APPEAL from the Circuit Court of Will County; the Hon. CHARLES
P. CONNOR, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Defendant Undra Hooker appeals from his conviction for rape for which he received a sentence of 30 years' imprisonment.
Following a jury trial in the circuit court of Will County, defendant was found guilty of the rape of Lucy Barga. Lucy Barga, age 16, testified that about 9 p.m. on April 3, 1979, she was walking down a street in Joliet when a man grabbed her from behind, put one hand over her eyes, and held a gun to her head with the other hand. He forced her to enter the back of a van where he covered her face with a green stocking cap tied around her eyes. Another man drove the van. After threatening to kill her, both men in the van raped Lucy and finally released her about midnight. She was later examined at a hospital where a vaginal swab and pubic hair samples were taken.
Also testifying for the State was Charles Byas, defendant's half-brother, who said he accompanied defendant as a driver of the van on the night of April 3. He identified defendant as the man who forced Lucy into the van at gunpoint and generally corroborated Lucy's account. He also testified to the circumstances surrounding a subsequent rape of Sandra Hernandez which occurred on April 27, 1979. He admitted having intercourse with both girls. Sandra Hernandez took the witness stand to describe her abduction and rape by defendant and Byas.
Other witnesses described the movements of defendant and Byas on the night of April 3-4, and forensic scientists from the Joliet crime lab testified to the physical evidence relating to hair samples, blood types, and tests for sperm.
During the trial defendant escaped from the Will County jail, and the trial was recessed for three days until defendant was recaptured. Before the prosecution rested, two witnesses described defendant's escape and his subsequent arrest in Chicago Heights, Illinois.
The defense recalled the forensic scientists for additional evidence and also called some police officers who testified to inconsistent statements by the two rape victims. Defendant presented three alibi witnesses who indicated that defendant was with friends between 9 and 12 p.m. the night of April 3 while Byas was gone with the van. In rebuttal the State called a police officer who told of a statement by defendant when he was arrested saying that he had spent the evening of April 3 with his family.
The jury returned a verdict of guilty on the rape charge. At the conclusion of the sentencing hearing, the court imposed a sentence of 30 years, and this appeal followed.
We shall first consider defendant's contention that the trial court erred in declining to hold a hearing upon defendant's motion to suppress the in-court identification of defendant by Sandra Hernandez on the ground that a suggestive pretrial lineup proceeding and a suggestive pretrial photographic display had tainted any in-court identification. The motion to suppress was denied without a hearing after the trial judge was advised that the same issue had been ruled upon in a separate criminal proceeding prosecuting defendant for the Hernandez rape. In that proceeding, the trial judge (Judge Pistilli) denied defendant's motion to suppress after an evidentiary hearing.
Preliminarily, we note that the State has filed a motion to supplement the record on appeal by adding the report of proceedings of the hearing upon defendant's motion to suppress the identification evidence in the prosecution for the rape of Sandra Hernandez. That motion is taken with the case, and we believe that the transcript is relevant and necessary to our decision of this issue. The motion is therefore allowed. Upon review of the report of the proceedings before Judge Pistilli, we find that he considered defendant's argument that the pretrial photographic procedure was suggestive; he weighed all the relevant factors; and he concluded that the procedure was not unduly suggestive. Judge Pistilli did suppress the lineup identification, not upon the ground that it was suggestive, as defendant has asserted here, but rather upon the ground that defense counsel was excluded. The court then expressly found that the lineup procedure was not suggestive and that there was clear and convincing evidence that Sandra's identification was by independent origin and not influenced by any unnecessarily suggestive procedure.
• 1, 2 As the State points out, the doctrine of collateral estoppel applies to criminal cases as well as civil and serves the laudable purpose of preventing the repeated litigation of the same factual issue. In People v. Williams (1975), 59 Ill.2d 557, 322 N.E.2d 461, the Illinois Supreme Court quoted from Ashe v. Swenson, 397 U.S. 436, 443, 25 L.Ed.2d 469, 475, 90 S.Ct. 1189, 1194, as follows:
"`Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit * * *." (59 Ill.2d 557, 560, 332 N.E.2d 461, 462-63.)
The only basis for relitigating a factual issue is where there has been some additional evidence or a "peculiar circumstance" which warrants reconsideration, or where there is an articulable reason for not presenting relevant evidence at the prior hearing. (People v. Colletti (1978), 61 Ill. App.3d 289, 377 N.E.2d 1276.) Defendant argues that an acquittal of defendant in the first proceeding has been held to be a sufficiently "peculiar circumstance" so as to justify a relitigation of a suppression issue and so, until all avenues of appeal have been concluded, defendant's prior conviction for the Hernandez rape cannot be considered "final." This situation, it is argued, justifies a relitigation of the challenge to the in-court identification of defendant by Hernandez. We think defendant's argument is strained. Defendant was in fact convicted of the Hernandez rape and that conviction should be considered "final" for collateral estoppel purposes. All principles of judicial economy would be violated if we were to remand and require the trial court in the present case to hold a hearing on the same issues as were previously litigated.
• 3 Defendant also claims that he was not proven guilty of rape beyond a reasonable doubt because the State's evidence was weak in three respects which, if taken together, would create a reasonable doubt of defendant's guilt. The three aspects of the State's case which defendant attacks are the weakness of the identification evidence, the inconclusiveness of the ...