Appeal from the Circuit Court of Cook County; the Hon. Vincent
Bentivenga, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 29, 1984.
Defendant Nick McDowell was convicted after a jury trial in the circuit court of Cook County of attempted rape, two counts of deviate sexual assault, attempted armed robbery, and unlawful restraint, and he was sentenced to 12 years imprisonment for attempted rape, deviate sexual assault and attempted armed robbery, the sentences to be served concurrently. He appeals, contending (a) the State wrongfully withheld blood samples which were the only evidence that could have exculpated him, (b) the identification made by the complainant was not clear and convincing, and, (c) the trial court improperly allowed the State to present prejudicial hearsay testimony to the jury.
The complainant testified she was in her car at a parking lot near the University of Illinois-Chicago campus on April 15, 1980, when a man approached the driver's side. After she refused to roll down the window, the man pointed a gun at her and walked around the front of the car to the passenger's side. He entered the front seat after the complainant opened the door. She observed the man was wearing a black wool cap with a visor, long black twill coat, beige pants and a light colored shirt. He was about six feet tall.
The man asked for money and searched the complainant's coat and book bag. She offered to cash a student grant check. The man ordered her to drive to an empty lot nearby. There, the man ripped the complainant's sweater and told her to get in the back seat and take her clothes off. The man ripped her sweater again as she hesitated. He then climbed into the back seat and attempted to have intercourse with her. The man rolled her over and had anal intercourse with her. When he was through, the man pulled her by her hair and forced her mouth onto his penis. The complainant noticed that the man's penis was bleeding.
After dressing, the man told complainant to drive to a currency exchange on Taylor Street. Accompanying her inside, the man threatened her if she sought help. The complainant endorsed the student check and also wrote the word "help" under her signature. The currency exchange teller asked the man what he was doing and he then fled down an adjacent alley. Complainant was taken to the Mother Cabrini Hospital by police. She had not been bleeding, but she noticed blood on her clothes.
Complainant worked with a police artist to make a composite drawing of the attacker. The sketch was distributed although the complainant admitted on cross-examination that the drawing looked nothing like the defendant. She also testified she had told the police that the drawing did not look like her attacker. She was also shown photos several times by the school security police. She did not identify anyone but indicated one photo looked like her attacker. She also attended a lineup soon after the incident and did not identify anyone.
Approximately nine months after the incident, on January 16, 1981, the complainant saw a man she identified as her attacker standing in a class registration line at Malcolm X College. The man was wearing a wool knit ski cap, blue coat and beige pants when he was arrested in a classroom by school security police. The complainant made a positive identification of the defendant at trial as her attacker.
Dr. Maja Jagasia testified she examined the complainant in the emergency room at the hospital. It took 10 to 15 minutes to calm her down and find out what happened. Dr. Jagasia conducted an examination and prepared a Vitullo Rape Kit. She found complainant suffered no external wounds but did observe blood on complainant's foot, thighs and jacket.
Josephine Deletto, the teller at the currency exchange, testified that the complainant came into the currency exchange and endorsed a check with her name and the word "help." Upon noticing this the witness summoned the police and asked a man near the entrance of the currency exchange if she could help him with anything. The man told her he wanted a stamp and walked out of the currency exchange. She described this man as tall, "like six feet," slender and in his early 20's.
She further testified that defendant looked like the man she saw in the currency exchange but could not make a positive identification. She also had viewed a lineup on January 17, 1981. Of the five people in the lineup, she thought one looked like the man in the currency exchange, but she was not positive. She identified a photograph of the lineup and the man she picked out. She testified this man looks like the defendant. On cross-examination, she reiterated she was not positive of her identification of the man in the lineup as the one she saw in the currency exchange. She also could not be sure the man in the lineup was the defendant.
Richard Law testified that he was assigned to investigate this case on the day of the incident. He stated the complainant was shown numerous photographs. She also viewed a four person lineup on the evening of the incident without identifying anyone. On cross-examination, he stated that on one occasion the complainant picked out a photograph of a man who looked "very much" like the offender. It was not a photograph of defendant.
James Griffin was the Chicago police detective assigned to this case on January 16, 1981, the day defendant was taken into custody. He spoke with the defendant and gave him his Miranda rights. He asked defendant where he was on April 15, 1980. After finding out that date was a Tuesday, defendant told him that he was in school. An assistant State's Attorney later asked the same question and received the same answer. During cross-examination Griffin stated defendant denied participation in the incident and stated he was probably in school on the date of the incident. Griffin also testified that defendant was not charged until January 17, 1981.
Thomas O'Malley worked for the Chicago Board of Education. In April 1980, he worked at a special education facility known as the Chicago Program Center. At the time, he was acting assistant principal supervising the teachers. He identified defendant as a participant in the program from April through June 1980. He also identified an attendance book kept by the teacher for the classroom assigned to defendant. This attendance book indicated defendant was absent from school the entire day on April 15, 1980. O'Malley stated on ...