APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. SULSKI, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 27, 1979.
Following a bench trial defendant was convicted of one count of rape and two counts of deviate sexual assault (Ill. Rev. Stat. 1973, ch. 38, pars. 11-1, 11-3) and was sentenced to concurrent terms of four to seven years on each offense. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt.
The following pertinent evidence was adduced at trial.
Complainant testified that at approximately 7:10 p.m. on November 12, 1974, she was waiting for a ride home in the foyer of the Behavioral Science Hall at the University of Illinois Circle Campus on Morgan and Harrison Streets in Chicago. A man approached her from the rear. As she attempted to step out of his way, she turned around and observed him from a distance of "about a foot," under the fluorescent lights of the hall. She identified this man in court as defendant Charles Barber. Defendant came up to her, put one arm around her neck, placed a knife at her neck with his other hand, and said "shut up and don't move." He pulled her backwards about 20 feet into the farthest toilet stall in a women's washroom. She obeyed his order to cover her head with her coat and to remove her pants and underpants. Defendant then forced her to submit to acts of anal, oral and genital intercourse. During this sequence of events, complainant was unable to see defendant's face or upper torso because her vision was obstructed by her coat. She caught a glimpse of the knife in defendant's hand which she described as having a four-inch silver blade, approximately a half- or quarter-inch wide. Following the performance of the sexual acts, defendant told her that he thought he heard her friend outside, and that while he checked she was not to move. She stayed where she was while defendant left, returned a few seconds later, and told her not to move, to "shut up," and to keep the coat over her head. Complainant then heard a voice which she recognized as Steve Liebovitz's, a friend of hers, calling her name. She screamed his name and he entered the washroom. The assailant was no longer there. Subsequently, Liebovitz and two of her other friends took her to the campus police station. There she described her attacker to the police as a black male, 5'8" tall, wearing a brown leather jacket, a striped shirt, and dark blue pants. Defendant also wore a dark blue wool cap. After she received treatment in the hospital, she was taken to the police station, accompanied by her friends and fiance. At the station approximately two hours after the incident, she viewed a lineup consisting of five black men of various heights and weights. She picked out defendant as her assailant based upon his face and clothing. Complainant identified a photograph in court as an accurate portrayal of the lineup she saw that night and acknowledged that defendant was wearing a red wool cap in the picture.
On cross-examination, she recalled telling Chicago police officers that she was able to observe defendant "for a few minutes" just before he attacked her and stated that because her coat covered her head during the incident, that was her only opportunity to observe his upper torso. She recalled that as she looked at him as he walked towards her, she did not see anything, including a paper bag, in his arms. She recalled that he had no facial hair or glasses. She estimated that the foyer where she was when attacked was "quite a distance" and "about the length of the building" from her class, which she had left after it ended at 7 p.m. She therefore estimated the attack occurred at approximately 7:05 p.m. or 7:10 p.m. and ended at approximately 7:20 p.m. or 7:25 p.m. She stated that she thought defendant's pants were of a denim material, although she did not touch them, and acknowledged that she did not see a red cap protruding from his pockets.
On November 12, 1974, he drove his car to the Behavioral Science Building on the corner of Harrison and Morgan in order to pick up complainant after her class. He went into the building at 7:20 p.m. or 7:30 p.m., but noticed that the hallway was empty. He called complainant's name, received no response, and went upstairs to use a phone directory. About one half minute later, he returned downstairs, called her name again and began walking towards the women's washroom. A man approximately 5'5" tall, 165 lbs., with a medium black complexion, stuck his head outside the door of the washroom for about 10 seconds and then went back inside. This man, whom he identified in court as defendant, had pulled his coat over the top of his head so that only his face and the front of his shirt were exposed. Within 30-60 seconds, defendant walked out of the washroom, passed him at a distance of approximately 3 1/2 feet, and walked out of the building. He continued to walk toward the washroom, entered it, and discovered complainant, in a prone position, naked from the waist down. He later went to a Chicago police station, viewed a lineup, and identified defendant as the man he saw exiting the washroom. Defendant was wearing the same jacket he had seen him in earlier, and he realized that it was all leather, and not suede with shoulder patches as he had first thought.
On cross-examination, he acknowledged that at the preliminary hearing he testified that he began walking towards the washroom after the man stuck his head out the door, and not before as he stated at trial. He further admitted that he testified at the preliminary hearing that when he first saw the offender he only caught a glimpse of his face, that he told the police that defendant's jacket was suede with patches, and that he knows the difference in appearance between leather and suede. He acknowledged that before viewing the lineup, he identified defendant from a group of five photographs shown to him by the campus police, and that defendant was the only one of the five persons in the photographs to also appear in the lineup. He stated that he did not speak with complainant between the incident and their arrival at the police station.
He was employed as a police officer at the University of Illinois in Chicago on November 12, 1974. At approximately 7:30 p.m., complainant arrived at the campus police station accompanied by three friends. She was crying and shaking and told him that she had been attacked at about 7:10 p.m. or 7:15 p.m. by a black man, 5'8" to 5'10" tall, 140-160 lbs., wearing a brown waist length jacket and dark pants. He broadcasted the description over the radio and escorted complainant to the hospital. A second broadcast was transmitted that night adding that the coat was leather and had two colors.
On cross-examination he acknowledged that his written report of the incident does not refer to the description or the second broadcast he testified to. The facts in his report pertaining to the assault were told to him by Officer Sonya Worth who had spoken to the complainant in detail about the attack, while he had not.
On November 12, 1974, he was a police officer at the University of Illinois and was on duty in a marked squad car. Between 7:45 p.m. and 8 p.m. he received two or more radio transmissions describing a suspect that was 5'6" to 5'9", 140-150 lbs., wearing a brown suede or leather, two-tone waist length jacket and dark trousers. At approximately 7:48 p.m. he saw defendant standing at a bus stop on the southwest corner of Harrison and Halsted, approximately two blocks from where the attack had occurred. He drove by defendant slowly to get a better look at him, and decided that he fit the description he had received. Defendant was wearing a striped shirt, a waist-length leather jacket with stripes on the bottom, dark trousers, and a maroon knit hat. He placed defendant under arrest at 7:55 p.m. and a pat-down search he conducted with the assistance of police officers Atwood and Bell, revealed that defendant was carrying a pocket knife.
On cross-examination, he acknowledged that in his police report he recorded defendant's jacket as brown suede, not brown leather. The State stipulated that his police report states that he first saw defendant at 7:55 p.m. and not at 7:48 p.m. as he testified on direct. He did not recall whether a bottle of wine was recovered from defendant. He recalled that when he asked about his comings and goings, defendant showed him a bus transfer.
On November 12, 1974, he was a University of Illinois police officer. He responded to a radio call at 7:50 p.m. and proceeded to Harrison and Halsted. Lieutenant Johnson and defendant were on the corner when he arrived. The knife taken from defendant had a three-inch blade and a yellow handle. Defendant was carrying a bottle of wine about three-quarters full and a bus transfer. The nearest liquor store was one block to the north. After transporting defendant to the police station at 1140 South Morgan, Atwood had a conversation with Steve Liebovitz, to whom he showed photographs. After ...