APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
GERRITY, Judge, presiding.
MR. PRESIDING JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, Eugene Clerk, was arrested and charged in an amended complaint with aggravated assault, criminal damage to property, unlawful use of a weapon, possession of burglary tools and burglary with intent to commit a felony. After a finding of probable cause was entered in a preliminary hearing on the charges of burglary and possession of burglary tools, the prosecutor also filed an information, which contained counts of burglary with intent to commit rape, attempt rape, and possession of burglary tools. The defendant's motion to quash the information's charges of burglary with intent to commit rape and attempt rape was sustained, but the State was given leave to add to the information an additional count charging burglary with intent to commit theft. Then, the State dropped the information, but filed an indictment charging the defendant with burglary with intent to commit rape, burglary with intent to commit theft, attempt rape, and possession of burglary tools.
The defendant's motion to quash his arrest and suppress evidence, as well as his motion to suppress his identification, were denied, and the defendant was found guilty in a bench trial of possession of burglary tools, of burglary with intent to commit theft, and of burglary with intent to commit rape. He was acquitted on the attempt rape charge. The defendant was sentenced to 4-12 years on each count of burglary and 1 year to 1 year and a day for possession of burglary tools, with all sentences to run concurrently.
On appeal, the defendant asserts: (1) the trial court erred in allowing the State to proceed against him by indictment on charges which the court did not permit to be included in the information previously filed because probable cause had not been shown, (2) the procedure resulting in the defendant's pretrial identification was so suggestive and conducive to error that it violated his due process rights, (3) his conviction for burglary with intent to rape is legally inconsistent with his acquittal for attempt rape, (4) his conviction for possession of burglary tools was supported by insufficient evidence, (5) the evidence did not support his conviction for burglary with intent to commit theft, and (6) the trial court erred in finding him guilty of two burglary counts which arose out of the same conduct.
Before trial, two witnesses testified at the hearing on the motion to quash and suppress. The first witness, Sergeant George Nance, an East Chicago Heights police officer, testified that, with another officer, he arrested the defendant between 7 and 7:15 a.m. and placed him in the back seat of a police car. The arrest took place less than one-half hour after the officer left the victim's home. When the officers left her home, the victim appeared frightened and upset. The place of the arrest was 6 blocks from the victim's house and 3 or 4 blocks from the East Chicago Heights police station; Sergeant Nance stated that the trip to the police station was shorter than going to the victim's home.
The officers then returned to the victim's home. Sergeant Nance went into her home, leaving the defendant outside in the car. Sergeant Nance showed the victim a knife that had been taken from the defendant and asked her if she recognized it. She replied, "Yes, this is the knife!" Nance told the victim that he had a suspect, but did not tell her that the defendant was sitting in the car outside, since he wanted to see if she would come out on her own and identify the defendant. Nance stated that the victim did not come out to the car to look at the defendant but to go to the police station. Nance stayed in the house with the victim for a few minutes until she calmed down a bit. Nance and the victim then left the house to go to the police station. When she arrived at the police car, she stated, "That's him."
The second witness at the hearing on the motion to quash and suppress was the victim. She testified that the police officers arrived around 6:55 or 7 a.m. She said that she had reported the break-in of her home and the two officers had responded within 5 minutes, staying there 4 to 5 minutes. She described the individual to the officers as a masked or semi-masked individual. She stated that he was not too tall, and was dressed in a green jacket and dark pants, and had "nappy" hair. She also told the police that the offender had a brown knife, a screwdriver, and a flashlight in his hands.
She said the police officers returned 5 to 10 minutes after leaving: Officer Nance came into the house, and had a conversation with her. Officer Nance showed her a knife, which she identified. He then told her to come down to the police station in his car, but did not tell her that they had arrested anyone. She saw for herself that someone was in the vehicle, and when she got in the car, she knew that it was the offender, and identified him. She sat in the back seat with her sister and the defendant, who was handcuffed at the time and was wearing a green jacket, T-shirt and dark pants.
At trial, the victim testified that she lived in East Chicago Heights with her mother, her brothers and sisters, and her 3-month-old baby. At 7 a.m., wearing panties and a bra, she was asleep with her baby on the couch in the front room on the first floor. The rest of her family was upstairs. Her baby started to move, and when she awoke the defendant was standing over her. He was wearing a green jacket, black pants, and a white T-shirt. His hair was not combed. He also had taken her little brother's shirt, ripped it, and put it over his face. The defendant's face was covered from the middle of the nose on down, and he was standing over her holding a long knife with a brown handle. The defendant held this knife at her throat, and also had a screwdriver and flashlight in his hands.
The defendant told her to get up and she did. When her baby started crying, the defendant told her to keep the baby quiet or he would kill her. The defendant then told her to lie on the floor, and she did. The defendant stood over her, unbuckling his belt and unzipping his pants. The defendant's mask slipped when he was getting ready to undo his pants, so she was able to see his nose and eyes. She said the lighting conditions were good and that she was able to see the defendant clearly.
She testified that at this point her mother started to get up and that there was some noise upstairs. The defendant then left through the back door and told her that if she called the police he would kill her. The defendant ran out on the street in front of her home, where she saw him again as she ran to the front door and stepped out on the porch. The balance of her testimony on direct examination duplicated the testimony which she gave at the hearing on the motion to suppress and which is set forth above.
On cross-examination the victim testified that the defendant never took anything from the house and that the defendant never told the victim that he would. The defendant also never told her that he wanted to have sexual intercourse with her. She also stated that when she first saw the defendant, he was over her on his knees, up against the couch; she was looking at him from under a blanket. The knife held by the defendant was open and she could see the handle at all times. She told Sergeant Nance that the knife was long and had a brown handle, but she did not describe the flashlight or the screwdriver. She said the offender had brown eyes and his hair was unusual; it was "nappy" and was not combed. She stated that she was nervous and kept her eyes open at all times. She did not try to resist the defendant. She saw that the defendant was wearing black pants and a green jacket with pockets on the side. She testified that she had not seen a jacket this color before.
The next witness for the State, Sergeant Nance, testified that he responded to a call, arrested the defendant and searched him. A knife, a screwdriver and a flashlight were taken from the defendant by his partner, in Nance's presence. The knife and screwdriver were admitted into evidence. The knife was removed from the defendant's pocket. Nance said he had not seen other knives exactly like this one.
The defendant testified in his own behalf. He stated that on the morning in question he awoke, washed and fixed breakfast. He got his jacket and then started toward his future wife's house, a block from his home, to watch their son. When he went across the street, Sergeant Nance pulled up and said, "Get in the car." At that time of the morning there were normally people on the street corner waiting for a bus. The defendant stated that he never entered the victim's residence nor attempted to commit ...