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People v. Johnson

OPINION FILED SEPTEMBER 24, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EARLEY JOHNSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a jury trial defendant was convicted of rape, deviate sexual assault, armed robbery, and aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, pars. 11-1, 11-3, 18-2 and 10-2). On appeal, he contends that: (1) he was denied a fair trial by the trial court's failure to admit into evidence a police artist sketch based on the complaining witness' description; (2) he was denied his right to counsel of his choice because the trial court failed to appoint him a private, bar association lawyer; (3) he was not proved guilty beyond a reasonable doubt; and (4) his concurrent sentences of 20 years on 3 counts and 10 years on the other are an abuse of discretion. We affirm.

In the early morning hours of December 1, 1978, Hilda Williams, the complainant, was accosted by a man as she stood by her car near her home. The man aimed a gun at her head, threatened her and pulled her back into the car. He told her it was a "stick-up" and ordered her to drive. Complainant turned on the alarm in her car but switched it off after he threatened to kill her. As they drove defendant asked her if her parents would pay ransom for her. He held the gun to her head and told her to perform oral sex on him. During the course of the next six hours he took her diamond ring, fox jacket, and cash. He forced her to perform fellatio on him two more times and have sexual intercourse with him twice. He also made her get into the trunk of her car for awhile and threatened to kill her. After her assailant left her in her car at approximately 9:30 a.m., complainant drove home to her mother, who took her the hospital and summoned the police.

Defendant, Earley Johnson, was arrested. Complainant identified him from police photographs, a lineup, and in court. Her identification of defendant was based on several factors. She testified that she was able to see her assailant during the first part of the six-hour ordeal because she was sitting next to him, the car light was on at times, headlights from a car behind them provided light, and for part of the time it was light outside.

Complainant further testified that she noticed a mark on defendant's right knee during one of the times she was forced to perform fellatio on him. The mark or mole was pinkish with white spots and was approximately the size of a quarter.

She described her assailant at trial as 5'8" tall, dark complected, bushy haired, 165-175 pounds, and 26-28 years old. She also related that he had a large, wide nose with large nostrils and had long sideburns running to the corner of his mouth. On cross-examination she testified that she told police at the time that her assailant had a beard and a mustache. A defense witness, Officer Theodore Davis, who interviewed complainant at the hospital, testified that he could not recall her saying that her assailant had a beard or a mustache, although she said that he had long sideburns, down to his mouth.

On December 2, 1978, complainant went to the police station to view photographs. She selected defendant's photograph from approximately 1,000-1,500. In the photograph, he wore a mustache and beard.

On December 26, 1978, complainant viewed a lineup but did not identify anyone as her assailant. Afterwards she again identified defendant's photograph. Two days later, complainant worked with a police artist to create a sketch from her description. On cross-examination at trial complainant testified that she told the artist that her assailant had a round, medium-sized face, medium length hair combed back but not processed, medium-sized lips and hairy, curved eyebrows. She also testified that she could see her attacker's nostrils and that she could not recall if she told the artist that the man had lines on his forehead.

On December 30, 1978, complainant identified defendant in another lineup. The same officer who had conducted the first one was present. When she told the officer about the mark on her assailant's knee the officer examined defendant and saw a scar or mole on his right knee. He also testified that he did not notice a 10" scar on defendant's kneecap which was 3" from the mole.

The parties stipulated that sperm was present on complainant's underpants and that no fingerprints of defendant were recovered from her car.

The defense called Officer John Holmes, the police artist who drew the sketch based on complainant's description. He explained the procedures involved and stated that he customarily worked alone with the witnesses, and did not learn any details of the cases or parties involved in criminal prosecutions. Holmes identified a drawing that he had completed but testified that he did not recall whether it was the drawing he made from complainant's description in December of 1978. He had drawn approximately 75-100 composite sketches within the preceding 10 months and did not learn the names or facts surrounding the persons he drew and the witnesses who described them. He described the drawing that defense counsel showed him as being of a man with a long face with prominent jaws, "natural" hair, with larger than average lips and arched eyelids. He said the nostrils were not visible and the forehead was clear, or unlined.

Defendant, 27, then testified. He said he had worked from 3:45 p.m. to 12 midnight on November 30, 1978, but on cross-examination said he was not certain of his whereabouts during the early morning hours of December 1, 1978. He also said he fell on his knee in mid-December, causing a scar.

He testified that on December 1, 1978, he had sideburns, a beard, mustache, and straightened hair.

On cross-examination defendant described his fall in mid-December and stated that Ruth Banks, a co-worker, had given him first aid. When the police came to arrest him he was underneath the bed. Upon further questioning as to the scar on his knee, he said he fell in ...


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