APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. WHITE, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE SULLIVAN delivered the opinion of the court:
Following a bench trial, defendant was found guilty of rape and deviate sexual assault and sentenced to a term of four to six years. On appeal, he contends (1) there was no valid waiver of a jury trial; and (2) the State's identification testimony was insufficient to prove him guilty beyond a reasonable doubt.
Mrs. Bessie Hill testified for the State that on February 4, 1971, she left home and began walking south on Racine toward 119th Street to take a bus to her place of employment. She first observed a man on the street approximately half a block north of her, and when she reached 118th Street she noticed that he was jogging in her direction. When he was two feet directly to her right, he commented, "The hawk is out." She testified that the man, later identified as defendant, was not masked and faced her when he spoke. It was light enough to see his face and she responded, "Yes, and I just missed my bus." There was no further conversation, but as she continued to walk ahead he threw a coat over her head. She started to struggle, but he hit her in the face and then dragged her to an abandoned car where he forced her in the back seat and committed the sex offenses for which he was tried. She was unable to see her assailant during this time, because the coat was still covering her head and, even when the sex acts had been completed and the coat had been removed, she was too frightened to immediately look but she did observe him running north on Racine toward 117th Street. She then went to a neighbor's house and called police who took her to Roseland Hospital where she was examined. On June 15, 1971, she went to police headquarters and viewed a five-man lineup and identified defendant as her assailant. She also identified him at trial.
On cross-examination, she stated that she was walking slowly because of ice on the sidewalks and that she saw her assailant's face only during the conversation, which took from five to ten seconds. Within 30 minutes after the assault, she described her assailant to the police as being 25 years old, 5 feet 4 inches tall, and weighing about 150 pounds. She gave no facial description and, although she first told the police her assailant did not have a beard, she later stated she did not recall whether he had a beard either at the time of the attack or at the lineup. She admitted having intercourse with her husband the night before the attack.
Jerry Springer testified he had been a policeman for 19 years and that after defendant had been identified in the lineup, he told defendant that he had been identified and, after he had been given the Miranda warnings, defendant admitted committing the rape but denied any attacks upon others. Defendant then said he wanted to see his mother, who was waiting with his wife in a nearby room. Springer testified that he and Officer O'Connell accompanied defendant to meet his mother and, as they approached, she stood up to embrace defendant and he said, "Mama, I did it."
On cross-examination, Springer stated that on the day of his arrest defendant was 5 feet 8 inches tall and weighed 175 pounds. Initially, he did not recall whether defendant wore a short goatee but, after examining a copy of his police report, he stated that defendant had a mustache, goatee and long sideburns.
The following facts were stipulated to by the parties that the examination of the prosecutrix at Roseland Hospital disclosed no visible injury, but a vaginal smear was positive indicating the presence of spermatozoa; that Brown sustained an injury on February 2, 1971, when a casting dropped on his right foot; that Dr. Paul Vanderbilt, if called, would testify that on February 2, 1971, he treated Sherman Brown for an injury to a toe which he X-rayed, splinted, and taped and advised Brown not to stand while at work; and that, if called, Dr. Earl Fredrick would testify that Sherman Brown was under his medical care on February 4, 1971, for a contusion of the left foot, for which he advised him to remain off his feet and off work from February 4 to February 16.
Four witnesses for the defense testified:
Nelda Foggie, who lived next door to defendant, could not remember the exact days but recalled that in the first three months of 1971 he had a wrapping on his foot and walked with the aid of a crutch.
Barbara Jones testified that she knew defendant for eight years and noticed on February 2, 1971, and again on February 6, 1971, that his foot was wrapped with an ace bandage held together by clips.
Defendant's mother testified that on February 2, 1971, he left home after 3 p.m. to go to work at the Clark Equipment Co. When he came home from work that night, his foot was bandaged and it was still wrapped on February 4. In June, after the lineup, she had a conversation with defendant in the presence of his wife, Officer Springer, and another officer. Defendant said then that the police were trying to make him confess to all the rapes committed in the area and that he did not commit any of them.
Defendant's wife testified that on February 2, 1971, he walked with the aid of a crutch, since his foot was bandaged, and that this condition continued through February 4. She also said that defendant never admitted in her presence that he committed the rape of which he was accused.
The parties then stipulated that if Officer O'Connell were called in rebuttal, his testimony would be substantially the ...