APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
P. CAWLEY, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, charged with rape, deviate sexual assault and aggravated kidnapping, was denied hearings on his motion to suppress a lineup identification as the fruit of both an illegal arrest and suggestive identification procedures and on his motion to suppress photographs as the fruit of a statement he made while unaware of his constitutional right to remain silent. While the jury deliberated, the trial court resolved for it a question of fact which bore on the credibility of the complaining witness. These rulings denied the defendant a fair trial. His convictions are reversed and the case is remanded for hearings on his motions and for a new trial.
On the evening of October 9, 1974, the complaining witness was abducted, assaulted and raped as she returned home from a meeting at the local high school. A car followed her into the parking lot of her apartment complex, and the driver approached her when she reached her building's front door. He asked for directions to a nearby address, but when the victim turned to indicate the proper way to go, he hit her on the side of the face and dragged her to his car. The man said he had a knife and threatened to kill her. The victim was placed in the front seat of the car with her head pushed down so that she could see only the dashboard. After a 90-second drive, the driver stopped in an unlighted area. There the victim was forced to commit two deviate sexual acts and was raped. After the rape, the man, who was black, stated that he was looking for a white person to kill, that he was from Missouri and that his mother had been raped by a white man there and died. He then asked aloud why he was doing this and what he was trying to prove. The attacker told his victim that he would not kill her, and she got out of the car and walked back to her apartment.
The victim told her husband she had been raped and called the police. She gave them a description of the attacker and of the man's car. The officers took her to the hospital where she was examined and released. The victim looked at several hundred photographs at the police station, but was unable to pick out her assailant. She told officers she thought the man might have been a member of the Chicago Fire, a professional football team. Several members of that team lived in her complex, but no pictures of team members were shown to her.
Five months later, Investigator John Smith of the Cook County sheriff's police learned of another rape. The victim of that attack prepared a composite drawing of her attacker. The next day, March 13, 1975, Smith showed 10 photographs to the victim in this case. She said one of the photographs (not the defendant in this case) resembled the man who attacked her, but, because the photographs were old, she would have to see the man in person to be sure. Police obtained an arrest warrant but did not seek a search warrant. Instead, they waited until 4:30 the next morning to break into the man's house and arrest him. He was placed in a lineup but released when the victim in this case did not identify him as her assailant.
After the lineup, the victim supplemented her description by telling Smith that while being raped she had felt an abnormal growth on the man's scrotum. Her testimony at trial was that she told the police about this additional feature on the day of the March 14 lineup. She explained the delay in adding this detail by stating that she had been embarrassed to tell police about it.
On March 29, 1975, Smith noticed the defendant walk into the Niles police station to inquire about a Cook County wheel tax sticker. Sampson appeared to fit the description given by the rape victim, including her observation that the man was articulate. Smith heard the defendant speak "devoid of a Southern accent," and so followed him home. Smith continued his investigation in the case for 6 weeks. On May 13, 1975, he told Officer Wojtas, a patrolman, to bring the defendant to the station. Wojtas obliged by waiting in his squad car for Sampson outside the defendant's home and stopping him when he arrived home from work. Wojtas told the defendant he was receiving a ticket for having no wheel tax sticker on his car and demanded that Sampson accompany him to the police station. In fact, the sticker violation was a ruse and the arrest was actually being made for rape.
Neither Wojtas nor Smith had sought a warrant for the defendant's arrest. After the arrest, Sampson was never informed of the true offense for which he had been taken into custody. At the station Sampson was not advised of his Miranda rights. In response to interrogation he told police that he had a "hair bump" (caused by an ingrown hair and common to black persons) on his scrotum. The hair bump was then examined and photographed. Following the photographing, defendant was for the first time given his Miranda rights and later placed in a lineup. The victim in this case observed the lineup and said that the defendant was similar to her assailant though he appeared to have gained weight. She did not make a positive identification of Sampson that day. At trial, referring to her failure to make a positive identification at the lineup, the victim explained that she knew the defendant was her assailant, but did not want to go through with signing a complaint. She went home and talked to her husband and to friends who advised her that if she knew who had attacked her she had to get involved and identify him. The victim said she was "pressured" by these friends, and following her talks with them she called police by telephone the next day and made a positive identification of the defendant. On May 16, 1975, the victim was taken to the Niles courthouse to observe the defendant's bond hearing.
The defendant was first tried for the later rape that Smith had been investigating at the time of Sampson's arrest. The victim in this case as well as the victim in that case testified and each identified the defendant as her attacker. Nevertheless, the jury acquitted Sampson. Because of the acquittal, the denial in that case of the defendant's pretrial motion to suppress the identification as the fruit of an illegal arrest was never appealed.
The State then proceeded to trial on the instant charges. Defendant moved before trial to suppress the lineup identification, his statement to police and the photographs of his scrotum. He argued that the lineup was the fruit of a ruse arrest made without probable cause to arrest for rape. The trial judge ruled that the issue of the validity of the arrest had already been litigated in the State's favor in the prior case, and denied defendant's motion without a hearing. The State proposed that it would not use Sampson's statement to police at trial, and so the motion to suppress the statement was also denied without a hearing. The trial judge finally ruled that Miranda did not apply to photographs and so denied the motion to suppress the photographs, rejecting without a hearing the defendant's argument that the photographs were the fruit of the illegally obtained statement.
After the jury was selected and sworn, the defendant moved to suppress the lineup identification on the ground that it was the result of suggestive identification procedures. Counsel explained the delay in filing the motion by referring to two documents tendered to the defense in discovery. The first, an "Additional Supplemental Report" of the lineup in narrative form, had been given to the defense many months before trial. Counsel argued that this report suggested that the victim made a positive identification of the defendant immediately after viewing the lineup. The second, the actual lineup report, was not produced by the prosecutor until the eve of trial. It explicitly stated that no positive identification was made at the lineup. After examining the documents, the trial court held that the defense should have understood the supplemental report as stating that no positive identification had been made, and without a hearing denied the motion to suppress as untimely.
Trial then commenced. After hearing all the testimony the jury retired to deliberate. The main issue in the case was credibility. The victim identified the defendant as her assailant, while he presented an alibi defense, claiming that he was in a restaurant 10 miles away at the time of the attack. Two of Sampson's business associates agreed that he was in the restaurant that evening, but depending on what time the three left the restaurant he might have reached the victim's apartment complex in time to commit the offense. The defense also argued that the identification was not credible. The victim's description of the attacker's car conflicted with photographs of Sampson's car. She failed to notice Sampson's solid gold front tooth, though she said she would have remembered it if she noticed it. She failed to either describe the growth she felt on the attacker or identify the photographs taken of the defendant's growth. Sampson claimed that the hair bump he had when arrested had gone away, as they are wont to do. He testified that he did not have such a growth either at the time of trial or at the time of the offense.
The jury sent three requests to the trial court while deliberating. The first asked for a map of the area, marked with the locations of the attack and the restaurant, which had been received in evidence. This was refused. The second made a general request for unnamed ...