APPEAL from the Circuit Court of Cook County; the Hon.
THEODORE SWAIN, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant Arthur Lee Huffman was convicted of rape and aggravated kidnapping in a jury trial and was sentenced to concurrent terms of 10 to 20 years. On appeal he contends: (1) he was not proven guilty beyond a reasonable doubt; (2) the State's failure to provide material evidence concerning a photographic identification of the defendant constituted a denial of due process; (3) identification testimony at trial should have been suppressed as the product of an illegal seizure of photographs from defendant's home; (4) testimony concerning a lineup identification of the defendant should have been excluded because the lineup was impermissibly suggestive and defendant was not afforded counsel at that lineup; (5) the in-court identification of the defendant should have been excluded as the product of prior unduly suggestive identification procedures.
Before trial defendant moved to suppress any trial testimony concerning a lineup identification as well as any in-court identification of him. This was based on the allegation that the police had suggested to the identifying witness that defendant had committed the crime. Defendant also generally alleged that the identification was made in violation of his constitutional rights under the sixth and fourteenth amendments.
At the hearing on the motion to suppress defendant's sister testified that on May 10, 1974, the police came to her home and obtained two photographs of the defendant. One picture, depicting defendant standing with four friends, two of whom were wearing hats, was taken by the police from a photo album. The other, depicting the defendant standing alone in front of a building, wearing a "sick" T-shirt, was given to the police by defendant's sister in an effort to persuade them they were taking the wrong brother from the home.
The complaining witness, Georgia C., also testified at the hearing. On April 22, 1974, the police showed her three or four books of photographs but she was unable to identify anyone. On May 12, 1974, two police officers whose names she could not recall came to her home and showed her three to 10 photographs. She viewed them twice and selected one. On May 15, 1977, she viewed a lineup, identified the defendant, and then signed a complaint against him.
It was stipulated that certain police officers *fn1, if called at the hearing, would testify that they had no recollection of having shown the complainant a stack of photographs at any time prior to her identification of the defendant in a lineup. In argument on the motion defense counsel contended that the lineup identification was tainted because it could be inferred that the police had included the two photographs taken from defendant's home in the small group of photographs shown to the complainant, thus suggesting to her that defendant was her attacker. The trial court held there was insufficient evidence to support this claim and denied the motion.
After the jury had been selected and prior to opening arguments defense counsel moved to dismiss and quash the indictment because of the failure of the State to produce the photographs shown to the complainant on May 12, 1974, as well as the officers who showed them to her. In argument the State informed the court that their efforts to locate the photographs or the officers had been unsuccessful. This motion was also denied.
At trial Georgia testified that on April 13, 1974, at about 8:15 p.m. she took a bus from her home to go to her boyfriend's apartment at 8150 Dobson in Chicago. They had planned to attend a party together and she called him before leaving to tell him she was coming. She left the bus at about 9 p.m. at 79th and Ellis and walked one block east to Dobson. It was dark but the street lights were on. At 80th and Dobson she saw a young black man across the street. As she continued south she noticed he had crossed the street and was walking behind her. He then passed her and turned to look at her. There was lighting from the street lights and from a light on the side of a building which shined onto the street. She described the man as six feet tall, 150 to 160 pounds, age 22 to 24, with a medium brown complexion, a medium Afro, a moustache, hair under his chin, wearing dark pants and a plaid jacket. She identified the defendant in court as the man she had seen. He continued to walk about five feet ahead of her until she reached her boyfriend's apartment building. That building's entrance had an outside door leading to a vestibule and a second door inside the vestibule which led to the apartments. At the outside door Georgia noticed that defendant had stopped and turned around to look at her. She entered the vestibule and found the inner door to be locked. She then heard footsteps behind her and a man, whom she subsequently determined to be the same one who had followed her, grabbed her and held a sharp object to her head. She could not see the object but believed it could have been an icepick or a knife. The man demanded her money, threatening to kill her if she made a sound. She complied and he told her he would release her outside. He led her outside with his arm around her neck and the object held to her head. He then told her he would have to take her further to make sure he got away. Georgia was taken to the top of a small slope and across some railroad tracks. There was a street light about five feet away and when they stopped she was able to observe the defendant's face for two to three minutes as he looked around. They crossed back over the tracks and when defendant bent down to place something in his sock Georgia fled, screaming for help. She stumbled and fell and defendant caught up with her, telling her she had made him mad. He led her to a small three-sided shed with a mattress inside. The shed was waist-high and there was a street light about 15 to 20 feet away, enabling Georgia to see the defendant's face as he stood in front of her. He ordered her to remove her clothing, slapping her when she begged him to release her. She then took down her pants and panties so that one leg was out. Defendant unsuccessfully attempted an act of intercourse with her in a sitting position, successfully had intercourse with her in a prone position, and finally unsuccessfully attempted intercourse in a standing position. At several times during these acts Georgia was again able to view the defendant.
Afterward defendant told her she could go. She put on her pants and ran until she came to the end of a viaduct from which she jumped about 13 feet to the sidewalk. This hurt her back and she could not get up but she saw several people in the area and screamed for help. Several men took her to her boyfriend's building. She gave one of them his telephone number so he could be called to open the door. Her boyfriend came down and carried her up to his apartment. As he took her upstairs she told him she had been raped. Georgia was taken to a hospital where a doctor examined her. She spoke to two police officers, telling them what had happened and giving a description of her assailant. On May 15 she viewed a lineup and identified the defendant.
On cross-examination Georgia stated that at the preliminary hearing she testified that at the hospital she had stitches in her vagina. At trial she said she did not know whether the doctor found any lacerations in her vaginal area, but she did recall that it was "torn." She also stated that as a result of her jump from the viaduct she had a lot of tenderness in her back and her left foot was scratched.
Georgia's boyfriend testified that he first saw her that evening downstairs from his apartment at about 10 p.m. Two men were holding her up, her hair was messed up, and she was shaking all over and crying. In her hands she had her purse and her underwear. As he carried her upstairs she told him she had been raped.
The doctor who examined Georgia that night testified that he found sperm to be present. Georgia also had an abrasion on her left foot and minimal tenderness of the lumbosacral spine area. He found no vaginal lacerations and his records indicated that no surgical sutures had been made.
Investigator Jerry Springer of the Chicago Police Department conducted the lineup viewed by Georgia. It contained five young black males including the defendant. Defendant may have been the tallest and may have been the only one wearing a suit, but all were dressed differently. None had goatees; defendant and two others had Afro hairstyles. Three wore glasses, but not the defendant. ...