APPEAL from the Circuit Court of Cook County; the Hon. JACK G.
STEIN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was indicted for rape, deviate sexual assault, burglary with intent to commit rape, burglary with intent to commit robbery, and robbery. (Ill. Rev. Stat. 1977, ch. 38, pars. 11-1, 11-3, 19-1 and 18-1.) A jury found him guilty of all charges except for burglary with intent to commit robbery and defendant was sentenced to a term of 50 to 100 years. On appeal, defendant contends that: (1) the prosecutor improperly influenced the grand jury to secure an indictment; (2) he was illegally stopped prior to his arrest; (3) his showup and lineup were unnecessarily suggestive; (4) other crimes evidence was improperly admitted; (5) he was prevented from testifying by the erroneous ruling that his prior convictions could be used as impeachment; (6) expert testimony concerning identifications was improperly excluded; and (7) he was not proved guilty beyond a reasonable doubt and the trial court's erroneous rulings denied him a fair trial.
The instant attack occurred between 9:30 and 9:50 a.m. on July 14, 1977, in the victim's apartment in Evanston. The victim was also robbed of $10. After the attack she phoned the police. Defendant was arrested at about 10 a.m. on the same day. He was taken back to the vicinity of the victim's apartment and required to stand in the street while the victim observed him from her second-floor window. Later he appeared in several lineups at the Evanston police station.
Defendant made pretrial motions to: (1) suppress evidence of his prior convictions; (2) suppress identification testimony; (3) quash his arrest; (4) quash his indictments; and (5) suppress other crimes evidence. Evidence of a prior robbery conviction was excluded from impeachment, but all of the other motions were denied.
The following pertinent evidence regarding defendant's arrest appears from the record. Defendant was stopped while driving his red Volkswagen. The Evanston police had been investigating several rapes which had occurred before the instant one in which the rapist had been described as a black man in his thirties, of stocky build, about 6 feet tall, weighing about 200 to 230 pounds, with balding or closely-cropped hair, wearing a T-shirt and painter's pants. His car had been described as a "small red sports car" and a red Volkswagen. At 9:50 a.m. on the day of the instant rape the arresting officer received a call informing him that a rape had just taken place and was assigned a street corner to watch. The attacker was described as a black male, heavy build and closely-cropped hair. En route to the corner he observed a red Volkswagen driven by a heavy-set black male wearing a white T-shirt. He stopped the car and told defendant that he was investigating a rape. When defendant stepped out of the car the officer saw that he was wearing paint-stained khaki pants. He received a further description of the attacker in the instant rape over the police radio as being a black male, 5'11" or 6' tall, 200 to 225 pounds, with closely-cropped or balding hair, moustache, and wearing paint-stained khaki pants. The officer handcuffed defendant and brought him to the address of the rape where defendant stood in the street while the victim identified him from her window. The officer admitted that he had stopped other black males in red Volkswagens before the instant arrest and that at the time of the instant stop he had no reason to believe that a red Volkswagen was involved in this rape. He also stated that he had decided to hold defendant before he had received the second radio broadcast. Following argument, the motion to quash the arrest was denied.
The following pertinent evidence was adduced at the hearing to suppress identification. After defendant's arrest he was taken to the address of the victim's apartment and stood handcuffed first in the middle of the street and then about 10 to 15 feet from the building. The victim was asked to look at someone from her apartment window. She saw a black man with a uniformed policeman. Although the man who had raped her wore a bandana on his head, the man in the street did not. She identified the man as the person who raped her. Defendant was told to get back in the squad car after the identification.
Later defendant appeared in a series of lineups at the police station in which he was the only man with a bald head, with the possible exception of one other, or a beard. An attorney who witnessed the lineups on defendant's behalf stated that a victim of a previous rape viewed a lineup and stated that her attacker looked like another man but sounded like defendant. After the first lineup the attorney asked that the order of the participants be changed but was told that he was only there to observe. The woman later viewed a second lineup and identified defendant as her attacker. The victim of the instant rape also identified defendant as her attacker. Following argument, the motion to suppress identification was denied.
The pertinent evidence at trial showed the following. The victim testified that she was returning to her apartment from the store at about 9:30 a.m. on July 14, 1977. She entered the outer door and was unlocking the security door when she saw a black male about 6 feet tall, weighing about 220 pounds, with a slight beard and wearing a bandana around his head, a white T-shirt and khaki pants. She thought that she recognized him, said hello, and held the door. He nodded as if to acknowledge her hello, and she walked up the stairs to her apartment. She identified defendant as the man who entered the building. As she ascended the stairs, she glanced back two times and saw that defendant was following her. As she entered her apartment, she felt a hand cover her mouth and a voice said, "Just shut up and I won't hurt you." He also asked if anyone was in the apartment, and she falsely answered that her son was there.
She was able to free herself from his grasp and attempted to escape through the back door but defendant caught her. She was about a foot from the defendant and facing him when he wrapped a kitchen towel around her head. Despite defendant's warnings, she tried to push the towel up so she could see him. She entered the dining room where she screamed and struggled with defendant. He threatened her with a hammer that he took from the table and told her to stop screaming. Defendant told her that he would not hurt her but also that he was going to rape her. The victim continued to push the towel up despite defendant's warnings and was able to see his face.
Defendant told her to undress in her son's bedroom and he did the same. As he did so she noticed that he was not wearing undershorts. He told her to lie on the bed and performed a deviate sexual act upon her for 10 or 15 seconds during which time she could again see him. Defendant then had intercourse with the victim and specifically instructed her to put her legs around his back, to rub his chest with her hands and to kiss his lips. As she kissed him she could see his chin, lips and nose. Defendant then dressed himself, left the bedroom and returned with a rope and tied her hands. He told her to be quiet and left the room. When he returned he saw that she had loosened the rope and so he tightened it and tied her ankles with her blouse. She was able to see him as he tied her ankles. He again left the room and she could hear her keys jingling, one set of which she had left in her purse, and then the door close. She freed herself, locked the front door and called the police at about 9:50 a.m.
She testified concerning the circumstances of her initial identification of defendant from her window and the subsequent identification at a lineup. She was later treated at a hospital.
The victim identified the panties and blouse which she wore at the time of the rape and the pants that defendant was wearing. She also stated that a $10 bill which she had gotten that morning was missing from her purse after the attack. The victim testified that the lighting conditions in her apartment were good during the attack. She also stated that she wore glasses to correct her near-sightedness but was not wearing them at the time of the attack because they had been knocked off when defendant first grabbed her.
The examining physician at the hospital testified that the victim was very upset and trembling when he first saw her. She had a bruise on her cheek, a scratch on her shoulder and several on her lip as well as other marks of violence. Examination of a vaginal washing revealed the presence of sperm.
A forensic chemist testified that his examination of the victim's vaginal washing revealed the presence of sperm. He also tested the crotches of the victim's panties and defendant's pants and found the presence of seminal fluid.
Evidence of another rape was admitted to show defendant's common scheme or plan. The 15-year-old victim described the circumstances of her rape which occurred at about 2:30 p.m. on July 6, 1977, in Evanston while she was baby-sitting a 3-year-old child at an apartment building. On her way into the building she almost bumped into a black man who was about 6 feet tall, large and muscular, weighed about 200 pounds, had short cropped hair, and wore painter's pants with paint splotches on them, a red and blue shirt with thin white lines, tinted sunglasses, a western-style bandana around his head, and carried an orange hand towel. She identified defendant as that man. She took the child up the back stairs, entered the back door and latched the screen door. After putting the child in her bedroom, she went into the living room where she encountered defendant. He approached the victim holding the orange towel and told her to say nothing. He told her to put the towel over her face and go into the bedroom which she did. Defendant asked something about "the little girl" and victim told him that she was in her bedroom. When defendant walked into the living room, the victim removed the towel and began screaming. Defendant returned, choked her and told her that he could break her neck. Pursuant to defendant's instructions, she rolled over and was able to see him since the towel had fallen from her eyes. He told her to replace the towel and to remove her pants which she did. Defendant inquired when her husband would be home and she told him that she was a 15-year-old babysitter and that the owners would return in 15 or 20 minutes. Defendant performed a deviate sexual act upon her and then an act of intercourse. During intercourse defendant told her to get her legs higher and to place her hands on his chest. Following the act defendant tied her ankles with a scarf he took from a dresser. He went into the kitchen where he rummaged around and then left. The victim freed herself, locked the back door and called the police.
She later viewed a lineup in which she saw a man who looked like her assailant and another who sounded like him. She saw the lineup a second time, and identified defendant as her attacker.
Foster Taylor, an employee of a car dealership located about a block west of the building in which the babysitter was raped, testified that at about 3 p.m. on July 6, 1977, he was in the alley at work and saw defendant removing his pants which appeared to be a painter's uniform. Defendant was wearing a sweat band, white overalls, a white T-shirt and blue pants under his other pants. He left in a red Volkswagen at about 60 miles per hour and nearly ran over Taylor. He identified defendant at a lineup on July 14, 1977.
The defense introduced testimony of a co-employee of Taylor which showed that Taylor was untrustworthy. In an in camera hearing, defendant offered the testimony of Dr. Buckhout, an expert in eyewitness identifications. The trial court excluded the testimony because it would invade the province of the jury, be confusing, and not resolve any of the issues involved.
An attorney present at the lineup viewed by the babysitter described the circumstances of the lineup consistently with his pretrial testimony. He also stated that before the lineup defendant had ...