APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for the crimes of armed robbery, aggravated battery and attempt rape. Following a bench trial, defendant was convicted of armed robbery and aggravated battery of Robbie Parker (Ill. Rev. Stat. 1973, ch. 38, pars. 18-2, 12-4) and sentenced to a term of 4 to 8 years for armed robbery. On appeal he contends that (1) the pretrial identification procedures were so suggestive as to give rise to a substantial likelihood of misidentification so as to deny him due process of law; (2) he was not proved guilty of armed robbery and aggravated battery beyond a reasonable doubt; and (3) he cannot be convicted for two offenses derived from the same act.
Before trial, defendant filed a motion to suppress in-court identifications by the witness, Robbie Parker. He alleged that her identification was induced by the actions of the police and was grossly suggestive and deprived him of due process of law.
The following pertinent evidence was heard on the motion to suppress. Robbie Parker testified that on April 8, 1974 about 1:30 in the morning she got off a bus at 49th Street and Cottage Grove Avenue in Chicago, Illinois, and was walking west on 49th Street between Evans and Langley Streets. She was accosted by defendant who approached her from behind and attacked her with a knife. After he attacked and robbed her, he forced her into an alley and got on top of her. She saw the police pull into the alley and defendant ran. Police officers caught defendant and brought him back to about five feet of the squad car in which she was sitting. They asked her if he was "the man." She answered "yes."
After she identified defendant, she was taken to the hospital and then to the police station at 51st Street and Wentworth. While at the police station, she viewed a lineup of five men and picked out defendant.
She further testified that when she saw defendant outside the squad car he was wearing the same clothing he had on when he attacked her. He had on a blue Levi jacket, plaid pants and a blue hood over his head. She was not shown any photographs before viewing the lineup and was told by a police officer to identify from the lineup the person who attacked her.
John Farrell, a Chicago police officer:
On April 8, 1974, he arrested defendant, and transported him to 4852 South Evans Street, Chicago, Illinois. He had seen a man running from an alley at 4852 South Evans where a woman was calling for help. He and his partner had chased the man on foot and lost him. He got back into his squad car and began to search the area. He heard a description of the assailant on the radio. He stopped defendant because his clothes fit the description received over the radio. Defendant was wearing white and brown checked pants, blue hood and a Levi jacket. Defendant could not produce any identification and a knife and an umbrella was found in his possession.
After taking defendant back to the alley at 4852 South Evans, Farrell had defendant stand outside of his squad car. Neither the officer nor the defendant talked to anyone at that time.
On cross-examination Farrell testified that when his vehicle pulled into the alley he saw the assailant get off the victim and run northbound in the alley. The attacker had on a blue Levi jacket, hood and brown and white checked pants. He and his partner chased the assailant about one half block up the alley and then lost sight of him. After receiving a description over the radio, Farrell observed defendant at 47th Street and Champlain, placed him under arrest, and put handcuffs on him. He also stated that at the time defendant stood outside the squad car the street lights, alley lights and squad car vehicle lights were on. Furthermore, defendant was taken outside the vehicle in order that Mrs. Parker could view him and determine whether he was her attacker. If she had failed to identify him, Farrell stated, he would have been released and the officers would have continued the search for her assailant. Farrell was present at the lineup and saw the victim identify defendant.
The motion to suppress was denied and the following pertinent evidence was adduced at trial.
Robbie Parker testified that on April 8, 1974, at approximately 1:30 in the morning, she exited a bus at 49th Street and Cottage Grove in Chicago, Illinois. She was returning home from working a shift at the Chicago Post Office. While walking west on 49th Street, she looked behind her and noticed defendant a half block away on the corner of Evans and 49th Streets. As she proceeded under a street light at an alley between Evans and Langley Streets, defendant approached her from the rear and said "Turn off cool tonight." Before she could give a response, defendant placed a brown-handled linoleum knife around her neck and said, "Give me the money." She replied that she had no money and defendant stepped in front of her and stood one foot away from her. Defendant then cut her on the left cheek and he said, "This is to let you know I mean business." After he cut her, he said "You don't have any money? So give me your watch." Defendant ripped her watch off her left arm. During this time she was facing defendant and his face was about one foot away from her. The lighting was good. She screamed and he punched her twice and knocked her down. After she got up from the ground, defendant said, "Well if you do what I tell you to do, you won't get hurt." She replied "I don't know what you want me to do because I don't have any money." During this conversation she noticed that defendant had a heavy moustache, sideburns, and whiskers around his chin. She saw that he was a male Negro about six feet tall and that he wore a blue Navy jacket, a dark hooded jacket and white plaid, dark checked pants. He forced her into the alley and while holding the knife around her neck and told her to pull her slacks off. She removed her slacks and underclothing. He struck her with his fist, knocked her down, and jumped on top of her. He started fumbling around the waistband of his pants. Before he could proceed any further, police officers came into the southern end of the alley. He jumped up and ran north in the alley. Mrs. Parker was helped to her feet by police officers from one squad car. Officers from another squad car chased defendant. She dressed in a police squad car and remained there. While sitting in the police car, the other police officers returned with defendant. One of them asked her if defendant was the same man who attacked her. At this time, defendant was standing about five feet from the squad car in which she was sitting. She identified him as her assailant. Approximately, five minutes had passed from the time he ran north in the alley until she identified him while he was standing outside the police car. After receiving medical treatment at Provident Hospital, she went to the 51st and Wentworth Police Station where she identified defendant from a five-man lineup.
On cross-examination, Mrs. Parker stated that she was not wearing eyeglasses the night she was attacked but that she had her glasses with her that day. She testified that after defendant cut her on the left cheek she bled heavily. She further stated that after he struck her on the left side of her face her left eye swelled but that she could see out of it until the next morning.
During her redirect examination, she acknowledged that the police officers did not ask her for a description of defendant ...