Appeal from the Circuit Court of Cook County; the Hon. George
M. Marovich, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendants Efrem Clark (Clark) and Johnnie Brown (Brown) were indicted jointly on two counts of rape, two counts of armed robbery, two counts of aggravated kidnaping and two counts of armed violence. Prior to trial, the court approved the State's motion to nolle prosequi the armed violence counts. On May 11, 1982, following a consolidated jury trial in the circuit court of Cook County, defendants were found guilty of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1), armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), and aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, par. 10-2). On May 27, 1982, Clark was sentenced to four concurrent terms of 20 years on two counts of rape and two counts of armed robbery, and concurrently to two terms of 15 years on two counts of aggravated kidnaping. These sentences were to run consecutive to two sentences of 10 and 15 years respectively previously imposed for two prior armed robbery offenses. Brown was sentenced to six concurrent terms of 10 years on two counts of rape, two counts of armed robbery and two counts of aggravated kidnaping. These sentences were to run consecutive to a sentence of six years previously imposed upon him for a prior armed robbery offense.
Both defendants appeal, presenting the following issues for review: (1) whether defendants' fifth amendment right against double jeopardy was violated; (2) whether the trial court erred in excluding expert testimony regarding the reliability of eyewitness identification; (3) whether defendants were denied a fair trial when evidence of another crime was introduced against them; and (4) whether the trial court erred in imposing consecutive sentences. Clark additionally raises the issue of whether the trial court erred in imposing upon him sentences for six separate offenses. Brown also presents as additional issues for review: (1) whether defendant was proven guilty beyond a reasonable doubt; (2) whether defendant's lineup identification was impermissibly suggestive; and (3) whether defendant was denied a fair trial because evidence favorable to him was destroyed.
For the reasons hereinafter set forth, we affirm in part and we vacate three of the sentences imposed by the trial court.
This case was originally assigned to circuit court Judge Genesen. On January 18, 1982, at pretrial proceedings before Judge Genesen, counsel for both defendants filed a motion in limine to exclude the testimony of a State's witness, Mr. Major Barrow, because his testimony would relate to a separate offense of armed robbery against Barrow and would be prejudicial to defendants in the case sub judice. The State argued that Barrow's testimony was relevant to establish defendants' identities, and stated to Judge Genesen, "* * * we would readily concede we are not going into all the minute details of the Major Barrow's case. * * *" The court found Barrow's testimony to be relevant to the question of the identity of defendants and denied their motion.
The State then filed an oral motion in limine to exclude the testimony of Dr. Reid Hastie, a psychologist whom the defense intended to call as an expert on eyewitness identification. The court ruled that factors bearing on eyewitness identification are matters of "common knowledge," and granted the State's motion to exclude Dr. Hastie's testimony.
Defendant Brown filed a motion to suppress his lineup identification, alleging that the clothing ("grey or silvery jacket") worn by him in the lineup was "distinctive" and impermissibly suggestive. On February 1, 1982, following an evidentiary hearing, Judge Genesen found there was not "such a suggestive identification procedure as to cause the identification to be tainted," and denied defendant's motion.
On February 3, 1982, at trial before Judge Genesen and a jury, the State's first witness, Mr. Major Barrow, testified: on February 21, 1980, at approximately 11:15 p.m., he was struck on the head from behind as he was about to open his car door; he turned around and saw two men holding guns; one man hit Barrow with his gun and said, "Let's kill him"; the other man took money out of Barrow's pocket while the first man said, "Where's his wallet, where's his wallet?" In court, Barrow identified defendants as his two assailants.
At this point, Judge Genesen called the attorneys into chambers where he stated that Barrow's testimony was exceeding the scope of the court's in limine ruling by eliciting details of the offense allegedly committed by defendants against Barrow. The State argued that its elicitation of the details of the offense against Barrow was not "intentional" or "purposeful." Judge Genesen, however, found the State had "deliberately elicited prejudicial testimony." The judge stated, "if the defense wants a mistrial, I am going to grant it." Both defendants moved for a mistrial. Judge Genesen declared a mistrial and recused himself.
The case was reassigned to circuit court Judge Marovich. On February 17, 1982, at pretrial proceedings before Judge Marovich, defendants filed a motion to dismiss the indictment on grounds of double jeopardy. The court found the prosecutor's conduct was not "specifically designed to provoke mistrial," and denied defendants' motion to dismiss.
Brown's counsel renewed his motion to suppress Brown's lineup identification and both defendants renewed their motion in limine to bar the testimony of Barrow. The court denied both of these motions and admonished the State not to elicit details of the offense against Barrow. Defendants also renewed their request to call Dr. Hastie as a witness. The court found there was "no need for an expert to give an opinion" on the inherent dangers in eyewitness testimony and denied defendants' motion.
On May 6, 1982, at trial before Judge Marovich, Barrow again testified to the following: on February 21, 1980, at approximately 11:15 p.m., he was struck on the head from behind as he was about to enter his car near 69th and Bishop, in Chicago. He turned around and saw a man with a gun standing directly in front of him. A "taller" man holding a gun was standing off to the side. "The lighting conditions were good because [his] car was parked directly up under the light." The "shorter" man reached into Barrow's pocket and took his money and wallet. The taller man reached into Barrow's car and took his car keys. The shorter man pushed Barrow into the bushes. Both men then drove off in Barrow's car. On the night of the robbery, Barrow told police the shorter man was about 17 to 22 years old and his height was "five three to five seven to five nine." Barrow did not give to the police any age or height description with respect to the taller man. In court, Barrow identified defendant Clark as the taller assailant, and defendant Brown as the shorter assailant. Barrow described the car he was driving as a 1972 green Dodge Polara.
M.G., one of the complainants, testified: on February 22, 1980, shortly after midnight, *fn1 she drove her sister-in-law, complainant D.G., to D.G.'s home at 115th and Bishop, in Chicago; when they pulled up in front of the house, their car was bumped from the rear by another car; two men wearing ski masks and holding guns jumped out of the car; one man approached D.G., placed a gun to her head, and told her to get into the back seat of M.G.'s car; the other man approached M.G. and told her to get into the back seat of the same car; the shorter man sat in the front passenger seat, and the taller man got into the driver's seat of M.G.'s car; *fn2 they drove off and defendants repeatedly told M.G. and D.G. to keep their eyes closed and threatened to kill them. During the drive, Brown, who had removed his ski mask, grabbed M.G.'s purse; M.G. was able to see Brown's face because she was "peeking" with her eyes partially open; they parked in an alley illuminated by pole lights; D.G. was told to get into the front seat; Clark got into the back seat and ordered M.G. to remove her clothes; M.G. was "peeping" and was able to see Clark's face "just for a second"; Clark "fumbled" with M.G.'s breasts, and the two men then switched places; Brown took $5, two gold chains and a wedding ring from M.G.M.G. was ordered to remove the rest of her clothes and Brown pushed her down in the seat and raped her; M.G. opened her eyes and observed Clark, who had his ski mask pulled up, in the front seat; she was able to observe his face for three to four minutes. Two gold chains taken from Brown after his arrest were identified by M.G. as her property. A key chain with M.G.'s car key, found on Clark after his arrest, was also identified by M.G. as belonging to her.
Complainant D.G. testified to the following: defendant Brown, while in the front seat of M.G.'s car, took D.G.'s watch and ordered her to remove her clothes. Defendant Clark then moved to the front seat of the car and ordered D.G. to remove the rest of her clothes. Clark pulled up his ski mask and D.G. was able to view his face before he raped her. D.G. and M.G. were told to get dressed. Defendants again threatened to kill D.G. and M.G.D.G. was ordered out of the car and told to walk to a nearby fence. Defendants kept M.G. in the car for a few more minutes and then released her. Defendants drove off in the M.G. car. D.G. and M.G. ran to a nearby liquor store and called D.G.'s mother-in-law. D.G. and M.G. were taken by the police to the police station where they described one assailant as approximately five foot nine and the other assailant as about six feet tall, and stated that one man was "dark" and the other was "light."
At a lineup held on February 23, 1980, D.G. identified Brown, but was unable by sight to identify Clark. After the men in the lineup spoke, however, she identified Clark by his voice.
Patrolman Ronald Bartman, of the Chicago police department, testified: on February 22, 1980, at approximately 12:15 a.m., he responded to a call at 11458 South Bishop. A 1972 green Dodge was parked on the street with the engine running. Bartman had this car taken to the 22nd district police station.
Officer Beale, of the Chicago police department, testified: on February 23, 1980, at approximately 2:40 a.m., he responded to a call of a battery in progress at 6900 South Yale, in Chicago. Beale saw "three to four male blacks fighting on the street." Clark, one of the men, ran from the fight and Officer Beale chased and arrested him. Officer Beale searched Clark and found several key chains.
Detective Bresingham, a Chicago police officer, testified: on February 23, 1980, at approximately 6:30 a.m., while investigating the instant case at the 7th district police station, he observed two yellow metal chains around Brown's neck. He requested Brown to remove these chains and "inventoried" the chains. These were the chains later identified as belonging to M.G.
Kathy Moorman, a microanalyst for the Chicago police crime laboratory, testified: in December 1981 she performed tests on specimens contained in Vitullo Evidence Kits which had been prepared on February 22, 1980, when D.G. and M.G. were brought by the police to the Little Company of Mary Hospital. Moorman found sperm present on slides which contained vaginal swabs taken from D.G. and M.G. She found semen present on M.G.'s underwear but nothing "significant" on D.G.'s underwear. Moorman tested blood and saliva samples from the complainants and from the defendants in an effort to identify the alleged rapists. She concluded from these tests that Brown did not secrete his "blood type" into his body fluids. He was characterized as a "non-secretor." Moorman also performed blood typing tests on the semen stains and obtained four varying results. Moorman stated that the tests were inconclusive because the stains had been prepared on February 22, 1980, almost two years prior to her tests, and the stains had deteriorated due to this passage of time.
Defendant Brown presented an alibi defense through testimony of Marie Miller, his "girlfriend"; April Brown, his sister; and Gregory Neuvel, his sister's "boyfriend." All three testified that they spent the night of February 21, 1980, at the home of Brown's mother.
Brown's mother testified that the gold chains removed from Brown's neck after his arrest belonged to her.
Jimmy Brown, a friend of defendant Clark, testified: during February 1980 he never saw Clark with defendant Johnnie Brown. On February 23, 1980, he walked with Clark to the vicinity of 69th and Yale and observed a fight between defendant Brown and a second man. When the police arrived at the scene of the fight, however, "everyone ran."
Louis Vitullo, former chief microanalyst for the Chicago police department, testified: on February 22, 1980, Vitullo Evidence Kits were prepared at the Little Company of Mary Hospital. These evidence kits, however, were not tested by Vitullo until February 1982. He performed a semen typing test on M.G.'s underwear and found the "possible presence of H-substance" which could not be left by a non-secretor. Vitullo stated that due to the age of the stains, however, the tests were inconclusive.
At trial, defendants were found guilty of rape, armed robbery and ...