Appeal from the Circuit Court of Cook County; the Hon. John J.
Crowley, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of rape and sentenced to a term of eight years. On appeal, he contends that (1) admission of identification testimony tainted by an unnecessary and highly suggestive showup denied him due process of law; (2) the State's failure to reveal evidence of the showup during discovery denied him due process; (3) the prosecutor's improper comments during closing argument denied him a fair trial; and (4) he was not proved guilty beyond a reasonable doubt.
The victim testified that she left her home at approximately 6 a.m. and began walking down Shields Avenue toward 55th; that it was just between dark and daylight, and the street was illuminated by streetlights; that she noticed a man, whom she later identified as defendant, turn the corner and begin walking toward her along Shields; that when he was 10 to 15 feet away, she realized that about a week earlier she had seen him near 54th and Shields; that as they passed, she was able to look at his face and also noticed that he was carrying a newspaper under his right arm; that after passing her, defendant grabbed her around the neck from behind and threatened to kill her if she was not quiet; that she dropped her purse, which contained $11, and began screaming and struggling with him; that he put one arm around her neck, covered her mouth with his other hand, and pushed her into a nearby yard where he turned her around so that she was facing him, and then forced her to the ground; that she had a clear view of him until he placed his cap over her face, but thereafter she was still able to see him out of one eye; that he removed her clothing and raped her, with the entire incident taking approximately 20 minutes — during 15 of which she was able to see defendant's face at extremely close range; that after defendant fled, she ran home where her brother called the police — to whom she described her assailant as a black male between 20 and 25 years of age, approximately five feet nine inches tall, weighing about 140 pounds, having large eyes, and wearing dark clothing; and that she was taken by the police to Englewood Hospital, and later she identified defendant in a lineup at the police station.
On cross-examination, the victim acknowledged that she had reviewed police reports which contained her impressions of defendant's height, weight, and facial hair; that the police wrote her initial description on a piece of paper which she had not seen; that the light nearest to the area of the rape was approximately 15 feet away; that she noticed nothing unusual about defendant's mouth other than his large lips; that while she was sitting in a police car at the hospital, a second car arrived with defendant in the back seat; that she was told the police had apprehended someone and was asked to look and see if he was her assailant, but she was not sure; that while at the hospital she had occasion to talk with police officers about the rape and subsequent viewing of defendant; and that the man she later identified in a lineup was the same man she saw in the car at the hospital. She further testified that, at the hospital, she and defendant remained in their respective cars with the windows raised; that there were several people between the cars; and that she did not see defendant standing and was not even sure the man in the car was defendant.
Officer Davis testified that when he talked to the victim at the hospital, she described her attacker as a black male, between 20 and 25, with dark complexion, large eyes and lips, short hairs on his face, and wearing a dark blue cap and a blue jacket; that he and his partners returned to 55th and Shields, where he stopped defendant because he matched the victim's description and was wearing a dark blue cap, light blue jacket, and rust-colored pants; that he took defendant into custody and drove him to Englewood Hospital where the victim was seated in a car, then to the police station, but the only time she was asked to identify defendant was during a lineup at the station; and that defendant lived in one of the houses adjacent to the yard where the rape occurred. He admitted that defendant did not have a newspaper or purse when stopped; that the fact defendant was taken to the hospital before being transported to the station did not appear in the police report; that he drove to the hospital with his two partners and defendant in an unmarked car, but defendant was not viewed there by the victim; that his partner, Officer McGovern, got out of their car and walked to the car where she was seated and talked to someone in the car, but he could not hear what was said; that McGovern subsequently related the conversation to him.
Defendant's sister testified that she saw defendant as he descended stairs in their home at 7:30 a.m. on September 24 and asked whether he had heard a woman screaming at approximately 4 a.m.; and that immediately after this conversation, defendant left the house.
Defendant testified that he was awakened by screams at 6:30 a.m. on September 24, 1980, and upon looking out of the window saw a man and woman who appeared to be struggling; that he went back to bed, but got up between 6:30 and 7 to get ready for school; that as he was leaving the building, he discussed with his sister the screams he heard and the struggle he witnessed, and when he reached the street he saw police officers who called him over and began questioning him; that the officers asked him to take a ride with them "to check something out," and he was taken to a hospital where they pulled up next to another car, and one officer got out and approached that car; that he was told to slide over to the right side of the car, lower the window, and put his head out; that he sat with his head out the window for five or ten minutes; that the officer then returned from the other car and read him his rights before he was taken to the police station; that on September 24, 1980, he had a broken front tooth and had only 13 cents on his person when arrested; that the first time he ever saw the victim was in a car in front of the hospital; and that neither he nor she got out of their respective cars at the hospital.
Defendant first contends that failure to suppress the victim's identification testimony denied him due process of law. He asserts that her identification of him in the lineup and in court was tainted by the hospital showup, which he characterizes as "unnecessary and highly suggestive." The State maintains that what occurred was not a showup; or, alternatively, that it was the type of police procedure recognized as proper in People v. Lippert (1982), 89 Ill.2d 171, 432 N.E.2d 605. It also argues that, even if we find that the procedures followed were suggestive, there was a sufficient showing of an independent reliable source for the subsequent identifications.
The State relies on People v. Witherspoon (1975), 33 Ill. App.3d 12, 337 N.E.2d 454, in arguing that no showup was conducted. There, the police arrived as a rape was taking place, and one officer pursued the assailant while another escorted the victim to a squad car. The defendant was apprehended, and as the police brought him past the car where the victim was seated, she saw him and told the police he was the man who attacked her. The defendant's motion to suppress evidence of this identification was denied, and in affirming we noted that the encounter was unstaged and occurred by mere chance, rather than being arranged by the police for identification purposes. Similar "coincidental confrontations" were found not to constitute showups in People v White (1977), 48 Ill. App.3d 907, 363 N.E.2d 408, and People v. Brown (1975), 32 Ill. App.3d 182, 336 N.E.2d 523.
Nothing in the circumstances of this case indicates any element of coincidence in the confrontation at the hospital. In this respect, it is much closer to the circumstances in People v. Hatcher (1977), 45 Ill. App.3d 374, 359 N.E.2d 1157, where defendant was arrested several weeks after an armed robbery. The victim was called by the police and asked to come to the station, purportedly to view photographs. When she arrived, the defendant was seated at a desk giving a statement to an officer. According to the victim, she was asked if she noticed the man seated in the outer office when she entered, and she stated that she could not be sure it was the robber, although she subsequently identified him in a lineup. We rejected the State's assertion that this was a chance encounter, noting:
"The officer's testimony that it had not occurred to him that the witnesses were likely to arrive while he was interviewing the defendant is entitled to little weight. * * * [He] called the victims to the station and then proceeded to conduct an interview at a time and in a place where he should have known that the victims would see the accused upon their arrival." 45 Ill. App.3d 374, 390, 359 N.E.2d 1157, 1169.
• 1 Similarly, here, the facts do not suggest that the encounter at the hospital was by chance. Rather than transporting defendant directly to the police station, he was taken to a place where the police knew, or should have known, the victim would be and placed within her view for a period of time. She testified that she was told to look at defendant and see if he was her assailant. The only possible interpretation is that it was arranged for identification purposes, since no other explanation appears for holding defendant in a police car outside of a hospital. Therefore, what occurred here was not a coincidental confrontation, but a showup.
The State also maintains, however, that even if we find a showup took place, it was justified under the circumstances. Justification has been found where a witness had an excellent opportunity to observe the defendant during the commission of a crime (People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313), or where prompt identification of a suspect is made by a witness or victim near the scene of a crime (People v. McKinley (1977), 69 Ill.2d 145, 370 N.E.2d 1040), since, at least in the latter case, such showups are "acceptable police procedure designed to aid police in determining whether to continue or to end the search for the culprits" (People v. Lippert (1982), 89 Ill.2d 171, 188, 432 N.E.2d 605, 612). Either of these justifications would be applicable to the instant case, since the witness in question had an opportunity to view her assailant for 15 to 20 minutes at extremely close range, and the showup took place near the scene of the crime a very short time thereafter.
Furthermore, after weighing the factors identified in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243, i.e., the witness' opportunity to observe the criminal at the time of the crime, her degree of attention, the accuracy of any prior description given by the witness, the level of certainty demonstrated at the confrontation, and the amount of time elapsed between the crime and the confrontation (People v. McKinley (1977), 69 Ill.2d 145, 370 N.E.2d 1040), we find that the State proved by clear and convincing evidence (People v. Blumenshine (1969), 42 Ill.2d 508, 250 N.E.2d 152) that the subsequent identifications have sufficient independent origin ...