APPEAL from the Circuit Court of Vermilion County; the Hon.
PAUL M. WRIGHT, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
A jury in the circuit court of Vermilion County rendered verdicts against the defendant finding him guilty of the offenses of rape, deviate sexual assault, and home invasion in violation of sections 11-1, 11-3 and 12-11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 11-1, 11-3 and 12-11). Judgments were entered on the verdicts, post-trial motions denied and defendant was sentenced to imprisonment, 30 years for rape, 30 years for deviate sexual assault (these sentences to run consecutively), and 10 years for home invasion (this sentence to run concurrently with the others). This appeal followed.
Defendant's principal contention on appeal is that his early admissions to law enforcement officers should have been suppressed pursuant to his motion made for that purpose on the ground that he had been seized within the meaning of Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248. Other issues raised on appeal will be discussed at a subsequent point in this opinion.
The evidence disclosed that the complaining witness was awakened in her apartment at about 3 a.m. by a man who was holding an iron bar and demanding money. Following threats and a beating, the actions which led to the charges described above occurred. The complainant was unable to give a description of her assailant other than that he was a black man, not very tall, "lean" or "thin built," had a moustache and lips which were "thick and full." In the course of the struggle the complainant was able to seize the iron bar and struck the intruder behind the ear with it. She also bit his hand. Police investigation corroborated the events which she said had taken place, and medical evidence revealed the presence of semen and severe injuries to the face and neck of the complainant.
Later in the morning the police showed to the victim a series of photographs but she was unable to identify the intruder other than pointing out features in the photographs which were similar to those of her attacker. On the basis of her description and on the limited information elicited from her inspection of the photographs, the police compiled a list of eight "possible suspects." Also utilized in making the compilation was the knowledge of certain detectives of local people with criminal backgrounds. Defendant was included in the list.
The police then began to interview the persons on the list by visiting them at their residences. They came to defendant's home in Georgetown on the day following the events in the apartment, and informed him that they would like to talk to him at the stationhouse at his convenience regarding "an entry into a home and an assault on a woman." It was first suggested that he use his own car to drive to the station but defendant elected to ride with the police so that his mother would have the use of his car. He was permitted to clean up before leaving home. He was not arrested, searched or stripped. According to the police testimony, he was simply part of an investigation which would involve at least seven other black men of the same general description.
Upon arrival at the stationhouse, an officer read to defendant his Miranda rights and defendant initialed a form which set forth those rights. At 9:37 a.m. the first interview began and lasted 13 minutes. Defendant's statement was largely alibi in nature and exculpatory as to his wounds.
A second interview began at 10:27 a.m. and lasted about 20 minutes. During it defendant repeated his first story and gave consent to search his car and his room. The Miranda warnings were said to be still in effect.
A third interview, with an affirmation of Miranda, began at 11:30 a.m. and lasted about 14 minutes. There was discussion about a wound on defendant's head which he explained as having resulted from a splinter.
A fourth interview, again preceded by an affirmation of Miranda, began at 1:10 p.m. and lasted four minutes. During the interview defendant was shown a tire iron recovered from his car and apparently marked with blood. He stated that the iron was his and the blood came from an accident when the hood of his car fell upon him. He agreed to a medical examination which revealed several scratches and bruises around his neck, a bump on the back of his head and bruises around both sides of his left middle finger.
At about 4 p.m. defendant was returned to the police station after the medical examination and was placed in a lineup for observation by the victim. She was unable to identify him.
A fifth interview began just before 6 p.m. and lasted until 10:10 p.m. Defendant was again warned of his Miranda rights and agreed to speak with the police. This time he admitted being in the victim's apartment but maintained that the relations were consensual. When asked about the victim's injuries, defendant denied causing them and suggested that she had bumped into something. He claimed that she was uninjured when he left the apartment. Following this interview defendant was booked.
The statement made during this fifth interview was transcribed and introduced at trial as a People's exhibit. At trial, defendant testified that he did choke and beat the victim but denied that the sexual acts were compelled by his violence. Rather, he said, the sexual relations followed the beating in order for the parties to make up.
• 1 Defendant on appeal argues that his case is controlled by Dunaway. We agree. That case is factually close to the instant one. In Dunaway, the officers admitted that they did not have enough evidence to obtain a warrant but proceeded to pick the defendant up and bring him in to the station. He was not told that he was under arrest, although the officers testified that he would have been restrained if he had attempted to leave. The Supreme Court discussed the requirement of probable cause for arrest and the narrow exception involved in Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868. The court found no facts in Dunaway which would justify a Terry-type ...