APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding.
MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Timothy Tate, was convicted by a jury in the circuit court of Madison County of the following crimes: rape; deviate sexual assault; aggravated battery; aggravated kidnaping; unlawful restraint; burglary; and armed violence. Concurrent prison sentences were imposed ranging from seven years for burglary to 40 years each for rape and deviate sexual assault. Defendant was not sentenced on the unlawful restraint conviction. On appeal defendant contends that the evidence was insufficient to sustain the convictions beyond a reasonable doubt, that he was denied effective assistance of counsel, and that he was improperly convicted of both aggravated kidnaping and unlawful restraint.
The evidence introduced at trial by the State detailed the events occurring during the early morning hours of February 23, 1979, which gave rise to the instant offenses. A teen-age girl had spent the evening baby-sitting at Mrs. Frances Abel's residence in Alton, Illinois. At approximately 2:30 a.m., the girl completed a telephone call to her fiance and retired, sleeping on a couch in the living room of the home of Mrs. Abel. As something brushed against her leg, she awoke and noticed a person carrying a bag who was bending over her as she lay on the couch. The person informed her that if she did not remain quiet she would be killed. The intruder reached up the girl's skirt and removed her underpants. He left her momentarily and went through other rooms in the house. When he returned, he told her that she would have to accompany him for a block or two. She was led outside through a window. It was a cold, dark, and foggy night. The girl was barefoot and was clad only in a skirt and blouse. A blanket covered her head. During the time the intruder was in the house the girl was unable to see his face.
As the intruder led the girl outside, the blanket continuously covered her face, preventing her from seeing him. The intruder took her to a soccer field a short distance away from the Abel home and raped her. Next, he forced her to walk to the far end of the field and lean over a wooden railing. There she was subjected to anal intercourse. While in that leaning position, she was able to see between her legs and observed the skin of her assailant's exposed lower legs. She was able to discern that her assailant was a light-complexioned black. She was pulled from the railing only to be forced to lean over it again. At this time she was choked with a leather strap until she lost consciousness. After the girl revived, she was pulled to her feet by her assailant. At this moment the blanket slipped from her face and she was able to see her assailant from the waist up. She noticed that he was wearing a black jacket. This view also permitted her to observe his face for several seconds before the blanket was placed over her head once again. The assailant then led her away from the field up a steep gravel hill, which she sensed to be a street. He took her to the rear of a house where she was ordered to sit down on a concrete slab. When they rounded the corner of the house, she thought her assailant threw something against it. Her assailant wrapped a green garden hose around her feet and told her not to leave or she would be killed. He was gone no longer than six seconds; and when he returned, the girl was taken back toward the soccer field by a different route. In a field beyond the soccer field, she was raped again. The girl also was forced to engage in oral sex with the assailant; however, she was unsure at what point in her ordeal this occurred. After the rape in the field, she was commanded to place her hands above her head. When she complied, the assailant attempted to cut her throat with an object she thought to be a knife. She grabbed for the object and a struggle ensued. The victim sustained an even laceration across the fingers of her left hand when she gripped the object. After pleading for her life, she was ordered to sit down and count to 200. She watched the back profile of the assailant as he left her; and when she thought it was safe, she fled to Mrs. Abel's home.
Mrs. Abel awakened to the sounds of the girl pounding on the front door and admitted her into the house. The girl was drenched, bloody, and hysterical. Mrs. Abel guessed the time to be approximately 3 a.m. when she came to the door. Mrs. Abel immediately telephoned the police, and Officer Moore arrived minutes later. His report of the incident reflected that his time of arrival was 4:21 a.m. The girl estimated that she awoke to find the assailant in the Abel home at about 3 a.m. and that 1 1/2 hours elapsed from then until she returned to the Abel home.
The girl was admitted to the emergency room of the Alton Memorial Hospital for treatment. The examining physician discovered multiple abrasions and bruises on her neck. Her neck was slightly lacerated on the left side as well. The girl sustained multiple scrapes and abrasions on her posterior, thighs, and knees. A gynecological examination revealed swelling, redness, rupture of the hymen, and some bleeding. According to the doctor, these latter symptoms suggested recent sexual intercourse. A test performed to determine the presence of sperm proved negative; however, the nurse who conducted the test testified that it was not unusual for a rapist to fail to ejaculate.
After her treatment at the hospital, the victim was interviewed by the police. She described her attacker as being a light-complexioned black man of medium build, between 5 feet 11 inches and 6 feet 1 inch in height. She believed he was not over 24 years of age. At trial she identified defendant as he man who assaulted her. She testified at trial that defendant was thin and was between 6 feet and 6 feet 2 inches in height. She described to the police the house to which she was taken as being white with two stories. According to her, in the back of the house were a concrete slab, a green garden hose, two trash cans, and something resembling a trash burner. At trial she stated that the house was "tan brick" in color. She also described the route she took and mentioned the steep street she walked up before arriving at the house.
Officer Galloway testified that after he spoke with the girl, he and Officer Logan drove around the area of the soccer field and located a house matching the description supplied by the girl. The house was at 2719 Powhatten Street, about one block from the soccer field. Officer Galloway described the house as being light-colored beige with white trim in color, with a concrete slab, a green garden hose and a couple of garbage cans in the back yard. The house was occupied by defendant and his family. The girl did not give the officers a street name, but they checked the houses on Powhatten Street because it was on a hill. Minutes after examining defendant's house, the officers returned to the area with the girl and Mrs. Abel. The girl directed the police to drive up Powhatten. At the crest of the hill she thought she saw the house she was looking for. A yellow automobile pulled into the driveway of this house, and the driver spoke briefly with the officers. When the victim was taken to the back of the house, she was positive it was the house she had been taken to. She then became very upset and was taken back to the police car. This house was at 2719 Powhatten Street and was defendant's home. The girl saw the driver of the yellow automobile come out of the house and turn and look at her from a distance of 100-150 feet. The man got in his vehicle and drove past the police car. At this point the girl informed the officers that she was positive that he was her assailant. The man was wearing a white jacket when he went into the house and a black jacket when he came out. The victim's identification of defendant came after she identified defendant's house.
Janice and Christine Stevenson related that they lived at 2711 Powhatten Street, two doors away from defendant's home. They testified that while cleaning their garage on February 23, they found a pair of panties, later identified as belonging to the victim, and numerous personal effects which belonged to Mrs. Abel. Mrs. Abel's purse was discovered between the bricks of the Stevenson's back porch. The girls retrieved the items from the garage and turned them over to the police who were at defendant's house.
On appeal, defendant first contends that the evidence at trial did not support the convictions beyond a reasonable doubt. He asserts that circumstances surrounding the attack upon the girl precluded her from accurately identifying her assailant, thereby rendering her testimony unreliable. According to defendant, this unreliability is underscored by various discrepancies between the girl's trial testimony and the statements she made to the police shortly after the attack. Defendant concludes that the inherent unreliability of the testimony of the single eyewitness to the crime and the absence of any direct physical evidence tying defendant to the attack militate against a finding of guilt beyond a reasonable doubt.
In our consideration of this issue on review, we are bound by the decision in People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, in which our supreme court stated:
"A reviewing court may not substitute its judgment for that of the trier of fact `on questions involving the weight of the evidence or the credibility of the witnesses [citations], and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt.' (People v. Stringer (1972), 52 Ill.2d 564, 568.) Finally, `where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused under such circumstances as would permit a positive identification to be made.' 52 Ill.2d 564, 569." 67 Ill.2d 564, 578, 367 N.E.2d 1313, 1320.
Defendant asserts that the victim was not afforded an adequate opportunity to positively identify the assailant because her only view of his face was of a few seconds duration under adverse weather conditions impeding her power of observation.
According to the evidence, the girl on three occasions viewed a part of the assailant's body. Initially, she was able to see the assailant's lower legs while she was leaning over the wooden rail in the soccer field. From this view she was able to discern that the assailant was a light-complexioned black. The next opportunity to see the attacker occurred after the girl regained consciousness after being choked. As she was pulled to her feet the blanket no longer covered her eyes, allowing her to view the assailant's face for a few seconds from a distance of no more than "a step away." Finally, she observed the rear profile of the assailant as he walked away from her terminating the encounter. The girl's view of the assailant's face occurred after she had been raped twice. Since her entire ordeal lasted roughly 1 1/2 hours, it is apparent that prior to this view a considerable length of time elapsed during which the girl's eyes had an opportunity to become accustomed to the darkness. The evidence also indicates that a row of street lights was situated approximately 150 feet from the area where the view took place. The adjustment of the girl's eyes to night vision, the distance ...