Appeal from the Circuit Court of Will County; the Hon. Michael
A. Orenic, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant was charged with one count of rape and two counts of armed violence. In a bench trial, the court convicted him of all charges and sentenced him to concurrent terms of 20 years in prison.
The complainant was 13 years old at the time of the rape. On October 5, 1981, sometime between 8:15 and 8:20 a.m., she left home to walk to school. As she was walking along a sidewalk, a car stopped on the opposite side of the street. She described the car to police as a two-door, black over burnt orange 1968 or 1969 Buick. A man got out of the car, looked at its tires, and crossed the street to intercept the complainant. The complainant testified that she did not have a long time to see the man's face.
The man displayed a gun and ordered the complainant into the back seat of the car. He took the books she was carrying and placed them under the seat. According to the complainant, he was not wearing gloves. The man covered her head with a blanket and ordered her to stay down. After driving for about three minutes, he stopped, climbed into the back seat, removed the complainant's clothes and took off his own clothes. The blanket was still covering her face. The man put the gun to the complaint's head and told her to do as he ordered. As he began to rape her, she tried to push him away, discovering that he had a hairy chest. She also had a brief opportunity to see the man when the blanket momentarily fell from her eyes.
After the rape, the man dressed the complainant and then himself. He blindfolded her with a torn towel and told her his name was Thomas. The man moved the complainant out of the car and handed her books to her. When she heard him drive away, she removed the towel, ran home, reported the incident to her mother and called the police.
The initial information which the complainant gave to the police described her assailant as a black male, six feet tall, 170 pounds, in his early twenties and wearing blue jeans. During an in-depth police investigation the next day, the complainant revised and expanded her description of the attacker, stating that he was approximately 23 years old, 5 feet 11 inches tall, 175 pounds and darkly complected. She also told the police that the man had a soft voice, short hair, a slight beard and mustache and hair on his chest. She also said that the man wore blue jeans, white gym shoes and a black leather jacket.
To establish the identity of the defendant as the assailant, the State primarily relied upon the complainant. After the complainant assisted the police in making a composite drawing of her attacker, one of the police officers assembled a photographic display of known sex offenders. According to this officer, the complainant stated, "[t]hat's him," when she saw the defendant's photograph. The complainant, however, testified that she selected the defendant's photograph in response to the police officer's instructions to select the man that most resembled her assailant. She also testified that the police officer asked her if the defendant's photograph most resembled her attacker.
Based on the complainant's selection of the defendant's photograph, the police arrested the defendant and placed him in a lineup with four other men. The defendant was represented by counsel at the lineup. After the complainant received directions from the officers, she viewed the men for 20 minutes. During this time, each man read aloud statements which the assailant made to the complainant. The complainant was behind a one-way mirror during the viewing. Each man stepped within two feet of the complainant. After viewing all the men, everyone in the viewing room moved to a conference room and a police officer asked the complainant to select the man who looked familiar. The complainant was unable to identify anyone and stated that no one looked familiar. At this point, the defense counsel departed the police station. Shortly afterwards, the police officer asked the complainant to disregard the voices and identify anyone who looked familiar. The complainant selected the defendant. At the trial, the State introduced evidence of the lineup identification.
The State also introduced evidence of the complainant's identification of the defendant at a preliminary hearing. At this hearing, the complainant was asked to identify her assailant in court. She asked to have the defendant stand, move closer to her and speak. When she was asked to make the identification, the complainant hesitated, but eventually identified the defendant as the man who raped her. At the trial, the complainant promptly and positively identified the defendant, who was seated at the defense table, as her assailant.
The State attempted to corroborate this identification with scientific evidence and evidence of a prior rape by the defendant to establish a modus operandi. The State produced an expert witness who testified that the semen found on rectal and vaginal swabs could have come from the defendant. The blood type in the semen was type O, which is the same type as the defendant and the complainant. Over 40% of the population has type O blood and 60 to 80% of the population will secrete their blood type in their body fluids. The expert also testified that he tested the defendant for the enzyme PGM. The defendant has a PGM of 1. This same PGM was found in the vaginal swab. The expert failed, however, to test for PGM in the complainant. According to this expert, though, all males secrete PGM in their semen, while women do not secrete it vaginally or do so only in low concentrations. Thus this expert concluded that all the PGM could not have come from the complainant alone.
A defense expert also testified as to his findings in regard to the blood types. Although he disputed some of the methods and conclusions of the State's expert, he also agreed that the defendant could not be ruled out as the source of the semen. The defense expert also testified that approximately half the population has type O blood and over half the population has a PGM of 1.
The same expert for the State testified that he conducted tests and comparisons between hair samples of the defendant and hairs found on the complainant's body. According to this expert, a fragment found on the complainant's bra was similar in diameter and color to the defendant's pubic hair. The expert also compared two hairs that were found on the complainant's socks and shoes. He concluded that these hairs were similar in color and pigmentation to the defendant's head hair. This expert testified, though, that the defendant's hair displayed a very wide range of traits. The defense also produced expert testimony on this point. In uncontradicted testimony, the defense expert explained that almost all dark pigmented hair would be consistent with the fragments found on the complainant. The defense expert agreed that the defendant could not be ruled out as a possible source of the hairs.
Finally, the State introduced the testimony of Sandra Hernandez, the victim of a rape in which the defendant participated. Ms. Hernandez was 20 years old at the time of her attack. On April 28, 1979, at 2 or 2:30 a.m., she was walking along a street towards her uncle's house. A car followed her slowly for five or six miles. The driver continually asked her if she wanted a ride. Ms. Hernandez repeatedly refused. Eventually, she stopped at an all-night convenience store. After she left the store, she continued walking. As she saw the car ahead, parked in a driveway, someone grabbed her from behind, put something in her side and threatened to kill her if she was not silent. The car backed up, and she was placed on the floor of the back seat. The man also put a stocking cap over her face and took her purse. Ms. Hernandez testified that she saw the driver but not the man who grabbed her. The men drove to a garage, where one man climbed into the back seat, removed her clothes and his own clothes and raped her. When this man left the car, the other man entered it and raped her.
When the second man finished, he told Ms. Hernandez to get dressed. They ordered her to stay on the floor while they were driving. The man returned Ms. Hernandez' purse to her, although they removed several items from it. When they released her in an alley, the men threatened her once more, removed the ...