APPEAL from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 11, 1977.
On January 11, 1974, defendant, Elroy Barksdale, was indicted for the crimes of rape and burglary. After being convicted of both crimes at a bench trial, defendant moved for a new trial based upon newly discovered evidence. After a hearing, this motion was ordered denied by the trial court and defendant was sentenced to a term of 4 to 10 years in the Illinois State Penitentiary.
Defendant appeals from the trial court order denying his motion for a new trial and contends that the trial court erred in denying this motion because the newly discovered evidence could have changed the result of the trial.
At trial, the prosecutrix testified that between 7:30 and 8 a.m. the morning of August 19, 1973, as she was asleep in her residence at 8209 South Maryland Avenue in Chicago, a man entered her bedroom and threw a cold rag over her nose and mouth. The man was shaking and told her, "If you make a sound I'm going to kill you." The intruder then pulled the half-slip the victim was wearing over her face to cover her head and told her to walk into the living room where he forced her to bend over a pool table and have sexual intercourse with him. During this act of intercourse, the victim's 18-month-old son walked down the hallway. As the victim glanced back to tell her son to leave, she was able to see the intruder.
After this initial act of intercourse, the intruder told the victim to walk toward the kitchen. As she walked around the pool table into the kitchen, the victim saw the intruder's reflection in a mirror located above her stereo system. The intruder then forced her to lie down on her back on the kitchen floor. Although her slip was over her head, it was daylight and the victim could see her assailant clearly as he bent over her. He kept telling her to turn her head away but she refused. Holding a knife to her throat, the intruder had intercourse with her again. He was on top of her and she was able to look directly at his face during the entire five minutes during which the act occurred.
After the assailant completed this second act of rape, he forced the victim to walk back into the bedroom and fled through the front door. The victim ran to the front door and saw her assailant disappear through a gangway. She called the police who arrived a short time later and drove the prosecutrix through the neighborhood in an unsuccessful attempt to locate the assailant. The police then drove the prosecutrix to the hospital for tests.
The victim went on to testify that the following day she saw her assailant in a candy store near her neighborhood and obtained his name and address from an employee at that candy store. Later that day, the victim went to the 5th District Police Station and observed a lineup. She identified the defendant Barksdale from among five or six persons in that lineup. The victim also identified Elroy Barksdale at trial as the man who had raped her.
Officer Townsend, a Chicago Police Officer, testified that he received a communication at about 7:55 a.m. August 19, 1973, which directed him to the victim's residence. Arriving at her residence, Officer Townsend spoke to the victim who appeared upset and stated that she had been raped. After an unsuccessful search of the neighborhood in an effort to find the offender, Officer Townsend transported the victim to Roseland Community Hospital.
Officer Fiske, another Chicago Police Officer, testified that in the late afternoon on August 20, 1973, he received a communication which directed him to 8125 South Cottage Grove Avenue. Upon his arrival at that location, Officer Fiske encountered the defendant, the victim's boyfriend, and two police officers. After speaking to the defendant, Officer Fiske placed the defendant under arrest for the crime of rape. At this time defendant stated that he lived at 200 North Pine, but was staying at his sister's home.
After the above testimony, it was stipulated that if the microanalyst who analyzed a smear specimen taken from the victim were to testify he would state that the above specimen showed positive for the presence of spermatozoa. It was further stipulated that defendant's age at the time of trial was 38.
Defendant, Elroy Barksdale, testified at trial that he washed dishes at the Navarone Restaurant in Niles from 7 p.m. August 18 to 5 a.m. on August 19. Because his ride to the train station had fallen through, defendant flagged down the sheriff's police who gave him a ride. Defendant received another ride to the CTA bus terminal on Milwaukee Avenue in Chicago from a Niles police officer. Arriving at the terminal at about 7 a.m., defendant then proceeded by bus to the Armenakis employment agency at Halsted and Madison in Chicago where he slept from 7 a.m. to 10:30 a.m. Defendant then received a job at the Black Steer Restaurant where he worked from 11:30 a.m. until 8 p.m. Defendant returned home to 200 North Pine and went to his sister's home to baby-sit the next day. On the way to his sister's home, defendant stopped off at a candy store.
Defendant went on to testify that on the afternoon of August 20, two men came to his sister's house and asked him if he had been involved in a rape. After being warned by his sister not to accompany the men, the ...