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People v. Testa

OPINION FILED JUNE 29, 1984

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THOMAS TESTA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Gerald S. Murphy, Judge, presiding.

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant Thomas Testa was convicted of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a)) and sentenced to 50 years in the Illinois Department of Corrections, to be served consecutively with a 15-year sentence for a prior felony conviction. Defendant appeals, raising the following issues for review: (1) whether the trial court erred in denying his motion to suppress evidence; (2) whether the denial of his motion to suppress photographic identification was error; (3) whether the court erred in denying his motion to exclude the dates of prior convictions; (4) whether the court erred in denying his request to cross-examine the victim as to her interest in a civil lawsuit; (5) whether he received a fair trial as a result of certain alleged prejudicial remarks made by the State in closing argument; (6) whether the court abused its discretion in sentencing him to a 50-year extended-term sentence to run consecutively with a prior 15-year sentence; and (7) whether his verdict should have been modified to a finding of guilty but mentally ill. For the reasons set forth below, we affirm.

The record reveals that on April 17, 1980, the victim was employed as a singer at a hotel in suburban Rosemont. On said date, at approximately 2 a.m., she left work and walked to her car at the far end of the hotel's parking lot. Upon approaching her car, the victim was grabbed from behind, spun around and held by the throat. Her attacker demanded she open her car door and, when she refused, began strangling her. After forcing her into the car, the attacker held her and began grabbing her hair. During the ensuing struggle, the attacker pulled out handfuls of the victim's hair. He then forced her to have sexual intercourse with him. Later, after telling the victim he loved her and asking for her forgiveness, he left the car.

Thereafter, the victim drove to the Rosemont police station. She gave the police a description of her attacker and told them she had scratched him under his left eye. The victim was then treated at a hospital and at that time shown a photographic lineup. The victim identified a photograph of defendant as her attacker, a warrant was issued for his arrest and, shortly thereafter, the police arrested defendant at his apartment and seized various items of clothing and hair from his bedroom which were later used as evidence at trial.

Prior to trial, defense counsel made motions to suppress identification and evidence. The physical lineup wherein defendant was present was suppressed by agreement, but the photographic identification was permitted to be used in evidence. Defendant's motion to suppress the articles of clothing taken from his bedroom was also denied.

At trial, the State called as a witness the victim, who testified to the facts previously stated. The State's other witnesses included arresting Officer Lee Mayer, who testified that defendant had a scratch above and below his left eye when he was arrested. Also testifying for the State was a forensic scientist who analyzed the physical evidence and stated that the blond hair fibers found on defendant's clothing were consistent with the victim's hair and could have originated from her. The only witness for the defense was defendant, who raised an alibi defense.

Based on the foregoing evidence, the jury returned a verdict of guilty. At sentencing, the State waived aggravation and the defense called in mitigation two witnesses who testified as to defendant's mental condition. Defendant was sentenced to serve 50 years, consecutively with a 15-year sentence for a prior felony conviction.

I

• 1 Defendant initially urges that the trial court improperly denied his motion to suppress evidence consisting of two plaid shirts and two pairs of blue jeans. He alleges the trial court erred in finding that the seizure of such evidence was proper under the plain view doctrine. We disagree.

At the hearing on the motion to suppress, Officers Lee Mayer and Joel Smith testified that when they arrived at defendant's residence to arrest him, he was wearing only his underwear. Following his arrest, defendant indicated he wanted to get dressed before going to the police station, and the officers escorted him to his bedroom to change. The officers further testified that as they entered defendant's bedroom they observed two pairs of blue jeans and two plaid shirts on the floor, and noticed long blond hair fibers on one of the shirts. Officer Smith then took the plaid shirts and jeans and placed them in bags. Officer Mayer also stated that during an interview with the victim approximately two hours prior to the arrest, she stated that her attacker was wearing a plaid jacket or shirt and blue jeans. She also told them that he had pulled out large amounts of hair from her head. Officer Mayer described the victim's hair as blond and fairly long.

In Illinois, the seizure of evidence is proper under the plain view doctrine when the following conditions are satisfied: (1) the object seized is in plain view; (2) the officer views the object from a position where he has a right to be; and (3) the facts and circumstances known to the officer at the time he acts give rise to a reasonable belief that the items seized constitute evidence of criminal activity. People v. Montgomery (1980), 84 Ill. App.3d 695, 698, 405 N.E.2d 1275; People v. Holt (1974), 18 Ill. App.3d 10, 12, 309 N.E.2d 376.

In the present case, the State met all three requirements for a plain view seizure. First, arresting officers Mayer and Smith testified that the clothing in question was in plain view when they entered defendant's bedroom. We note that defendant testified he believed the clothing was in his bedroom closet, which was closed when the officers entered the bedroom; however, defendant contradicted himself at one point with regard to whether he had put away the pair of jeans he wore the previous night. The trial court found the officers' testimony to be credible. At a hearing on a motion to suppress, it is the function of the trial court to assess the credibility of witnesses (People v. Brown (1980), 81 Ill. App.3d 271, 274, 401 N.E.2d 310), and the court's findings should not be disturbed unless manifestly erroneous (People v. Stamps (1982), 108 Ill. App.3d 280, 291, 438 N.E.2d 1282). Here, the trial court was able to observe the witness' demeanor, and there is no showing that its findings were manifestly erroneous.

The second requirement for a plain view seizure is also satisfied here because the officers viewed defendant's clothing from a position where they had a right to be. Officers Mayer and Smith testified that when they arrested defendant at the door to his residence he was wearing only his underwear and asked to put on some clothes. At this point, the officers quite properly accompanied defendant into his bedroom while he dressed. Ordinary prudence dictates nothing less to assure the safety of the arresting officer.

Finally, the facts and circumstances known to the officers at the time they seized defendant's clothing gave rise to a reasonable belief that the items constituted evidence of criminal activity. The record discloses that during an interview with the victim shortly prior to defendant's arrest, the victim told officers that her attacker wore a plaid jacket or shirt and blue jeans, and that he had pulled hair from her head. The officers noticed at the time that the victim had long blond hair. Under these circumstances, when the officers entered defendant's bedroom and saw plaid shirts and blue jeans in a pile on the floor, with long blond hairs on one of the shirts, the incriminating nature of these items readily became apparent. Hence, the third requirement for a plain view seizure was met in this case.

Having determined above that the evidence in question was a proper seizure under the plain view doctrine, we hold that the denial of the motion to suppress evidence was not error.

II

• 2 Defendant next posits that the denial of his motion to suppress photographic evidence was improper, assigning two grounds for error. First, he argues that the words "Thomas A. Testa, Sex Offender," appearing on the reverse side of his photograph, rendered the photographic evidence prima facie suggestive. This first argument must fail, however, since the victim testified that she looked only at the faces in the photographs and did not see the reverse sides. The trial court specifically found that the victim "never looked at the back of the pictures." We find no reason to disturb this finding, given the victim's unequivocal testimony and the trial court's superior position to evaluate her credibility.

Defendant's second ground for error pertains to a physical lineup which was conducted after the photographic identification and later suppressed by agreement of the parties. The physical lineup was composed of Latinos, while defendant is Italian. Defendant argues that the racial distinctness of this lineup rendered it suggestive and, under the "totality of the circumstances," indicates the use of generally suggestive procedures used by the police. He relies on People v. Camel (1974), 59 Ill.2d 422, 431, 322 N.E.2d 36, which discussed the "totality of the circumstances" test set forth by the supreme court in Stovall v. Denno (1967), 388 U.S. 293, 302, 18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967, 1972, and restated in Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L.Ed.2d 401, 411, 93 S.Ct. 375, 382. The court in Camel reiterated the following factors to be considered in evaluating the reliability of pretrial identification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. People v. Camel (1974), 59 Ill.2d 422, 431-32.

Application of these five factors in the instant case demonstrates that the victim's photographic identification was reliable. First, the victim had ample opportunity to view defendant at the time of the crime. She testified that she observed him for 7 to 10 minutes when he first grabbed her and struggled with her outside the car. At this time, fluorescent overhead lights were turned on in the parking lot. The victim stated she was able to view defendant's face for an additional 7 to 10 minutes while he attacked her inside the car; during this time the car's dome light was on because the driver's door was not completely closed.

Second, the victim viewed defendant's face with a heightened degree of attention; as a rape victim she "was no casual observer, but rather the victim of one of the most personally humiliating of all crimes." (Neil v. Biggers (1972), 409 U.S. 188, 200, 34 L.Ed.2d 401, 412, 93 S.Ct. 375, 382-83.) Third, the witness' prior description of defendant was highly accurate and thorough. At the hearing on the motion to suppress identification, she recalled telling the police her attacker was "short, he looked Italian-looking; he had dark hair, dark eyes. I told * * * [the police officers] that I had also scratched him under the eye, that he was wearing a plaid jacket, blue jeans and I described the car he was driving." When the police arrested defendant, they found clothing which matched this description and saw defendant had a scratch below his left eye. Fourth, the victim's identification demonstrated a high degree of certainty; she testified she stopped ...


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