APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS T. POMARO, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Defendant was found guilty by a jury of the crimes of rape, armed robbery, aggravated kidnapping and burglary. The trial court sentenced him to 28 years in custody for the crimes of rape and armed robbery, sentences to run concurrently. Defendant now appeals.
On appeal, defendant argues that (1) the trial court erred in denying his motion for substitution of judges; (2) the trial court erred in not allowing defense counsel to introduce into evidence and cross-examine complainant about a composite sketch of the offender prepared by police from complainant's description; and (3) the lineup identification and fingerprint comparison should have been suppressed.
The first two errors alleged by defendant on appeal are procedural. These two are also the most significant issues. Therefore, a detailed recitation of the facts is unnecessary. An abbreviated version follows.
On July 16, 1977, at 12:30 a.m., complainant left work and drove to her apartment in Evanston, Illinois. She testified that as she walked into the vestibule of her apartment building, defendant grabbed her from behind, choked her and threatened to kill her. This was the beginning of an ordeal which lasted approximately five hours.
In the course of the incident, complainant was subjected to various indignities and violations of her person. She was forced to undress, beaten, tied with a dog leash and raped. After the incident, complainant telephoned her parents and then reported the incident to the police. She was treated later that evening at the Evanston Hospital emergency room. She was examined by a doctor who testified that complainant sustained abrasions on her face and arms and that motile sperm was found in complainant's vagina.
A reported rape unrelated to complainant's rape eventually led to defendant's arrest. On August 9, three weeks after complainant was raped, Officer Al Szoldatits was on patrol with his partner on the south side of Chicago. He spotted an automobile parked in an alley near 87th Street and Michigan Avenue. Looking inside the car, he saw a man lying down and a young blonde woman who was naked from the waist up. The man was defendant. Szoldatits asked whether there was anything wrong, and the two said that there was no problem. He took both of their names and addresses. Defendant stated that his name was Philip Rucker.
Approximately one hour later, the woman who had been in the car reported to the Evanston police that she had been abducted, raped and robbed. She stated that she had been stopped by the Chicago police earlier that evening. The Evanston police then contacted the Chicago police and obtained defendant's name and address. An Evanston detective and two Chicago police officers went to defendant's home and conducted a search. Several items belonging to the woman were recovered. Defendant was arrested later that evening.
Primarily, the incriminating evidence against defendant consisted of a lineup identification of defendant by complainant and a fingerprint of defendant's found in her apartment. Defendant's defense theory was that he had always had a beard and therefore could not have been the perpetrator of the crime. Both at the time of his arrest and at the lineup, defendant had a short beard. The day after complainant was raped, an Evanston police officer and complainant assembled a composite sketch of the rapist. The composite indicated that the rapist had been clean-shaven. At trial, complainant again described the man who had raped her as clean-shaven. Defendant called five witnesses at trial, all of whom were friends and relatives, who testified that defendant had had a beard on the date when complainant was raped.
An Evanston police officer dusted complainant's apartment for fingerprints. He discovered latent fingerprints on an ashtray in complainant's apartment. A fingerprint examiner compared defendant's fingerprints to those which had been found on the ashtray. One of the latent prints taken from the ashtray was identical to defendant's right index fingerprint. The examiner explained at trial that there were 14 points of comparison between the prints, in excess of the number necessary for a positive identification.
The jury found defendant guilty of all charges.
First, defendant argues that the trial court erred in denying his motion for substitution of judges. The statutory provision governing motions for substitution of judges provides that a defendant may move in writing for a substitution of a particular judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a).) The motion must be made within 10 days after the case has been placed on the trial judge's call and before the trial judge has ruled on any substantive issues. (Ill. Rev. Stat. 1979, ch. 38, par. 114-5(a).) If these requirements are met, the defendant has an absolute right to have the case transferred to another judge. In the present case, the trial judge had not ruled on any substantive issues before defendant moved for substitution. The only question with which we are concerned is whether defendant's motion was timely filed.
In 1978, when defendant's case went to trial, the Second Municipal District of the circuit court of Cook County had one felony courtroom. Judges were assigned to the felony courtroom on a rotating basis. Each ...