APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE I. GENESEN, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4) and attempt armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 8-4) and was sentenced to a term of two years' probation with the first 30 weekends to be spent in the House of Corrections. On appeal, she contends that: (1) she was arrested without probable cause in violation of the fourth amendment to the United States Constitution; (2) the police arrested her inside her home without an arrest warrant or probable cause, and the entry into her home was without consent or exigent circumstances in violation of the fourth amendment; (3) the trial court erred in denying her motion to suppress identification evidence resulting from unnecessarily suggestive pretrial identifications of her in a photographic display and a lineup; (4) the closing argument of the prosecutor was improper; (5) the trial court erred in its decision to give a supplemental instruction to the jury; and (6) she was not proved guilty beyond a reasonable doubt.
At the evidentiary hearing conducted on defendant's motion to quash her arrest and to suppress identification evidence, the following pertinent evidence was adduced.
At approximately 9:30 p.m. on March 3, 1977, Claire Toth was walking home from work when her purse was grabbed from behind. She turned and saw three black females behind her. Defendant was approximately an arm's length away, and the other two remained farther behind. Defendant said, "Give me your purse, bitch." Toth replied, "No, you're crazy." As Toth moved backwards, defendant stabbed her with a knife in the left arm. Toth screamed and pulled a whistle out of her purse and blew it. The three assailants fled without the purse. Toth testified the whole incident lasted one minute and she faced defendant almost the entire time. The area was illuminated by street lights and possibly building lights.
Nicholas Jordan heard the scream and the whistle and saw two or three women running down the street. He watched them enter a black over gold late model Cadillac with Illinois license plates 827 877. There were a total of four or five people inside the car, including a male driver. He asked them "Who blew the whistle," and one of the women said, "Some girl back there." The car then drove away.
At the scene of the attack and subsequently at the police station, Toth described the woman to the police investigators who stabbed her as a young black woman, approximately 20 years old, a darker complexion than her own, slender, and weighing 115 to 120 pounds, wearing a yellow plaid winter coat, "a natural, and a type cap that covered her hair." Her attacker was a few inches taller than herself at 5'5".
On March 4, 1977, Officer Richard Crowle ascertained that the car seen by Nicholas Jordan was owned by a John Thomas. He spoke with John Thomas and told him of the attack on Toth and that his car had been identified at the scene. John Thomas told him that his son, Eric, had the car on the evening of March 3. According to Thomas, Eric was with his girl friend, the defendant, that evening.
Between 10 a.m. and 11 a.m. on March 5, 1977, Investigator Crowle spoke with Eric at the Thomas home. Eric admitted he used his father's car on the evening of March 3, but said he and his girl friend Cornelia Thompson along with two other girls saw a movie in downtown Chicago. He was with Cornelia Thompson from 8 p.m. until 3 or 4 in the morning. He did not remember the name of the movie, the names of the other girls or where they lived, or where he had left them off. Eric described the other girls as in their early twenties and dressed in dark street clothes. Crowle concluded that Eric's story was unbelievable and placed him under arrest.
Officer Crowle then proceeded to defendant's apartment, but she was not at home. He then went to the police station across the street, and left directions with the tactical unit that he was seeking defendant in connection with a robbery attempt. He described her to the police officers as "a young girl in her early 20's, about 5'7", 120 pounds, medium brown skin." Crowle directed the officers to arrest defendant. In his opinion, her arrest was justified because Eric Thomas had used her as part of his alibi which Crowle found to be totally unbelievable. Crowle stated: "Well he was using her as an alibi and it was my assumption that she was with him at the time of the robbery."
At approximately 1 p.m. on March 5, 1977, Police Officer Alex Kaider and two other plainclothes officers pursuant to Crowle's orders went to defendant's apartment. They did not have their guns drawn nor did they have a search warrant, but when they went to the apartment, they knew that defendant was wanted for robbery, and that she was a black female, approximately 18 years old and medium complected. When they knocked on the door a woman fitting the description left by Crowle answered. Standing on the threshold outside the apartment, Officer Kaider identified himself as a police officer, and asked if she was Cornelia Thompson. She answered yes. Kaider told her she was wanted for robbery and was under arrest. Defendant asked if she could get her purse and moved back into the apartment. The police officers followed her inside and watched her get the purse. Before leaving the apartment they searched her purse. Nothing was found in the purse. They did not search the apartment.
At the police station, defendant told one officer that on the evening of March 3, 1977, she went to the Chicago Theatre with her boyfriend and saw the movie "Centennial." After defendant was arrested Investigator Crowle took a photograph of defendant at the police station. Crowle then showed Claire Toth a display of 12 or 13 photographs including the recent photograph of defendant. After viewing the spread out photographs, Toth chose three photos that resembled her attacker. One of these three she described as the one "most likely" to be her attacker. It was the photo of defendant. When Crowle asked her if she could make a positive identification from people instead of photos, she said she could. Crowle stated that he would have preferred to conduct a lineup, but was unable to conduct one because of an insufficient supply of suitable participants.
After conferring with an assistant state's attorney, Crowle decided to hold defendant in custody for a lineup. The lineup was conducted approximately between 8 p.m. and 10 p.m. and contained five black females. Defendant was wearing the same clothes at the time of the lineup as when her photograph was taken that afternoon. Upon viewing the lineup, Toth identified defendant as her attacker. Toth stated that at the time of the lineup she was not thinking of the photographs she had previously selected, but that her identification of defendant was based on her viewing of the defendant on the night of the attack. Crowle did not produce the photographs used in the photographic display on March 3, 1977, when he testified at the suppression hearing. The trial court denied defendant's motions to quash her arrest and to suppress identification evidence.
At trial essentially the same facts were adduced along with the following additional relevant testimony.
Claire Toth testified that when she was attacked on March 3, 1977, the area was illuminated by street lights and a nearby building light. She said it was "bright enough to see what's happening, but sometimes the colors are a little distorted." She described the defendant as dark complected. Two women were standing behind defendant at the time of the attack, and one of them, along with defendant, held a knife in her hand.
Diane Woods Herard, defendant's friend for 2 1/2 years, testified that in January 1977 she began to record her daily events in a diary. She used this book to recall the events of March 3, 1977. That evening, she, defendant, and three male friends were at her house. They remained inside the house from 3 in the afternoon until 12:30 a.m. Defendant stayed until the next morning. She never saw defendant wearing a yellow coat, and stated that defendant did not own one.
On the morning of March 5, 1977, defendant called Diane and told her that Eric Thomas, defendant's boyfriend, had called her earlier that morning. Defendant related to her the content of that conversation. Several days later, she learned that defendant had been arrested. It was not until a week before trial, over ...