APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT
McKAY, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, John Ross (defendant) was convicted of rape (Ill. Rev. Stat. 1975, ch. 38, par. 11-1) and indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11-4(a)(1)). Defendant was sentenced to 75 to 225 years.
Defendant appeals. He contends the court improperly denied his motion to suppress photographic identifications, claiming his photograph was taken following an illegal arrest; the prosecutor's closing argument was prejudicial and the indecent liberties conviction should be vacated in view of the rape conviction. The State agrees to the last contention but urges that the photographic identification was the result of an arrest premised upon probable cause and the prosecutor's closing remarks were reasonable inferences drawn from the evidence presented at trial.
The complainant is an 8-year-old girl who was attacked and raped on May 20, 1976, near her home in Markham, Illinois. We will summarize evidence at the hearing on the motion to suppress and at trial.
On the motion, Officer Schultz, a patrolman for the Markham Police Department, stated that on May 20, 1976, at 12:15 p.m., he spoke with a 12-year-old girl at her home. She reported an assault she experienced that day a short time earlier. The girl stated her assailant was a heavy-set male Negro, 5 feet 5 inches to 5 feet 8 inches tall, approximately 30 years old, wearing brown and white checkered pants. According to the young girl this man approached her on the street, quickened his pace and seized her by the arm. The girl was rescued unharmed by a neighbor who had witnessed the incident.
At 6:30 p.m. that same day, May 20, 1976, Officer Schultz was present when complainant described the individual who raped her to him and Officer Simmons, another member of the Markham Police Department. Complainant stated the man was a heavy-set Negro, 25 to 30 years old, 5 feet 8 inches tall, wearing a beige sweater and maroon slacks.
On May 21, 1976, Officer Schultz received a radio report while on patrol. The dispatcher told him the complainant's mother had telephoned and reported that the suspect who allegedly raped her daughter was walking in the vicinity of their home. As the officer arrived in the area, several children ran up to the squad car saying "the man" he was looking for had just entered a house down the street. One child ran ahead and specifically pointed to defendant's home. The officer observed defendant, with whom he was previously acquainted, standing inside the screen door. As the officer approached, defendant disappeared and his mother came to the doorway. The officer asked Mrs. Ross if he could speak with defendant. He told defendant to come to the police station for investigation of a rape. He gave defendant the Miranda warnings and then took him to the station. The officer did not have an arrest warrant.
Defendant's mother testified Officer Schultz said he was arresting defendant for suspicion of rape. Her account of the arrest differed from Officer Schultz's narrative in that she did not recall defendant standing in the doorway when the officer approached the home.
Officer Simmons testified he spoke with defendant at the police station May 21, 1976, after Officer Schultz had taken defendant into custody. Defendant was charged with the attempted abduction of the 12-year-old girl above discussed. Defendant said, "I admit I'm guilty about trying to grab the [12-year-old] girl but that's all I have got to say." The police department took defendant's photograph and he was then released.
Shortly thereafter, this picture and a group of 9 others were presented to complainant while she was hospitalized as a result of the rape. She identified defendant from the picture. Officer Simmons thereupon obtained and executed a warrant for defendant's arrest on May 24, 1976.
Turning to the trial itself, complainant's mother testified that on May 20, 1976, complainant came home from school at the noon hour as she had forgotten her lunch. At 12:30 p.m. complainant left to return to school. Later that afternoon the witness received a telephone call from the school office reporting that complainant was ill. The child was brought home and went directly to bed. An hour or so thereafter complainant told the witness of bleeding when she urinated. Complainant then related that as she returned to school a man grabbed her, showed a knife and raped her. Officers Schultz and Simmons came to the home. That same evening complainant entered the hospital where she underwent surgery and remained some 4 or 5 days. The doctor who examined complainant the evening of May 20, 1976, stated complainant was bleeding vaginally due to a large vaginal laceration. No sperm was found.
The complainant, 8-years old at the time of trial, testified she met a man while she was walking back to school after lunch. This man told her not to scream and showed her a knife. He took her hand and led her to a grassy area where he took off her underpants, lay on top of her 2 to 3 minutes, and "stuck" his penis in her vagina. He then instructed her to walk away without looking back. When she arrived at school she joined her class but shortly told her teacher she was not feeling well. She eventually related the incident to her mother and took the police officers to the grassy area above described. The complainant recalled recognizing "the man who did it" from a series of photographs presented to her at the hospital. She made an in-court identification of defendant as the offender.
On cross-examination the witness stated her assailant was wearing checkered pants and a blue shirt. She looked directly at his face for perhaps 4 seconds during the walk to the grassy area. On redirect she stated her eyes were open the entire time while the man was on top of her and recalled looking at him three separate times as they walked down the street.
Mrs. Ruth Biggs, complainant's neighbor, stated that at 12:45 p.m. on May 20, 1976, she saw a man and a little girl walking down the street. The man held the little girl's hand and continually stared at Mrs. Biggs as the pair passed her home. The witness was in her front yard at the time within 5 to 10 feet of these people as they walked by. The witness stated she again saw the man on May 21, 1976. She was standing at the front desk of the Markham Police Station when the man ran out from the building. The witness identified defendant as this same individual. On cross-examination she stated she went to the police station May 21, 1976, to report the incident witnessed on the street the previous ...