APPEAL from the Circuit Court of Madison County; the Hon.
HORACE L. CALVO, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the Circuit Court of Madison County, defendant, Larry Paul Moore, was convicted of rape, armed robbery and theft of over $150. He was sentenced to concurrent prison terms of 40 to 80 years for rape, 40 to 80 years for armed robbery and 3 to 9 years for theft over $150. From his conviction and sentence, defendant appeals.
On March 16, 1977, a man wearing a ski mask robbed a Wood River family at gun point and raped the family's 16-year-old daughter. The evidence established that the daughter was returning home from the family's business with receipts in a paper bag when she was stopped in her driveway by a masked assailant with a gun, who took the money and led her to the house. The father and mother were in the living room watching television and observed the daughter enter the house accompanied by the masked gunman. The gunman instructed the members to get onto the floor and proceeded to tie the parents' hands. He informed the family that other people were coming with a truck to take the furniture. Because these people would not be masked, the intruder put pillowcases over their heads. About this time, the second daughter arrived home only to be confronted by the gunman, who put a pillowcase over her head, took her watch, and tied her up.
The man removed the pillowcase from the first daughter's head and asked her to help him collect the family's valuables. After he had taken a watch from a dresser, he instructed her to replace the pillowcase and led her to the master bedroom where he told her to lie down. When he then removed his ski mask and went into the hallway, the daughter said that she could see his face through the pillowcase because of the bright hall lighting. He then replaced his mask and entered the room. On the man's persistent and threatening request, the daughter removed her clothing and was told to lie face down on the bed. He asked her to have intercourse with him, but she refused. He then went in and out of the room several times. On one of these occasions, she said she could see him from underneath the pillowcase, which was "pulled up rather high," standing in the doorway without his mask. She saw him for a few seconds under bright hallway lighting before he returned to the dark bedroom. She identified defendant as the person she saw that evening. After the daughter repeatedly refused his persistent requests to have intercourse, he punched her in the stomach and she screamed. The father, hearing her scream, yelled, "Sir, you said you wouldn't hurt her." The father got up off the floor, pulled the pillowcase over his head and saw the intruder coming down the hallway without his mask. When the intruder was only 10 feet away, the father replaced the pillowcase on his head. He likewise identified defendant as the person he had seen. The father could not explain or demonstrate how he had removed and replaced the pillowcase with his hands tied.
The man returned to the bedroom and once again demanded to have sexual intercourse. After she was threatened and punched numerous times she submitted to his request. The daughter then got dressed and returned to the living room. The intruder gathered the valuables he had taken and fled from the scene in the family's automobile.
The daughter was taken to the hospital where the examining physician discovered two lacerations of the hymen which was still bleeding. Furthermore, it was determined that the stains on the bedding contained semen and the same blood type as defendant's.
Cindy Pasley, a friend of defendant's, testified that prior to the date of the incident, defendant had told her that he was going to rob the family in question and that he had been to the house to look it over. She also stated that defendant came to her apartment after the robbery, explained the occurrence of events, and showed her some of the jewelry. A few days later, Hughey McCloud, defendant's half-brother, asked her for the jewelry, but she denied having it. He then searched the house and found the items in the basement. Approximately a week later, McCloud gave the police some jewelry in his possession. Among the items given to the police were the second daughter's class ring and two of her watches.
Ms. Pasley further testified that when defendant came to her apartment following the robbery he was wearing blue jeans and a "blue jean jacket with something on the back." Defendant later telephoned her and told her to testify falsely about the clothing he had worn on the night in question.
The day following defendant's arrest, the Wood River police were given permission by Irene Lawrence, defendant's grandmother with whom defendant lived, to search her home. They seized a pair of suede ankle high shoes, a blue insulated jacket and a green ski mask among other items from defendant's room. Two days after the robbery, the family was shown the jacket and shoes taken from the grandmother's home. Although no positive identifications were made, the mother and the first daughter identified the lightweight, insulated jacket as being similar in appearance to one worn by the intruder while the father and the same daughter found the shoes to be likewise similar. At trial, the first daughter was able to make a positive identification of the shoes. The mother was unable to make such an identification, but stated that the intruder was wearing suede, ankle high shoes.
Defendant testified on his own behalf. He denied participating in the offenses committed against the family and denied conversing with Ms. Pasley and showing her any jewelry. He asserted that the shoes and jacket belonged to his half-brother, with whom he shared the room.
Defendant first argues that the trial court erred in allowing the in-court identifications of defendant because they were based upon suggestive pretrial viewings of defendant in a photograph array and lineup, and had no independent basis. The facts established that immediately after the crime, the victims were shown a photo array composed of mug photos. Defendant's picture was not included in this array and the victims were unable to make any positive identifications. From information supplied by the family, Sergeant Eldon McEuen of the Wood River Police Department formed a suspicion of a possible suspect and put together a new photo array which included the defendant. In the meantime, the father aided a police officer in constructing a composite drawing of the intruder. McEuen then telephoned the father and the first daughter and asked them to come to the police station to view the array which he said included a picture of the suspect. Neither the daughter or the father could remember McEuen telling them that a picture of the suspect was part of the display.
The first daughter arrived and viewed the eight pictures, without her father being present. She initially chose two pictures, one of them of defendant, as depicting similar characteristics of the intruder and then settled on the photograph of defendant as the subject. After she made a specific reference to the intruder's eyes and ski mask, McEuen made a cardboard cutout and covered all but the eyebrows, eyes and nose of the chosen photograph. He stated that the daughter then reaffirmed her identification. Although McEuen contended that the daughter viewed the photo array prior to the composite drawing, the daughter testified at the suppressing hearing that she first saw the drawing. Later at trial, she testified that she could not remember whether she had seen the composite drawing before or after the photographs. In any event, the daughter was able to tell the police officer how the composite drawing could be improved so that it would better resemble the assailant. The daughter also testified that the cardboard cutout was placed over the drawing and not over the photograph of the intruder.
The father also viewed the array and chose the same photograph as selected by his daughter. Ten days later, the father and daughter viewed a lineup which included defendant. They both positively and conclusively identified defendant as the assailant.
1, 2 The law is clear "that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Simmons v. United States, 390 U.S. 377, 384 19 L.Ed.2d 1247, 1253, 88 S.Ct. 967, 971 (1968).) Applying this standard to the present case, we find that the photographic and lineup identification procedures were not unduly suggestive. Furthermore, it is clear that the identifications of defendant by two of the victims were based upon their observation of him at the scene of the crime.
3, 4 Defendant, however, contends that the identification by photograph was "tainted" when Sergeant McEuen informed the father and daughter that a suspect was to be included in the display; when McEuen placed a cardboard cutout over the face of defendant's photograph; and when the daughter observed the composite drawing prior to the photo display. The fact that the victims were told that the police had a suspect could not be unduly "suggestive" as the officer was merely stating the obvious. (People v. Madden, 52 Ill. App.3d 951, 368 N.E.2d 384 (1st Dist. 1977).) The victims were well aware that the police would not go to the trouble of arranging a photograph display unless they had a suspect in mind. (People v. Martin, 24 Ill. App.3d 710, 321 N.E.2d 368 (1st Dist. 1974).) We likewise find no impropriety when Sergeant McEuen utilized a cardboard cutout simulating a ski mask. The testimony is clear that the daughter identified the photograph of defendant prior to the utilization of this cutout and only reaffirmed her ...