Appeal from the Circuit Court of Cook County; the Hon.
Theodore M. Swain, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After being convicted by a jury, defendant was sentenced to concurrent terms of six years for rape and one year for unlawful restraint. *fn1 On appeal, he contends that (1) the trial court erred in (a) denying his motion to quash his arrest, (b) allowing identification testimony which was the product of that unlawful arrest, and (c) refusing to admit a photograph of the crime scene; (2) he was denied a fair trial when the State used its peremptory challenges to exclude blacks from the jury; (3) he was not proved guilty beyond a reasonable doubt; (4) he was denied his constitutional right to confront witnesses against him by the trial court's failure to exclude inadmissible and prejudicial hearsay evidence; and (5) he was improperly convicted of and sentenced for both crimes since they arose out of a single transaction.
At a hearing on his motion to quash his arrest and suppress lineup identifications, defendant testified that he was arrested at approximately 3 a.m. on June 15, 1980, as he stood on the porch of his home. He had spent the entire evening at home watching television with his family, but he and his brother, Raleigh Harris, left the house at about 3 a.m. Harris walked to a restaurant to get a sandwich while he (defendant) walked his dog. When arrested, he was standing on the porch with his dog and was clad only in black slacks and gym shoes.
Officer Raitano testified that he and his partner responded to a radio call of a rape in progress and were met at the scene by the victim and Jerome Chudnow. The latter told them that the offenders were two male blacks who had just run south. The officers, with Chudnow in their car, were driving south in pursuit when they saw two male blacks running through a well-lighted alley about a block and a half from the scene of the rape. When Chudnow said, "Those are the two," the officers pursued them and arrested one (Harris) in the 1900 block of North Albany. Chudnow identified him as one of the men involved in the rape, and he then described the other as a male black, approximately six feet tall, who was very muscular and wore brown pants. Raitano also testified that, while his initial view of the men in the alley was brief and although he lost sight of them for about five seconds during the chase, he was sure that Harris was one of them and that the other was tall and very muscular.
Officer Penkala testified that he and his partner heard the original report of a rape in progress, and they were in the 1900 block of North Albany when they received another report that officers were in pursuit of a second person involved in a rape who was described as a muscular male black, six feet tall, and wearing brown pants. As they drove south on Albany, they were told by an unidentified woman that a male black had run south past her a few seconds before. A half block further, about two or three blocks from the rape scene, they saw defendant, a tall, muscular male black wearing brown pants, sitting on a porch. He was out of breath, and not seeing anyone else in the area, they placed him under arrest. They did not see a dog on the porch.
Defendant's sister testified that she was awakened at 3:15 a.m. by the sound of voices and a dog barking. When she looked out the window, the police were putting her brother into a squad car, and she noticed that their dog was on the porch.
Defendant's motion to suppress was denied, and at trial the victim testified that she left a family party about 12:30 a.m. with a friend who was to drive her home. In the car, they argued and she got out, intending to walk the rest of the way home. As she walked, a Puerto Rican man came up to her, held a gun to her throat, and forced her into nearby Palmer Square Park. He said that he was going to rape her and threatened to kill her if she screamed. She persuaded him to come home with her, hoping that once out of the park she could find help, but as they walked out of the park defendant and Harris approached, and one of them grabbed her while the Puerto Rican pulled a gun, and she started to run but was caught by defendant and dragged into the park under a streetlight where he beat her repeatedly about the face, bit her, tore her clothes, and raped her. She noticed that defendant wore a white shirt and a cap and that Harris wore a blue shirt. When another man approached, defendant and Harris ran away. The police arrived immediately thereafter and took her to the hospital. Later that day, she went to the police station and identified defendant and Harris in a lineup. She acknowledged that she was in the park with the Puerto Rican for a long time but said that he did not strike her or tear her clothes. She did not speak to police officers at the scene, explaining that she does not speak English, and she said that Harris did not strike or rape her.
Jerome Chudnow testified that he was in his home across from Palmer Square when he heard a commotion and, upon looking out the window, saw a Puerto Rican with a gun in his hand pointed at Harris and another man dragging a woman out of the street into the park. He (Chudnow) told a friend to call the police, and after hearing Harris say, "The gun is a toy," he went out and walked down the street to a point in front of a church directly across the street from defendant and the woman, and when defendant looked up, he (Chudnow) had a clear view of his face. At this point, the police car approached, and the two men ran south through the park and down Albany where they entered an alley. He noted that Harris wore light slacks and a blue shirt, while defendant wore dark brown pants, a white dress shirt, gym shoes, and a golf cap. He told the officers that a rape had occurred, and he got into the squad car, which was driven across the park after the fleeing men. The squad car was driven into the alley where he had last seen the two men, and he saw them again. The officers turned on their headlights and, as they came closer, the men started to run away. He was able to see that they were dressed the same as the men he had seen in the park, but he could not see their faces. One officer jumped out of the car and caught Harris, who was breathing heavily. He (Chudnow) accompanied the officers to the police station, where he saw other officers bringing in defendant whom he identified as the other man in the park. At the station, defendant was wearing only pants and gym shoes.
Officer Restivo testified that when he and his partner were flagged down by Chudnow at about 3 a.m., he saw the victim and noted that her knees were bleeding, her clothes were in disarray, and she was sobbing. Chudnow told them that the victim was raped and that the two men involved ran south on Albany. With Chudnow in their car to direct them, they pursued the two men and, upon entering an alley off Albany, they saw two men walking halfway down the alley. The two men turned and, seeing the police car, they began running. The officers broadcast the details of the pursuit, describing one of the men as being approximately five feet seven inches tall, wearing light pants with a blue shirt, and the other about six feet tall, wearing a light shirt and dark pants. Restivo pursued and caught the man in the blue shirt, and Chudnow identified him as one of the men in the park. Restivo acknowledged that he first saw the two individuals when they were in the alley and twice lost sight of them for a few seconds during the pursuit.
Officer Saenz testified that when he heard that an officer was pursuing one of the subjects south, between Albany and Whipple, he and his partner proceeded to Albany. A woman walking her dog in the 1900 block of North Albany told them she had seen a black man running south on Albany. They proceeded south down Albany and saw defendant sitting on a porch. They saw no one else in the vicinity and, noticing that he was six feet tall, wore brown pants and gym shoes, and that he was panting heavily and sweating, they placed him under arrest. He admitted that defendant did not try to run away when they approached him.
Investigators for the public defender's office testified that they went to the scene of the rape on December 7, 1981, at approximately 12:30 p.m. and took a photograph of the park from a position at the bottom of the steps of a church across the street. They acknowledged that the picture did not accurately portray how the park looked at 3:15 a.m. on June 15, 1980, and that the measurements were not made with a tape measure but were paced off.
Defendant testified that he was arrested while sitting on his front porch at approximately 3:15 a.m. He was at home with his sisters and brother Harris from 9:30 p.m. until the time of his arrest, but Harris left the house at about 3 a.m. to walk to a nearby restaurant. When arrested, he was wearing only black pants and gym shoes and had not been running. He acknowledged that his brother was wearing beige pants and a blue shirt on the night in question, and that his sisters were asleep at the time of his arrest.
Sharon Jones, the defendant's sister, testified that she and her sisters were asleep when defendant was arrested, but he and Harris had been at home with the family all evening. She admitted that she did not ...