APPEAL from the Circuit Court of Lake County; the Hon. JOHN L.
HUGHES, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 19, 1981.
Defendant, Walter Canity, was charged in an amended information with the offenses of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3(a)) and burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1(a)) arising out of an incident which occurred on July 24, 1979. Defendant filed pretrial motions to quash the arrest, suppress statements, and suppress identification testimony, all of which were denied by the trial court. Following a jury trial, defendant was found guilty of both charges; subsequently, the court vacated the judgment entered on the burglary charge. Defendant was sentenced to serve 6 years with the Department of Corrections on the deviate sexual assault conviction. Defendant now appeals, contending that: (1) the court erred in denying his motion to suppress identification testimony since it failed to determine the reliability of each witness' identification on an individual basis; (2) the court should have suppressed all the identification testimony based upon an unnecessarily suggestive show-up; (3) the court should have quashed the arrest and suppressed the subsequent identification; (4) the court erred in admitting certain evidence; and (5) the evidence was insufficient to prove the offenses beyond a reasonable doubt.
At the hearing on the pretrial motions, defendant testified as follows. On August 14, 1979, defendant was employed as a U.S. Army recruiter, and lived with his wife in a Waukegan apartment. On that date, between approximately 11 and 12 p.m., he had occasion to be at the Smith Avenue Apartments in Knollwood, Lake Bluff, Illinois. He stated that he was driving an army automobile which had large army insignias on both doors and was wearing an army uniform, including ribbons and a name badge. He testified that he drove through the apartment complex and then parked his vehicle on a cul-de-sac at the entrance to the complex. He exited his vehicle and began walking around the apartment complex looking for the building in which he believed a friend of his lived. At trial, he testified that the individual was called Dewey. After walking by a number of different buildings, he realized that he was unable to determine if his friend lived in that complex or not, so he began to make his way back to his car. He then realized that there was another apartment complex adjacent to the Smith Avenue Apartments and decided to "check those out to see whether he was living there or not." He went over to those buildings but, again realizing that he would be unable to locate his friend's apartment, walked back across a field to his car.
As he began to unlock his car, he heard someone yell, "Hold it, Sarge." Two individuals who identified themselves as deputy sheriffs approached defendant and asked him for some identification. Defendant then produced his military I.D. card and was ordered to get up against his car. After being searched, two other officers arrived, one of whom asked for defendant's car keys. The inside of his car and the trunk were then searched. One officer said to another, "Hold him here while I go get the witnesses."
Two men were then brought over to view defendant. Flashlights were shined in his face and he was told to turn in various positions. After the two men were taken away, the officers brought out two women who also viewed defendant in various poses as flashlights were shined in his face. The women were then taken away, but one of them returned a while later and again viewed defendant while lights were shined in his face. After she left, defendant was ordered to get in the back seat of the squad car parked nearby. Yet again, the woman who had viewed defendant twice returned to view defendant a third time while he was seated in the squad car with a light directed to his face. Defendant then was asked for additional identification, and he produced his driver's license. Shortly thereafter, defendant was taken to the station. Defendant testified that he had the impression he was under arrest after the officers frisked him and searched his vehicle, but that an arrest warrant was never produced.
At the hearing on the pretrial motions, Detective Fratus of the Lake County Sheriff's Department testified that on August 14, 1979, he and three other deputies, Detective Smith, Deputy Patrick Dunn, and Deputy Darus, were on a stakeout at the Smith Avenue Apartment complex in response to reports of a prowler and an assault and were "looking for a black male." During the stakeout, the officers observed a military vehicle driving through the complex. As the driver later approached one of the apartments being staked out (because of an earlier assault on the occupant), he paused and looked in the apartment for several seconds and then continued walking. Shortly thereafter, Fratus left the apartment and waited near the army vehicle. When defendant returned to the vehicle, the officers first questioned him and then conducted a search of his person and his vehicle. When initially questioned by Fratus, defendant was unable to tell Deputy Fratus which apartment he was looking for or the name of the person he sought to see. Fratus admitted that, at that time, he did not have an arrest warrant.
Robert Wolff testified that on August 15, 1979, at approximately 12:30 a.m., he was asked to identify defendant. Defendant was standing next to his car and flashlights were shined at his face. Wolff viewed defendant from a distance of 2 to 3 feet for approximately 30 seconds. He then told the officers that defendant looked shorter than a man who he had previously seen about the apartment complex. Several minutes later, Detective Smith approached Wolff and showed him defendant's military I.D. card. Wolff looked at the card and told Smith that the picture thereon was that of the man he had previously seen. Wolff admitted, however, that he felt pressure because he had been asked to make an identification. Also, he acknowledged that, even after making the identification of defendant, he had some doubt.
Wolff testified that on July 24, 1979, around midnight he had seen a black male, later described as being approximately 6 feet tall, 200 pounds, with a big round face, and wearing a red satin shirt and red hat, loitering near the apartment complex. He observed that individual, identified at trial as defendant, from an approximate distance of 7 to 10 feet and spoke with him for 1 1/2 to 2 minutes. He asked the man what he was doing there, and he replied that "he was looking for a black man and a white lady in the area * * *." Wolff then told the man to leave the apartment complex. Several minutes later, however, Wolff again saw that individual at a different location within the apartment complex. He spoke with him for 3 to 4 1/2 minutes and never got closer to him than 15 feet. This time, the man said that his car wouldn't start and he needed a ride.
The victim, Mary Duke Harlan, testified that she was brought to the scene of the stop by Detective Smith and viewed defendant, first, while he was seated in the squad car and, then, when he stepped out of the vehicle. She viewed defendant from a distance of several feet while flashlights were used to illuminate him. After looking at defendant for several seconds while he was in the car, and up to a minute after he stepped out, she was unable to make a positive identification, although she testified he seemed "very familiar and like the same person that had been there before, very similar." She was hesitant then because he was in military uniform and looked shorter. She walked away and began talking with Robert Wolff. She was standing next to Wolff when the officers showed him the military I.D. card of defendant and when Wolff indicated that the picture thereon was that of the man he had previously encountered on July 24, 1979. Later she viewed the I.D. card of defendant and stated she was able then to determine with more certainty that he was the same man who she saw on July 24. Harlan then went to her apartment as she was "uptight," but shortly thereafter returned to the scene and viewed defendant again while he was seated in the squad car. This time she positively identified defendant as her assailant. On the following morning, she was shown a series of photographs of black men, and "picked out the person from the night before."
Harlan testified further regarding the assault as follows. In the early morning hours of July 24, 1979, she had been asleep for approximately 3 hours when she was awakened by voices outside her window. She recognized one of the voices as that of Robert Wolff, but could not recognize the other. She then started to doze off but was awakened by a man standing at the side of her bed. The only lighting at that time was a reflection from the kitchen light down the hall and from the pool area outside her window. Harlan observed her attacker for as long as a minute and a half at a distance of a few feet before she was ordered to bury her head in a pillow. He then forced her to submit to an act of deviate sexual conduct. She later described the assailant to police as a muscular black male, approximately 30 years of age, 6 feet tall and weighing 200 pounds. The only unusual facial characteristic of her assailant which she noticed was a split between his teeth, although she couldn't remember whether she had told this to the investigating officer, nor was she certain she noticed this on August 15. Defendant did have such a split between his teeth.
David Harris testified that he was awakened by police on August 15 and asked to make an identification. When he arrived at the scene, he observed defendant standing next to a car illuminated by the headlights of a squad car as well as by "large hand lights." Harris identified defendant as the same individual he had observed at the apartment complex shortly after midnight on August 6, 1979. At that time, he had a conversation for approximately 2 minutes with a man who stood between two parked cars in the parking area of the complex. They were about 75 feet apart while they talked and there was lighting which came from behind the subject. Harris described the individual to deputies as a black male, approximately 5 feet, 10 inches tall, 180 pounds, in his twenties, and wearing a peach-colored shirt and grey slacks.
The next identification witness was Dan Dunn, a Lake County sheriff's deputy, who resided in the Smith Avenue Apartment complex. He testified that on August 15, 1979, he saw other deputies in the area and went over to a parked car and identified defendant, who was seated in the vehicle, as a person he had seen at the apartment complex on August 6, 1979, around midnight. On that date, he had seen a black male standing in the entranceway to one of the apartments near the mailboxes. When he asked him what he was doing, the man replied that he lived in the apartment building. Dunn later determined that no blacks lived in that building. When he saw defendant sitting in the squad car on August 15, 1979, he immediately recognized him as the same person he had observed on August 6, 1979.
Deputy Willie R. Smith testified that he participated in the stakeout, was present shortly after the defendant was stopped and advised him of his rights although he did not consider defendant in custody. Smith brought several witnesses, Wolff, Harlan and Harris, to view individually this defendant. His testimony concerning their viewing of the defendant is in substantial conformance with their testimony at the hearing. He stated that after the defendant had been identified by Wolff, Harlan and Harris, he informed him that he was under arrest for the previous incident. Regarding the stakeout, he testified that he was in the living room of Harlan's apartment when he saw the defendant approach and pause for a short period of time while peering in through sliding glass doors. Later when the defendant was stopped, Smith testified that he asked him who the friend was that he was looking for, and defendant said he could not recall his name or address. Smith testified that defendant was taken to the Sheriff's office after he had been identified by all four witnesses. He stated that he gave Miranda warnings to defendant when he first arrived on the scene (prior to the identification) and upon arriving at the sheriff's office. Defendant denied ever receiving Miranda warnings, and Detective Smith admitted that he did not use a written acknowledgement and waiver of rights form at the station.
Deputy Patrick Dunn testified he was involved in the stakeout and that the officers were looking for a black male of medium height. He saw the defendant pass by a second apartment in which he was staked out, but the defendant walked by without any interest. About 10 to 15 minutes later, after Dunn had gone to the military vehicle, defendant then approached and he was stopped. While he was present during the subsequent viewing of the defendant by the other witnesses, he did not hear their conversations.
Deputy Michael Darus testified he also participated in the stakeout and observed defendant approach in his vehicle and later saw him walk by the apartment where he and Dunn were situated. He did not actively participate in the detention or questioning of the defendant.
County Detective Richard Whitemore testified that when defendant was later brought to the Sheriff's office, he took a picture of him and showed it to Harlan along with six other photographs. He further stated that Deputy Smith read defendant his Miranda rights and that they had a conversation.
Deputy Glen Jarzembowski testified that on July 24, 1979, he investigated Harlan's complaint about a break-in and sexual act performed on her. The description given him of the attacker by Harlan was of a black male, approximately 30 years of age, 6 feet tall and approximately 200 pounds. She was upset and, due to her condition, gave no more details. He talked with her about 10 minutes. Then he talked with Wolff, whose description of a person he had seen earlier was that of a black male in his 20's, approximately 5 feet 11 inches, 185 pounds with a big round face. He also returned to the scene on August 6 and talked with Dave Harris who complained about a prowler. Harris described that person as 5 feet 10 inches, 185 pounds and a black male in his 20's.
George Sullivan, a licensed private investigator, testified for the defendant. He took photographs of the apartment complex layout and testified to lighting in the area.
Following admission of the above testimony and argument of counsel, the trial court denied defendant's motion to quash the arrest and suppress statements. He subsequently denied the ...