APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Bennie Jones (defendant) was convicted of rape, aggravated battery, attempt murder and taking indecent liberties with a child. The defendant was sentenced to concurrent terms of 50 to 100 years for each offense. Defendant appeals.
Defendant contends that the means utilized to effectuate his identification by the complaining witness were so unnecessarily suggestive and conducive to mistaken identification as to deny him due process of law; the State failed to sustain its burden of proving the defendant guilty beyond a reasonable doubt; pretrial publicity and prosecutorial misconduct deprived defendant of a fair trial; the instructions were improper and prejudiced the jury; the conviction for taking indecent liberties with a child, which arose from the same facts as the rape conviction, cannot stand; and the sentence was excessive.
On the afternoon of February 29, 1976, the complainant, then 13 years old, walked past a factory or warehouse building. She heard someone say "Come here" and she was grabbed around the arm and neck and pulled into the building. She "started to scream." She got a look at her assailant when he locked the door. She identified this person in court as the defendant. The man was wearing a dark blue uniform with a patch on the arm. He had a light mustache and a short "afro" haircut.
She continued to scream. The defendant seized her by the hair and dragged her up a flight of stairs and into an office. Defendant then raped her. This office was well lighted. She looked at the defendant's face during this incident.
Defendant dragged the complainant through the brightly lighted warehouse. He sprayed her in the face with scotchguard fabric protector from an aerosol can. He then stuffed her into a locker into which he continued to spray the contents of the can. In a short time defendant returned to the screaming complainant. He had a steel pole in his hand. He dragged and pushed her into a boiler room. He struck her over the head with the metal pole. Defendant then produced a knife. He ordered the complainant to slash her wrist. When she refused, the defendant slashed her left wrist with the knife. Defendant left the boiler room for a short while. He locked the door behind him. He returned and slashed the complainant's throat twice with a knife. She cried and screamed. Defendant then proceeded to stab her several times in the chest, neck and back and also kicked her. Defendant attempted to tie her hands together with some dirty rags. Complainant testified that at this time she "slumped over and fell asleep."
Subsequently, defendant returned and shined a flashlight into the complainant's eyes. She testified that, "I tried to pretend as if I was dead." The defendant kicked and pushed her and then left the room. The complainant did not recall seeing the defendant again. She testified to several periods of unconsciousness interrupted by her attempts to leave the boiler room. She kept falling down and falling asleep. Finally, she made her way out of the boiler room. She was found the next morning by some men who had entered the building to move some machinery. They called the police.
The complainant was admitted to the intensive care unit of a local hospital. She could not speak because of her injuries. She communicated by writing on paper given to the police officers at the scene of the incident. At the hospital she nodded her head in response to questions asked by hospital employees. In this manner, she informed the officers that she had been raped, her assailant was black, tall and thin, and he wore a uniform and a badge.
On the next day, the police officers went to the hospital and received a verbal description of the assailant from the complainant who was then able to speak. She described her assailant as a young, black man who wore a uniform. Later that same day, the officers returned to the hospital with a lineup photograph. Although the complainant had been receiving medication, both of the officers and the attending nurse testified that she was responsive and alert. The complainant had intravenous tubing in one arm and a heavy cast on the other. She was unable to lift either arm to point to the photograph. The attending nurse testified that she supported the complainant's arm while the complainant pointed to one of the men in the photograph. Without being told that a suspect had been arrested and without her attention having been directed to any part of the photograph, the complainant pointed to the defendant and stated that she was certain that he was her assailant. This occurrence was witnessed by the attending nurse and the two police officers, all of whom were present in the hospital room at the time of the identification.
Medical testimony showed that when the complainant was admitted to the hospital she had "big lacerations" in the front of her neck. There were also cuts on her windpipe, trachea, chest and back and on her left wrist. She was unable to speak but was responsive and alert. The vagina had bruises and a marked swelling.
The evidence shows that the police ascertained that the defendant was the security guard at the warehouse about the time that the complainant had been taken in. After a consentual examination of defendant's home, the police found his freshly washed uniform in a washing machine. Examination of defendant's shoes and of the complainant's clothes showed type A human blood. The complainant's blood is type A and that of defendant is type O. The police conducted a lineup. As indicated, a photograph reflecting this was shown to the complainant in the hospital.
The defendant, about 19 years old at the time of the occurrence, testified that he was a security guard at the factory or warehouse on the date in question from about noon to 8 p.m. He was wearing a blue uniform with a badge sewn on the jacket. He was admitted by a female guard he was to relieve. She left about one hour after he arrived. Other than himself he saw no man in the building who fit the description of the assailant supplied by the complainant. The door through which he entered the factory was locked. When he entered he "was the only one there." He did not hear a girl screaming. Defendant testified, "I didn't hear anything."
Defendant denied categorically that he had raped or mistreated the complainant. He testified that because of surgery on his legs, and resulting heavy scars, he is obliged to walk on the ball of his left foot. His employment application recited that he had no "serious handicap" or "physical disorder." The guard he had relieved testified that, "The person who replaced me did not have a limp."
Defendant's mother testified that she saw the defendant for 30 to 35 minutes on the night in question, February 29. She stated that there were no stains on defendant's uniform. The State called a police officer who testified that he had interviewed defendant's mother at her home on April 4, 1977. She told him that she did not see the defendant from 12 o'clock noon February 29, 1976, until 7 a.m. March 1, 1976.
The defendant first contends that the State failed to prove him guilty beyond a reasonable doubt. In so doing the defendant questions the validity of the identification made by the complainant. The Illinois Supreme Court has held that the burden of proving that a lineup procedure was unfair is upon the defendant. People v. Brown (1972), 52 Ill.2d 94, 100, 285 N.E.2d 1, citing People v. Blumenshine (1969), 42 Ill.2d 508, 511-12, 250 N.E.2d 152.
1 Defendant urges that the fact that he was the only man in the lineup without shoes was highly suggestive. This court has rejected similar arguments. In People v. Keane (1970), 127 Ill. App.2d 383, 390, 262 N.E.2d 364, the defendant was the only man in the lineup wearing a blue jacket. This court held that this fact alone did not make the lineup "so suggestive or prejudicial as to fatally taint the identification." See also People v. Bates (1973), 9 Ill. App.3d 882, 892, 293 N.E.2d 358; and People v. Spence (1976), 43 Ill. App.3d 1044, 1049-50, 357 N.E.2d 1245.
Defendant urges that the attending nurse and not the complainant identified the defendant from the lineup photograph. The complainant testified that the nurse provided support for her left arm which was weighed down by a cast while she (the complainant) identified the defendant by pointing to him in the lineup picture. This testimony was corroborated by the attending nurse. The defendant also contends that the police officers retained in their possession individual photographs of the defendant which were inherently prejudicial to him. The officers testified that while they were in possession of photographs, these photographs were not shown to anyone. The complainant testified that the only photograph which was shown was the lineup picture.
The defendant further urges that the complainant failed to testify to any abnormality attributable to the legs of her assailant. A presentation of the defendant's legs in the courtroom revealed that the defendant has significant scarring on both legs below the knees. This evidence has little weight as the complainant testified that she looked into her assailant's face during the assault. The complainant did not testify that she saw the legs of her assailant. Defendant also stresses that the complainant's description of the defendant was fatally defective because she did not state that her assailant walked with a limp. Defendant contends that he does have a limp. However, a fellow employee of the defendant, whom he relieved at the factory, testified that she had never noticed the defendant walked with a limp. The record convinces us and we accordingly hold that the identification by the complainant was not so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law.
2 The Illinois Supreme Court has adopted the "totality of the circumstances" test established in Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967, to evaluate the admission of possibly suggestive out-of-court identifications. In accordance with that test the court has held in People v. Manion (1977), 67 Ill.2d 564, 571, 367 N.E.2d 1313:
"* * * evidence of an unnecessarily suggestive identification may nevertheless be admitted at trial if reliability of the identification, under the ...