Appeal from the Circuit Court of Cook County; the Hon. Dwight
McKay, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Walter Lamacki (defendant) was charged by information with rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3) and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). On the State's motion, the two counts of armed violence were dismissed. On February 18, 1982, following a jury trial, defendant was found guilty of rape and deviate sexual assault. Defendant's motions for a new trial and his motion for relief notwithstanding the verdict were denied. Following a hearing in mitigation and aggravation, defendant was sentenced to serve two concurrent terms of 20 years in the Illinois Department of Corrections.
On appeal, defendant assigns as error: (1) the trial court's failure to suppress the identification testimony of complainant based upon allegedly "suggestive" photographic and lineup identification procedures; (2) the trial court's refusal to admit into evidence three "mug books" allegedly containing defendant's picture and a police "sketch" derived from a description of the assailant provided by complainant; (3) certain prosecutorial remarks made during closing argument; (4) the State's failure to prove defendant guilty beyond a reasonable doubt; and (5) the trial court's abuse of discretion in sentencing defendant to two concurrent 20-year terms of imprisonment.
Defendant was arrested on July 15, 1981, and charged with the July 14, 1981, rape and deviate sexual assault of complainant. The evidence elicited at the three pretrial hearings pursuant to defendant's motions to suppress complainant's identification testimony reflects the following:
On July 14, 1981, at about 10 p.m., the 25-year-old complainant was returning home from the White Hen Pantry store located at the corner of Flossmoor and Pulaski streets in Country Club Hills, Illinois, when she was accosted by a man carrying a knife. She was raped and forced to perform an act of deviate sexual conduct. Following her attack, complainant returned home and telephoned the Country Club Hills police station. When the police arrived, complainant gave to them a general description of her attacker. On July 15, 1981, at about 10 a.m., complainant went to the Country Club Hills police station. While at the station, Police Sergeant William Schultz (Sergeant Schultz) showed complainant three "mug books" containing "hundreds and hundreds" of pictures. According to Sergeant Schultz, the books should have included two sets of photographs (front view and profile) of defendant. Complainant was unable to identify her attacker in the "mug books." However, she did provide a detailed description of her assailant to a police artist who made a "composite" of the assailant from an "identification kit." *fn1 Complainant described her assailant as "five-eight or six-two, Caucasian" with shoulder length blonde hair, a moustache and a beard. She also stated that her attacker had "Wally" tatooed on his lower arm, although she could not recall which arm. Complainant testified at trial that she thought her assailant had a full "blondish" or "reddish" beard.
Sergeant Schultz testified at the suppression hearings to the following:
On July 15, 1981, at about 3 p.m., he discussed this rape incident with another police person. As a result of this discussion the officers were of the impression that they knew a man who "fit the composite" drawn by the police artist from complainant's description. Although complainant was "dissatisfied" and questioned the accuracy of the "composite," the police officers believed that defendant fit the description and the composite. At about 3:30 p.m. that same day, Sergeant Schultz and a second officer went to defendant's condominium at 4110 West 102d Place in Country Club Hills, about 2 1/2 blocks southwest of the White Hen Pantry store near which the instant crime took place. Sergeant Schultz and defendant "had a conversation" following which defendant was "transported" in a police vehicle to the Country Club Hills police station.
At the time defendant was taken to the police station, Sergeant Schultz did not consider him to be "in custody." A "polaroid" photograph of defendant was taken by Sergeant Schultz at the police station and at about 4:30 p.m. he took this photograph, along with eight others of different men, to complainant's home. He did not tell complainant that he believed her assailant's photograph was among the nine. She looked at each individual photograph and when "she came to [defendant's] photograph she set it down on the table and said, `That's him.'" *fn2 Sergeant Schultz returned to the police station and at about 5 p.m. on July 15, 1981, placed defendant under arrest.
John A. McGuire, one of defendant's attorneys throughout the pretrial stage of the prosecution, testified at the suppression hearing held on November 25, 1981, to the following:
On July 17, 1981 (it appears from McGuire's testimony that he was in fact referring to the events which occurred on July 15, 1981), he received a telephone call from defendant who told McGuire that he was "locked up in Country Club Hills." Defendant asked McGuire to represent him. At about 6 p.m. that day, McGuire telephoned the Country Club Hills Police Department and spoke with Sergeant Schultz. Sergeant Schultz told McGuire that defendant "was incarcerated and that he was charged with rape, and that they were going to conduct a line-up." McGuire told Sergeant Schultz that he "wished that he would not talk to defendant" and "asked him to delay any line-up until [McGuire] got there." McGuire acknowledged that Sergeant Schultz "may" have told him a lineup would be conducted at 6:30 p.m. Sergeant Schultz later testified that he in fact told McGuire that a physical lineup was going to be held at 6:30 and he asked McGuire "if he wanted to be present." McGuire responded, "I will be there."
A lineup was conducted at about 6:45 p.m.; McGuire arrived at the police station at approximately 7:15 or 7:30 p.m.
In the lineup defendant elected to stand at the far left. He was dressed in the same clothes he had worn when Sergeant Schultz took the "polaroid" photograph which Schultz showed to complainant two hours earlier. Defendant was dressed in a T-shirt with an emblem containing the phrase "A Friend In Weed." No other man in the lineup wore a similar T-shirt although others did wear "pull-over" T-shirts. One other man in the lineup had a visible tatoo on his arm.
Two hours after complainant identified defendant from his "polaroid" photograph as the man who attacked her, she also identified him in the lineup. Although complainant had described her attacker as a man with a "full" beard, Sergeant Schultz described defendant's facial appearance on July 15, 1981, the day following the instant crime, as a "moustache that comes down below his lower lip and a slight goatee * * * kind of like a Van Dyke goatee on his chin."
After the lineup was conducted and defendant had been identified by complainant, he was advised of his Miranda rights. Defendant acknowledged that he understood these rights and agreed to talk with Sergeant Schultz and an assistant State's Attorney who was present. After a few questions were asked, however, defendant refused to answer further questions until he spoke with his lawyer.
In argument on his pretrial motion to suppress complainant's identification testimony, defendant asserted that because the lineup was conducted in the absence of his counsel and he was questioned further after the police were asked by defense counsel to delay such activity, defendant was denied his right to the assistance of counsel during a "critical stage" of a criminal prosecution; that the use of a "polaroid" photograph, which was over-sized in comparison to the other photographs viewed by complainant, was "highly suggestive" and, therefore, prejudicial to defendant; and that the lineup procedure, in which defendant wore the same clothing he wore in the photograph shown to complainant by Sergeant Schultz about two hours prior to the lineup, was "highly suggestive and prejudicial."
After argument, the trial court denied defendant's pretrial motions, finding that "the failure of defendant's lawyer to appear at the time he apparently agreed to appear cannot be considered as a denial of the right to counsel"; that defendant was apprised of his Miranda warnings; and that the court could not "conclude that there was anything suggestive or impermissible" about the photographic identification or the physical lineup identification.
When defendant's trial began on February 11, 1982, he renewed his motion to suppress complainant's identification testimony. Defendant's motion was again denied.
The complainant (a black woman) testified to the following:
On July 14, 1980, she lived in Country Club Hills with her fiance and her children. As she returned home from shopping at the White Hen store, she walked westward on the north side of Flossmoor Road. A "guy" jumped out of some bushes and yelled, "Nigger, me and you tonight, I'm going to rape you." She started to run back toward the White Hen because she had seen a uniformed policeman in the store and a Country Club Hills police car outside the store. As she ran, however, the man came up behind her, tripped her and she fell. The man threatened her with a knife, put his arm around her neck and "pulled her off the road" to a garden area about 50 feet from the street. The assailant repeatedly said: "Me and you, I'm going to rape you tonight. The niggers do it all the time." She was forced to disrobe and the assailant "straddled" her. He told her to "suck his penis." When she refused, he "grabbed the top of [her] head and forced her to suck it." He unbuckled his pants and pushed them down. He forced his penis into her mouth. He then "put his penis into [her] vagina and he ejaculated."
The assailant then told complainant she could dress and leave. As she left, he followed her for a short distance. The assailant asked her name and she replied "Betty." Complainant asked her attacker if he knew her; he responded that he knew her from "the store." As complainant reached the corner of Flossmoor and Cypress, the assailant said he was going the other way and he left.
Complainant identified defendant in court as her assailant. She stated that the garden area to which defendant "pulled her" was lit by the lights of the White Hen store, the street lights and a light on a building near the garden area. She was also able to see his face as he stood under a street light when he followed her to the corner of Flossmoor and Cypress after the attack. She recalled that as he grabbed her initially she saw a tatoo on his lower arm, but she could not recall which arm it was or the design. Complainant recognized defendant as a man she "caught a glimpse" of in the White Hen store when she was at the cash register shortly before she was attacked.
Following the attack, complainant returned home and telephoned the police. When the police arrived, she described her assailant. She refused to accompany the police to the hospital until someone was available to tend her children. When her fiance returned home about 1:30 a.m. the next morning, July 15, 1981, he took her to South Suburban Hospital. Prior to going to the hospital, she showered and changed clothes but "didn't take a douche."
At the hospital complainant was examined by Dr. William Hughes. He testified that he performed a "general medical examination" and obtained specimens required by the "Rape Examination Kit" (sometimes referred to as a "Vitullo Evidence Kit"). Such specimens include swabs from various areas of the victim's body including the vaginal area and the mouth. In addition, samples of complainant's blood and pubic hair were collected. Dr. Hughes observed no "gross abnormalities, bruises or scratches" on complainant's body.
Patricia Hamby (Hamby), a forensic scientist employed by the Illinois Department of Law Enforcement in Joliet, testified as an expert to test results of the blood type and body-fluid characteristics of defendant and complainant. From her findings Hamby concluded that defendant's blood type and body-fluid characteristics were not particularly unusual but were representative of 12% of the Caucasian male population.
Hamby examined People's Group exhibit No. 2 (complainant's leotards, a red belt and a pair of slacks) and stated that when tested "there were chemical reactions suggesting the presence of semen but [Hamby] could not confirm" this and the test was "inconclusive." People's exhibit No. 1-A (a white panty worn by complainant the night she was attacked) was examined by Hamby and she stated that here "semen was identified." The seminal material was further examined and found to be ...