APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Richard Rose, was charged by information with armed robbery, robbery, unlawful restraint, aggravated kidnapping and rape. A jury found him not guilty of armed robbery, but guilty of robbery, unlawful restraint, aggravated kidnapping and rape. The trial court merged the unlawful restraint and aggravated kidnapping convictions into the rape conviction. Defendant received consecutive sentences of 10 to 30 years for rape, and 3 to 10 years for robbery. Defendant appeals.
The complainant testified that at 8 p.m. on January 10, 1976, she was waiting by herself for a bus on the northeast corner of 119th Street and Michigan Avenue, when a man approached her, placed a gun against her stomach and said, "Come, go with me, motherfucker, come, go with me." This man then grabbed her arm and motioned for her to go with him. They began walking north on the east side of Michigan Avenue, but soon crossed to the west side and continued north until they reached 118th Street. Complainant could see this man's face as they walked, because his face was uncovered and the sidewalk was illuminated by street lights. She testified at trial that the man she saw was the defendant, Richard Rose.
When they reached 118th Street, they turned west. While they walked west on 118th Street, defendant repeatedly said, "Always been a white bitch but tonight its got to be a black bitch." Complainant at one point tried to pull away, but defendant stuck the gun further into her side and said, "Motherfucker, if you try anything, I'll hurt you."
Defendant took her to a garage located in the backyard of a house near 117th and Lafayette Streets. There were no lights in the garage, but defendant had a white plastic flashlight which he used while they were inside. Defendant kept peering out the window of the garage, telling complainant he was looking for two men, one of whom defendant said was named "Brown." After a short time, they left the garage and went around to the front of the house, which was two stories, boarded up on the first floor, and with several broken windows on the second floor. They went into the house through a basement entrance. Defendant took her to a rear staircase and then ordered her upstairs to the second floor. When they reached the second floor, defendant told her to go over to a window and see if two men were outside. When complainant did not move, defendant grabbed her and pulled her over to the window. Defendant was unable to see anyone when he looked outside.
Complainant testified that defendant took her to a rear bedroom and ordered her to undress. When complainant refused, defendant told her if she did as he asked, she would not be hurt. Defendant held his gun on complainant while she undressed. Defendant next told her to lie down and said if she did not, he would hurt her. Complainant lay down on the floor and defendant had intercourse with her.
Afterwards, defendant ordered her to get dressed. When she had dressed, defendant told her he was taking her to another building to meet the two men he had previously been looking for that evening. Defendant told her that if these two men identified her, they would kill her.
Defendant took her down the back stairs and outside the house. They walked west along 118th Street until complainant recognized a school-house and realized she was not far from her own home. She pulled away from defendant and ran north on Perry Street, but slipped and fell at an alley entrance. Defendant caught her and said, "Motherfucker, you shouldn't have did that." Defendant hit her with his fist on the head and on the jaw and they both fell to the ground. They fought with each other. As they got up, defendant took her purse, which contained $60, including two $20 bills. Complainant then broke away and ran west down the alley. Defendant screamed at her, "Motherfucker, if you run, I'm going to kill you; motherfucker, if you run, I'm going to kill you."
Complainant ran to her home, where James Lindsey answered the door. When complainant told him she had been raped, he ran outside and she immediately called the police.
The police arrived five minutes later and she told them she had been raped. She described her assailant to them as a black man, dark complexioned, who was approximately 30 to 32 years old, weighed 165 to 170 pounds, and was wearing both a dark knit cap as well as a dark knee-length coat. After this, she and Officer Pierce went to the house where the rape occurred and were joined by Officer Fitzmaurice, who interviewed her. She then went with Officer Pierce to Roseland Community Hospital, where a doctor treated her for a bruise on her face and took a vaginal smear. Her panties were taken from her at the hospital. Officer Pierce corroborated her testimony.
Following her treatment at the hospital, she went to the Roseland Police District station. There she was interviewed and then, accompanied by Assistant State's Attorney Michael Carey, viewed a lineup of five men, all black, all about the same height. Complainant testified that she identified defendant at the lineup as the man who raped her. Carey corroborated complainant's identification of defendant at the lineup.
It was stipulated that if the doctor who examined complainant was called as a witness, he would testify he treated her for a forehead bruise, as well as a contusion of the lower lip, and also made a vaginal examination and prepared vaginal smears. It was further stipulated that if the microanalyst who had examined the vaginal smears and complainant's panties was called as a witness, he would testify that sperm was on both the vaginal smears and on the panties.
Chicago police officer James Fitzmaurice testified that around 10:30 on the night of January 10, 1976, he went to a house near 118th and Lafayette Streets. There he met complainant and discussed the rape with her, after which he went into the house through a front basement door. He walked up the rear staircase to the second floor and noticed the windows there were broken. After he left the house, he and his partner patrolled the area. Around 11 or 11:15 p.m. on January 10, 1976, while in the vicinity of the crime, they saw a black male standing at the corner of 119th and Lafayette Streets. This man appeared to be between five feet six inches to five feet eight inches tall, weighed approximately 150 to 160 pounds, and was wearing both a long dark coat and a navy skull cap. Officer Fitzmaurice approached this man, whom he identified at trial as defendant, and conducted a protective search. He patted down defendant's coat and recovered a toy plastic gun, a white plastic flashlight, a knife and $54 in currency, including two twenty dollars bills, one ten, and four singles. Officer Fitzmaurice stated that the plastic gun resembled a snub-nosed revolver and that the knife looked like a kitchen steak knife.
Chicago police officer Peter Dignan testified that on the night of January 10, 1976, he went to the Roseland Police Station, where he interviewed defendant. He told defendant he was under arrest for rape and gave defendant his Miranda warnings. Then he showed defendant the plastic gun, the flashlight, the knife and the $54. He asked defendant why he was carrying the gun and defendant said, "I don't know why." He asked defendant why he was carrying the knife and the flashlight and defendant said, "I'm just carrying it." He asked defendant where he got the money and defendant said he just had it, but did not remember where he got it, and that he had spent some money that night on an alcoholic beverage. Dignan also testified that before he ever talked to complainant, the defendant told him that he resided at 11818 S. Lafayette with a man named "Brown." He further testified that after he interviewed defendant, he arranged for a lineup involving defendant and four other individuals with physical characteristics similar to defendant's. When the lineup was conducted, complainant pointed to defendant as the man who raped her, and then complainant ran out of the room.
Defendant's sister, Estella Wilson, testified that on January 10, 1976, she and defendant lived with their mother at 11818 South Lafayette Street. That evening defendant left the house alone shortly after 6 p.m., and returned around 7 p.m. After he returned, she played checkers and watched television with him until approximately 9:45 or 10 p.m., at which time they left the house together to go to the drugstore a block from their home. They reached the drugstore and she went in by herself. When she came back outside, she saw that her brother had been arrested.
Defendant's mother, Marcella Long, testified that on January 10, 1976, she was living with defendant and her daughter at 11818 South Lafayette. Defendant left the house that evening between 6 and 7 p.m., but returned within thirty minutes. At around 8 or 8:30 p.m., defendant and her daughter left the house together to go to the Jewel Food Store. She had told defendant and her daughter she wanted them to go to the store for her before it closed at 9 p.m. Her daughter returned home alone around 10 p.m. and told her that defendant had been arrested.
1 Defendant's first contention is that the trial court erroneously denied him a hearing and a ruling on a motion to quash his arrest and suppress evidence. We have examined the record and find that the trial court's disposition of defendant's motion was proper, because defendant failed to meet the statutory requirement that all such motions "be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion." Ill. Rev. Stat. 1975, ch. 38, par. 114-12(c).
2 Even assuming that defendant's motion was timely filed and that the trial court should have held a hearing and ruled on the merits, failure to do so was not reversible error. A trial court's failure to conduct a pretrial hearing on a motion to suppress is not reversible error, even if a pretrial hearing would have been preferable, when upon the entire record the evidence shows that defendant was not deprived of the constitutional or legal rights assertedly denied. (People v. Wade (1979), 71 Ill. App.3d 1013, 389 N.E.2d 1230, appeal denied (1979), 75 Ill.2d 593.) Defendant was not so deprived here.
In his motion to quash and suppress, defendant stated that the police lacked sufficient grounds to arrest him and asked that the physical evidence recovered from him, as well as his in-custody statements to Assistant State's Attorney Carey and Officer Dignan, be suppressed.
3 A police officer may stop and question "any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person * * * has committed an offense" (Ill. Rev. Stat. 1975, ch. 38, par. 107-14) and may search the person for weapons if he reasonably believes that he is in danger of attack (Ill. Rev. Stat. 1975, ch. 38, par. 108-1.01). For a stop to be proper, there must have been specific and articulable facts which, together with inferences from those facts, reasonably justify the stop. (People v. Garza (1976), 44 Ill. App.3d 30, 357 N.E.2d 1264.) A police officer's stop and frisk of a suspect may be proper under circumstances which would be insufficient to establish probable cause for an arrest. (People v. Blakes (1977), 55 Ill. App.3d 654, 370 N.E.2d 869.) In addition, probable cause may be established on the basis of all information possessed by policemen working ...