Appeal from the Circuit Court of Cook County; the Hon. Thomas
A. Hett, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant was found guilty of rape, deviate sexual assault, unlawful restraint, home invasion, residential burglary and armed violence and was sentenced to an extended prison term of 50 years on the rape offense only (Ill. Rev. Stat. 1981, ch. 38, par. 11-1), the trial court having found that the other offenses merged with the rape offense.
On appeal to this court, defendant contends that: "(1) defendant's Sixth Amendment right to counsel was violated where he was placed in a lineup without notice to appointed counsel; (2) defendant was denied due process of law and a fair trial where the trial court allowed his impeachment with four prior convictions without exercising its discretion in determining their admissibility as required under People v. Montgomery (1971), 47 Ill.2d 510; [and] (3) defendant was denied a fair trial where the trial court admitted evidence of [the] complainant's identification from a photographic array where the prosecution failed to produce the photographs. This error prevented defendant from establishing that the photographic procedure was unduly suggestive and rendered [the] complainant's identification testimony unreliable." We affirm.
The complainant testified that at approximately 1 p.m. on January 10, 1982, she entered the hallway of her apartment building and walked up the stairs to the first floor, where she saw defendant descending the stairs from the second floor. The defendant walked past the complainant to a fire-escape door, then turned and walked back to her. The complainant testified that defendant displayed a gun and said, "Don't scream and I won't hurt you. Open the [apartment] door and go inside." They entered the complainant's apartment and defendant asked her why she lived alone, to which she answered, "Because there was no one to live with me." Defendant then pointed the gun at the complainant's head, told her to kiss him and began to unbutton her coat and clothing, while holding the gun in his left hand. Defendant told the complainant to sit in a chair, to unfasten his pants and perform oral copulation on him. She did so, whereupon he told her "to get up and go to the washroom and clean up," which she did, with the defendant following behind.
Defendant then told the complainant to lie down on the living room floor. Defendant went into the kitchen, took a wallet that was on top of the refrigerator and returned to the living room where the complainant was still lying on the floor. Defendant asked the complainant how long she had lived in the apartment, whether she had a job and how she paid her rent. The complainant remained on the floor nude as she answered his questions. During this conversation, the janitor of the building unexpectedly opened the front door of the apartment and looked into the living room. The complainant screamed "No!" The janitor said "Oops!" and walked out. The defendant asked the complainant why the janitor had come and the complainant explained that he probably came to exterminate her apartment. Defendant then ordered the complainant to spread her legs so he could have sex with her, and he did. After a few moments, the defendant went into the kitchen, wiped himself off with a towel and told the complainant that he was going to shoot her. The complainant pleaded for her life. Defendant ordered the complainant to get dressed. She again began to cry and told the defendant that she was glad he did not kill her. The defendant then left her apartment.
The complainant further testified that after the defendant left she started to pack her clothes, that someone rang the buzzer to her apartment and that she was afraid to answer the door. Soon thereafter she heard her mother's voice at the door and the complainant let her in. She told her mother that she had just been raped. The complainant's mother called the police, who came and drove the complainant to the hospital. Eight days after the incident the complainant identified defendant from police photographs.
Cross-examination of the complainant disclosed that the defendant remained in the apartment for approximately 30 minutes, that the complainant's description of the assailant given by her to the police was: black, approximately 170 pounds, moustache, and that he was taller than the complainant.
Detective Hans Heitmann, the State's next witness, testified that he conducted a lineup which included the defendant and which was viewed by the complainant. Heitmann identified a photograph of the lineup, State's exhibit No. 1, and stated that the complainant identified defendant in the lineup. Under cross-examination, Heitmann testified that he did not show photographs of the defendant to the complainant. He also stated that "[t]hey [the pictures] were first mentioned today. I have no knowledge of any photographs prior to today." Under further cross-examination, Heitmann stated that the complainant identified the defendant the moment she stepped to the window and looked out.
It was stipulated that the janitor, Robert Alvardo, would testify that when he opened the door to the complainant's apartment he observed the complainant crying on the floor and a black male sitting in a wicker chair and that when he left the complainant's apartment he called the complainant's mother. It was further stipulated that Joan Taylor, the complainant's mother, received a telephone call, that she went to her daughter's apartment and that when she arrived the complainant told her that she had been raped. The stipulated medical examination of the complainant proved positive for vaginal sperm.
Defendant called Officer Raymond Behnke, who testified that he talked to the complainant in her apartment on the day of the incident and that she gave him the following description of her assailant: late twenties, dark complected, moustache and, as Behnke estimated based on the complainant's description, five feet, four inches tall and 170 pounds.
Testifying in his own defense, defendant stated that he was not in the complainant's apartment on the day of the incident. He further stated that while in custody at the police station he participated in a lineup, that he was asked by an officer to wear in the lineup the burgundy and white jacket he had on when he was arrested and that pictures were taken of the lineup. Defendant also testified that on the day following his arrest, while in custody at the police station but before he participated in the lineup, a policeman took his picture, at which time he had on the burgundy and white jacket that he was wearing at the time of his arrest.
Cross- and redirect examination of the defendant disclosed that at the time of his arrest defendant resided at 4224 North Ashland, that his height was 5'10", that he was 28 years old, was not married and that he was not working on the day of the incident. At the close of this testimony defendant rested.
Defendant then made a motion to suppress the complainant's in-court identification testimony on the grounds that it was improper for the police to have the defendant appear in a lineup wearing the same clothing (burgundy and white jacket) that he wore in the photograph which was previously shown the complainant. The complainant selected this photograph of the defendant from an array of others prior to her lineup identification of the defendant. Defendant further argued that the pictures shown the complainant should have been "produce[d] in open court, during pretrial examination, or at trial." Additionally, he argued that because his attorney was not notified that he (defendant) would appear in a lineup, the complainant's identification of the defendant was "impermissible, suggestive and therefore tainted."
The trial judge denied defendant's motion to suppress the complainant's in-court identification on the grounds that "there is not enough here to suggest that there was suggestiveness." It was then stipulated that defendant had seven felony convictions, four of which occurred within the past 10 years. Those four convictions were theft, attempted murder, armed robbery and aggravated battery. The trial court stated that the complainant was a very credible witness who "had over an hour, in the middle of the daytime to view her assailant," and that the complainant was corroborated by (1) the janitor's stipulated testimony that he opened the complainant's apartment door and saw her nude and crying on the floor; (2) her prompt rape outcry to her mother; and (3) the stipulation of the microbiologist that the complainant's vaginal tests were positive for sperm.
The trial court further determined that the complainant's ability to describe the defendant was "relatively accurate," that the complainant's description of the defendant as 190 pounds, moustache and maroon and gray jacket were accurate, and that the defendant admitted that he owned and wore "that jacket" on the day he was arrested.
The record in the case at bar reveals that the defendant was brought before the court on a series of charges for which the court appointed a public defender to represent him. These series of charges did not include the instant offenses. The preliminary hearing on these series of charges was continued, and the defendant was returned to the lockup. Police officers subsequently removed the defendant from the lockup and placed him in a lineup to be viewed by the complainant for the instant offenses. Defendant contends that this was done without notice to his court-appointed counsel and without admonition to him of his right to counsel at the lineup in violation of his sixth amendment right to counsel. The State responds that the defendant's court-appointed attorney was not appointed to represent the defendant for the offenses for which the defendant was placed in the lineup, i.e., the instant case, that the defendant had not yet been charged with commission of the instant offenses at the time he was placed in the lineup, and that adversarial proceedings in the instant offenses thus had not been initiated. Furthermore, the State contends, defendant was advised of his right to counsel at the lineup, but he knowingly waived this right.
The record shows that Detective Heitmann, who was called by the defendant on his motion to suppress the complainant's ...