APPEAL from the Circuit Court of Cook County; the Hon.
SYLVESTER CLOSE, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendants, Clarence Faulkner and Richard Ford, were charged by indictment with rape, robbery, and aggravated kidnapping. After a bench trial, defendants were found guilty of rape and aggravated kidnapping. Both received sentences of 12 to 18 years. On appeal this court is asked to consider (1) whether the trial court erred when it denied Faulkner's motion to suppress identification testimony; (2) whether the trial court erred when it permitted admission of an exhibit absent necessary foundation testimony; (3) whether defendants' court-appointed attorneys failed to provide effective assistance; (4) whether defendants were proved guilty beyond a reasonable doubt; and (5) whether the trial court imposed upon Ford an excessive sentence.
Ford and Faulkner were arrested pursuant to warrants issued after complainant filed complaints alleging defendants had raped her on May 4, 1975. Prior to trial, Faulkner filed a motion to suppress identification testimony. Complainant previously identified Faulkner at a lineup. Although the lineup occurred after his arrest, no attorney was present. The trial court denied Faulkner's motion.
During trial complainant testified that on May 4, 1975, a Sunday, she was walking east on Chicago Avenue near the intersection of Larrabee. It was approximately 6:30 a.m. She was going to church. Complainant noticed that a car with two male occupants was following her. The car was green with a black top. As she increased her gait the car kept pace. She headed toward a friend's home, but just as she reached the steps of that building, the former occupants of the car grabbed her from either side. She identified Ford as having told her not to scream. She identified Faulkner as having said he would kill her if she did. They dragged her into their car.
Defendants tied a handkerchief in blindfold fashion over her eyes, drove her to an apartment building, and then dragged her to a studio apartment. Once inside the apartment, Faulkner removed the blindfold, threatened complainant's life, and raped her. She could clearly see her assailant's face throughout the 30-minute episode. Complainant testified further that Ford sat in a chair watching the attack until Faulkner removed himself from atop her and told Ford, "She's yours." Ford then raped her. Complainant looked at Ford's face throughout the one-hour ordeal. After she was permitted to dress herself, defendants again blindfolded her and returned her to Chicago Avenue.
Complainant's mother testified that on May 4, her daughter returned from church later than usual and cried repeatedly, "I've been raped."
Robert Gerwig, a Chicago police officer, testified that on July 9, 1975, he and two other officers were investigating a robbery which involved a green and black Mercury automobile. The officers saw such a car parked in front of a house on North Ridgeway, Chicago. Faulkner left that house, approached the officers, and after a brief discussion gave them the keys to the car which they drove to a police station.
Betty Faulkner testified as an alibi witness for her husband. She stated that on May 4 she was confined to her bed while she recuperated from surgery. Defendant Faulkner had fallen asleep late the night before and arose earlier than she to prepare breakfast for their four children. She awoke at about 11:30 that morning.
Defendant Faulkner was the last witness to testify. He denied any participation in the charged offenses. He stated he was at his home during May 4. He also stated he owned a "black over green Mercury." In addition, Ford and he knew each other socially.
It was stipulated that Dr. Thornton examined complainant at Cook County Hospital on May 4, and he found neither evidence of sperm nor trauma requiring surgical correction.
At the conclusion of the evidence, defendants moved for directed findings in their favor. The trial court denied those motions and after argument of counsel found defendants guilty of rape and aggravated kidnapping. Motions for new trials were denied. The trial court then recited the nature of the crimes, the relevant criminal records of defendants, and their opportunity for rehabilitation. It concluded that defendants should be removed from the community for a considerable length of time and sentenced them accordingly.
Faulkner first contends the trial court erred when it denied his motion to suppress identification testimony. *fn1 He contends that his constitutional right to have counsel present during a lineup identification was activated by his arrest pursuant to a judicially issued warrant. In the absence of counsel, he concludes, any ...