APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WAS PREPARED BY JUSTICE BUCKLEY WHILE ASSIGNED TO THE ILLINOIS APPELLATE COURT, FIRST DISTRICT.
Defendant, Robert Thomas, was charged by information with rape, deviate sexual assault, and armed robbery. After a jury trial, he was convicted on all three charges. The circuit court of Cook County subsequently sentenced defendant to serve concurrent terms of 20 to 40 years in the Illinois Department of Corrections for each conviction.
Defendant appeals from his conviction contending: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred by restricting defendant from showing that a police officer made a prior inconsistent statement at the preliminary hearing; (3) the court erred in allowing certain hearsay testimony; (4) the court erred by refusing to delete the word "sex" from the cover of a "mugbook" which contained defendant's picture; and, (5) the trial court erred in refusing to allow testimony of an officer's usual police procedure in displaying "mugbooks" to crime victims.
Pertinent facts as developed in the lower court follow:
Defendant made a pretrial motion to suppress the identification testimony of complainant. Defendant theorized that there were numerous discrepancies and uncertainties in her identification testimony and that identification procedures implemented by the Chicago Police Department were unduly suggestive. The trial court denied the motion to suppress finding a lack of suggestivity in the procedures implemented and a consistent pattern of identification by complainant.
We need not recite the testimony elicited at this hearing, since, on appeal, defendant does not contest the propriety of the court's ruling on the motion, but rather contends that the trial record establishes a reasonable doubt of identification.
At trial, complainant testified that at approximately 4 p.m. on December 28, 1976, she left work, arriving home sometime after 4:15 p.m. She entered the courtyard of her apartment building, proceeded to her mailbox in the vestibule and was then confronted by a man she identified in court as the defendant. Defendant told her not to scream and that he had a knife. The victim testified that he held a folding knife with a black handle. She identified a State's exhibit as a knife that is or is like the one her attacker used. Complainant asked the defendant if he wanted money and he replied affirmatively. Initially, she could not find any money in her purse. At that point the defendant told her: "Let's walk out; I don't want anybody to see me here."
Defendant then forced his victim at knifepoint to accompany him through a gangway to the rear of the building. Complainant testified that lighting conditions were good from the vestibule to the courtyard of the building which leads to a gangway to the rear of the building. The source of the lighting was street lights.
Complainant further testified that at the rear of the building, they arrived at a "shack-like" garage with two missing walls. Upon entering the garage, her assailant told complainant to put her purse down and remove her coat. She put her purse down, gave him approximately nine dollars, but refused to take her coat off because it was too cold. At this point, defendant exposed his penis. When a dog barked he put his penis back in his pants and ordered his victim to accompany him.
Assailant and victim proceeded down an alley to the street and then re-entered the alley. While they were walking near the street, defendant ordered complainant to put her arm around him so that any people passing would think they were together by choice. During the entire time they were walking, defendant kept his knife next to complainant's side. They reached another gangway which led to a basement, located under the porch of the building.
We believe that it is necessary to recount in detail the gruesome nature of the attack on complainant because identification of defendant is at issue upon appeal. The following testimony by the complainant evidences her opportunity to view her assailant in close proximity for a long duration.
Upon reaching the bottom of the stairs, assailant ordered complainant to her knees and forced her to perform fellatio. He then forced her to lie down, remove her panties, and have intercourse with him. Immediately thereafter, she was directed to "clean up" his penis and forced to perform another act of oral copulation. Finally, assailant once more forced his penis in complainant's mouth and this time urinated. Complainant testified that the entire ordeal took about one hour.
When defendant left, complainant dressed, retrieved her purse, and called the police. The police arrived shortly and transported her to Saint Anne's Hospital where she was treated.
Complainant further testified that while she was at the hospital she was interviewed by the police officers. She described her attacker as five feet five or six inches tall, weighing between 140 and 160 pounds. He had a stocky build, medium dark complexion, and was unshaven. She also testified that her attacker was wearing a knit wool skull cap.
On December 28, 1976, two days after she was attacked, complainant went to Area 4 Homicide/Sex police headquarters to view pictures of possible suspects. Complainant testified that she viewed six to eight books captioned "sex" or "robbery" and selected three photos of men who resembled the rapist. She did not see any photographs of defendant in the photobooks viewed.
Complainant further testified that on January 8, 1977, Officer Dulay and his partner arrived at her home and showed her five photographs. She recognized one of the five as her assailant. That photograph was of defendant. At about 7 p.m. on the same day at police headquarters, the victim witnessed a lineup comprised of five individuals. During the lineup, she requested that the men say "shut up bitch," a phrase used by her attacker. Complainant then positively identified defendant as her attacker.
On cross-examination, complainant testified that the mugbooks she viewed on December 30, 1976, were similar to defendant's exhibit one, an Illinois Department of Corrections photograph book of sex offenders who were recent parolees (penitentiary releasee book). Additionally, she stated that of the five pictures displayed by Officer Dulay, only defendant's picture was stocky. She maintained that she was positive defendant was her assailant before he spoke at the lineup.
On redirect examination, complainant explained that she knew she had not viewed defendant's exhibit one on December 30, 1976, because none of the books she saw contained defendant's picture. She also testified that, as she was leaving the lineup on January 8, 1977, she was shown a knife. In her opinion, it was the same knife she identified in court. Finally, when again asked to explain the difference between defendant's exhibit one and the photo books she viewed, complainant testified that the images in the defendant's exhibit were larger.
Investigator Charles Dulay next testified for the State. He corroborated complainant's account of what transpired after the police arrived, including her interview at St. Anne's Hospital. When Dulay was asked to describe defendant's exhibit one, the defense objected. At sidebar, the State argued that the penitentiary releasee book need be distinguished from other mugbooks in order for the jury to comprehend and believe complainant's differentiation on the basis of image size. Defendant's offer to stipulate as to the difference in image size was refused by the State and defendant's objection overruled by the trial court. Dulay then testified that the images in defendant's exhibit were larger because their origin was the Illinois Department of Corrections. The other mugbooks contained photos taken by the Chicago Police Department.
Dulay also testified concerning complainant's photo identification of January 8, 1977. He explained that complainant thought the picture of defendant depicted her attacker, but she wanted to see him in person to be positive. He noted her identification as tentative in his report.
On cross-examination, Dulay testified that he remembered complainant's description of her attacker's complexion as "dark brown." Dulay did not know which officer had shown complainant the photobooks on December 30, 1976.
The State's final witness was Officer Michael Cronin. He testified that he participated in the arrest of defendant on January 8, 1977. The witness and his partner searched defendant pursuant to arrest and discovered a knife. In his arrest report Cronin listed defendant's height as five feet seven inches and his weight as 180 pounds. Cronin was provided these statistics by defendant. Cronin helped conduct the lineup during which complainant identified defendant. When asked what complainant did when she saw the knife at the lineup, Cronin testified that she jumped back and said "That's the knife."
Prior to the defense's case, the State made a motion in limine to prevent Sergeant Keating from testifying as to police procedure for showing rape victims the penitentiary releasee photobook. The court ruled that the motion would be granted since Officer Miskulin, who was the desk officer on December 30, 1978, would testify.
Defendant's theory of the case was twofold. He presented alibi witnesses and attempted to impeach complainant's identification testimony via: evidence of discrepancies and the inference that she had viewed defendant's exhibit one yet failed to recognize his picture.
Sergeant Robert Keating testified first for the defense. He stated that he had been assigned to Area 4 Homicide/Sex of the Chicago Police Department since April of 1976. Keating stated he was familiar with photograph books stored at that location and shown to crime victims. He identified defendant's exhibit one as a photo book kept at the Area 4 station. Keating further testified that the photograph image size was generally the same. The image ...