the rape, consumed approximately 20 minutes. Prosecutrix testified that she was able to view her assailant's face for approximately eight of those 20 minutes.
At the hospital, prosecutrix was interviewed by Chicago Police Department Investigator Kaplan. She was shown a series of eight photographs, and identified one of the photographs (that of defendant) as a photograph of the man who had robbed and raped her.
On 12 August 1973, at approximately 3:45 a.m., defendant was arrested in the general vicinity of the incident. The next day, prosecutrix viewed a lineup of defendant and four other men, at which Kaplan was again present. Again defendant was identified by prosecutrix.
An in-court identification of defendant was also made by complainant. At that time she noted that defendant had light and dark blemishes on his cheeks, as did her assailant on the morning of the incident.
The defendant presented evidence that he was not present in the Lake-Wood vicinity on the morning of the incident. Defendant testified he spent the entire night at his home with his girl friend, Linda Mitchell. Mitchell testified and corroborated that defendant was with her continuously that night, with the exception of two short intervals in which he left the bedroom to bring back food. Defendant's mother, Delores Johnson, testified she saw defendant in the kitchen of their home at 11 p.m. on 4 August 1973, cooking something to eat. Defendant returned to the bedroom and was not seen again by her until morning. Also testifying was defendant's brother, Derrick Johnson, who stated he saw defendant briefly at 10 p.m. on 4 August 1973 in their home.
The first issue raised is whether the trial court erred by refusing to excuse two veniremen who were challenged for cause by defendant. Defendant contends that the voir dire testimony of the two prospective jurors, Garrity and Griffin, revealed bias and prejudice which rendered them unable to reach a verdict fairly and impartially. The prejudice resulting from the alleged error is that defendant was thereby compelled to use two of his 10 peremptory challenges in order to remove Garrity and Griffin from the panel; then, when he had exhausted his 10 peremptory challenges, he was thereafter compelled to accept a competent juror (one Mrs. Marrero), but one whom defendant simply found unacceptable for his own private reasons and whom he would have challenged peremptorily, had he had a peremptory challenge left at that time. It is not contended that that competent but unacceptable juror exerted any special influence upon the verdict. Defendant cites an Iowa case (State v. Beckwith (1951), 242 Iowa 228, 46 N.W.2d 20) which supports this concept of the nature of the prejudice.
Defendant initially waived reporting of the voir dire proceedings. But after the trial judge refused to excuse jurors Garrity and Griffin for cause, a side bar conference was held and reported. The remainder of the voir dire examination was then conducted in the presence of a court reporter, transcribed, and made a part of the record.
At the side bar conference, as reported, the following colloquy took place between defense counsel and the trial court:
"MR. PTACEK [defense counsel]: We were in the middle of the jury selection in the last panel. One of the prospective jurors, Mr. Garrity (phonetic) said his daughter some years ago was a victim of an attempt rape. In response to Mr. Harris' [defense co-counsel's] question he said maybe this would affect his judgment in this matter. There was also a Miss Danovsky *fn1 (phonetic) who had been the victim of an attempt robbery in which she had been beaten up six years ago. There was also Miss Virginia Griffin who said that the defendant had to prove his innocence. Based upon Mr. Garrity and Miss Griffin we asked the ...