APPEAL from the Circuit Court of Madison County; the Hon.
ANDREW A. MATOESIAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the Circuit Court of Madison County, defendant, David Gray, was convicted of rape, armed robbery and attempt (murder). From his conviction and sentence defendant appeals.
At trial, the complainant testified that she was home alone at 5:30 p.m. on March 29, 1978, when a black man came by to see a motorcycle which she had for sale. After examining the bike in the garage, the man asked to use the telephone. In the living room, he grabbed complainant and dragged her to the kitchen where he picked up a butcher knife from behind the kitchen sink. He then forced her into the bedroom and raped her. She was allowed to dress but was threatened with the knife and forced to give him money and jewelry. He then pushed her onto the floor and stabbed her 33 times. After he left, she observed that the telephone had been pulled from the wall.
The complainant testified that her assailant wore a shirt with a brown and green floral pattern on a white background, dark pants with thin white stripes, shiny plastic high-heeled wine-colored shoes and a gold earring in his left ear. Complainant further testified that this man was the same person who had come to her home at 9:30 a.m. on March 23, 1978, to ask about a car on her neighbor's driveway. She informed him that the car belonged to her neighbor, Lyman Wallendorf, but added that she had a motorcycle for sale. The man then went next door where he discussed with Mr. Wallendorf the possibility of purchasing the automobile.
Both Lyman Wallendorf and complainant were asked to identify, if possible, the man from an array of photographs and lineup. Mr. Wallendorf picked defendant out of each indicating that he looked familiar, but was unable to make a positive identification. Complainant viewed the photograph array from her hospital bed and after narrowing the field of seven pictures down to two, she indicated that defendant was the man. She likewise identified defendant as her assailant at the lineup and at trial.
The defense presented evidence that defendant was not at complainant's residence at the times she had specified. On March 23, 1978, defendant was employed by the Salvation Army, which is 1.7 miles from complainant's home. His time card indicated that on this date defendant had worked from 8:33 a.m. until 1 p.m. Mildred Glassey, an employee of the Salvation Army who kept track of defendant's time, testified that when she arrived at 9 a.m. that morning she saw defendant buffing the hall outside her office. She added that she had occasion to see defendant during the morning hours because her office looked out onto the hall where defendant worked and because she periodically asked him to carry in donated items. Neither Ms. Glassey or defendant's supervisor, Captain Ronald Gorton, discovered defendant to be missing or away from his work without permission on the day in question or at any other time; however, Ms. Glassey did not testify that she saw him at 9:30, the alleged time defendant first visited complainant's home.
Defendant's parents; defendant's girlfriend, Sarah Gilbert; and Sarah Gilbert's mother testified that at approximately 5:30 p.m. on March 29, defendant, along with Sarah, her mother and sister, drove to defendant's parents' home in which defendant also lived. Defendant and Sarah went inside the house while the mother and sister proceeded to Delores Moore's home to attend a birthday party for two of Ms. Moore's grown children. One of these children, Sheila Moore, whose birthday was on April 3, testified that though she could not recall the date of the party she was "pretty sure" that it occurred on a date later than March 29, because the parties were generally held after the birthdays.
Defendant's parents and Sarah Gilbert testified that defendant and Sarah were together at the Gray residence until 10 p.m. At that time, Sarah called a taxi and went home. A taxi log book entered into evidence reflected one ride from defendant's home to Paul Street, the street on which the Gilbert's lived, at 10:15 p.m. on March 29.
Scientific evidence was also introduced at trial. Certain tests involving a comparison of sperm and blood stains found in complainant's home with defendant's blood were termed inconclusive as was a comparison test of foreign hairs found on complainant and hair from defendant. The only clear fingerprints found in the residence were two prints discovered on the motorcycle touched by defendant. They did not match defendant's fingerprints.
James Legate, a paid Illinois Department of Investigation informant, testified that he was currently imprisoned in Madison County jail for a burglary conviction and that he had shared a cell with defendant. According to Legate, defendant stated to him that defendant, along with a friend, had been to complainant's home on two occasions. The first time there, they had intended to break into the home and rob her but decided not to do it when they saw the next-door neighbor. The second time, defendant's companion raped the complainant, stabbed her and ransacked the house. Defendant watched the rape and stabbing and in addition ransacked the house and took some checks. Legate indicated that during the commission of the crimes, defendant wore gloves and wine colored shoes.
Assistant State's Attorney Don Weber first contacted Legate regarding defendant's case during the jury selection at defendant's first trial, which had resulted in a hung jury. When he asked Legate whether defendant had said anything about the case, Legate replied in the affirmative. Legate then discussed the case with Weber indicating that he would say anything "to keep out of the penitentiary." According to Legate, Weber told him he would "see to it" that he did not have to go to prison. Thereafter, Weber filed a motion to reduce Legate's term of imprisonment. Legate indicated that based on a conversation he had with Weber he expected to be released from prison within one or two weeks of defendant's trial.
1, 2 Defendant contends that his conviction must be reversed because he was not proved guilty beyond a reasonable doubt. The focal point of defendant's argument is the strength of defendant's alibi as compared to the strength of the identification testimony. It is well within the province of the jury to judge the credibility of the witnesses, to weigh the evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the testimony. (People v. Vriner (1978), 74 Ill.2d 329, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L.Ed.2d 296, 99 S.Ct. 2858; People v. Hamilton (1975), 27 Ill. App.3d 249, 327 N.E.2d 35.) This court will not reverse the determination of a jury on matters of credibility unless the evidence is so unsatisfactory as to raise a reasonable doubt of defendant's guilt. (People v. Hamilton.) It has long been held that a positive identification of the accused by a single witness who had ample opportunity for observation is sufficient to support a conviction. (People v. Vriner; People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631.) This is true even though there may have been minor discrepancies in the description of the accused's attire (People v. Smith (1978), 59 Ill. App.3d 480, 375 N.E.2d 941) or testimony raising an alibi defense. (People v. Hamilton.) Furthermore, the jury is under no obligation to believe the alibi testimony over the positive identification of the accused even though given by a larger number of witnesses. (People v. Hamilton.)
3 In the present case, complainant had the opportunity to observe her assailant on two separate occasions under adequate lighting. Her positive identification of defendant was corroborated in part by the testimony of her neighbor, Wallendorf, and the informant, Legate. The jury, having the opportunity to view the demeanor of the witnesses, could reasonably have accepted complainant's testimony and rejected the alibi presented by the testimony of defendant's family and close friends. The alibi was not substantiated by any objective criteria and was weakened by the testimony of Sheila Moore, who believed her birthday party was not held on March 29. Furthermore, it was well within the function of the jury to believe complainant's testimony that she had seen defendant at 9:30 p.m. on March 23 at her home where there was no specific evidence placing defendant at the Salvation Army store at that particular time. Although defendant may have been at the store at 9 a.m. that morning, there was nothing to prevent him from making a brief visit to complainant's home, which was nearby. Accordingly, we cannot say that the evidence was so improbable as to raise a reasonable doubt of defendant's guilt.
4 Defendant contends next that his right to counsel was violated where the testimony of Legate, the informant, as to incriminating statements made by defendant, was procured by the government's undisclosed monitoring of defendant's conversations with Legate while they shared a jail cell. As support for his position, defendant relies upon Massiah v. United States (1964), 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199. In Massiah, the co-defendant of the accused, who had been released on bail, consented to a Federal agent placing an electronic listening device in co-defendant's automobile. The agent then had the opportunity to listen and record incriminating statements made by the accused to the co-defendant, which statements were introduced at trial. The United States Supreme Court reversed the conviction, holding that the admission of these statements at trial deprived the defendant of his right to counsel. The underlying rationale of the holding was that these statements had been "deliberately elicited" from defendant by Federal agents "after he had been indicted and in the absence of his counsel." In interpreting this decision and its progeny, our supreme court has indicated that Massiah "`applies to exclude post-indictment incriminating statements of an accused to government agents in the absence of counsel even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception.'" (People v. Milani (1968), 39 Ill.2d 22, 27, 233 N.E.2d 398, 402, cert. denied (1968), 393 U.S. 865, 21 L.Ed.2d 134, 89 S.Ct. 148 (quoting from Hancock v. White (1st Cir. 1967), 378 F.2d 479, 482).) In Milani, the defendant, while in jail and following his indictment, made an incriminating statement to a jail-mate, who then gave this information to Federal agents. Thereafter, at the request of the agents, the jail-mate reported the contents of each ...