Appeal from the Circuit Court of Cook County; the Hon. Francis
J. Mahon, Judge, presiding.
JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 15, 1985.
Following a jury trial, defendant was convicted of rape, deviate sexual assault and armed robbery and sentenced to concurrent terms of 25 years for armed robbery, 50 years for rape, and 50 years for deviate sexual assault. On appeal, he contends that (1) the trial court improperly denied his motion to suppress a lineup identification; (2) the State did not prove beyond a reasonable doubt that he was one of the offenders; (3) he was denied a fair trial by the allowance of evidence concerning the arrest of a co-defendant whose case had been severed; (4) he was denied due process, by the jury's out-of-court experiment regarding identification; and (5) the 50-year extended sentences for rape and deviate sexual assault were improper.
At the suppression hearing, defendant testified that he was arrested on November 17, 1981, in the criminal court building while accompanied by Xavier Velasco, the public defender representing him in a rape case before Judge Pincham. He was told by the officers that they had an arrest warrant for rape. He admitted that his attorney (Velasco) read the Miranda warnings to him at the time of the arrest. He did not ask Velasco to accompany him to the police station for the lineup, nor did he ask to have another attorney present, even though Velasco told him that he had that right.
Officer Slattery testified that after the arrest of co-defendant Harold Wilson on September 27, 1980, and the subsequent photo identification of defendant by the complainant, he went before Judge DiVito on October 1, 1980, and obtained a warrant for defendant's arrest. He executed that warrant on November 17, 1981, at approximately 10:30 or 10:45 a.m. outside Judge Pincham's courtroom and conducted a lineup at the seventh district police station at 1:30 p.m. of that same day. Officer Slattery stated on cross-examination that Velasco advised defendant of his rights at the time of the arrest and that he (Slattery) told Velasco that he intended to hold a lineup at the station. Later that day, he phoned Velasco's office and told the person who answered that defendant's lineup would be held that day at the seventh district police station at 1:30 p.m. There was no attorney present on defendant's behalf at the lineup.
Velasco testified that he was present when defendant was arrested, that he personally advised defendant of his rights, and that Officer Slattery did inform him that he intended to conduct a lineup, but that he did not go to the police station for the lineup because he was the only public defender in the courtroom that day. He also stated that he did not receive the message from Officer Slattery regarding the exact time the lineup would be held. The motion to suppress the lineup identification was denied.
At trial, complainant an elementary school teacher testified that on September 20, 1980, she was returning to her mother's house after having dinner with several other teachers, and when she reached the front door of her mother's building, two men pushed her into the front hallway and up against the mailboxes. As she was standing facing the two men, defendant took her necklace and her earrings. At this time, she was face-to-face with him and about a foot away. The other man, whom she identified as co-defendant Harold Wilson, hit her in the face with his fist and then held a knife to her neck, telling her, "This is for real, bitch." One of the two men removed the rings from her hand and took her purse, after which defendant told her to drop to her knees; but after Wilson noted that they could be seen from the street, defendant told her to unlock the door to the inner hallway. While she tried to find the key, Wilson hit her again. The men then pushed her down the hallway to the foot of the stairway, where defendant told her to remove her clothes and kneel down. He then forced her to perform a deviate sexual act for about 15 minutes while telling her precisely how to do it. As she did this, Wilson again hit her in the face with his fist. After defendant finished, Wilson forced complainant to perform the same deviate sexual act for another 10 to 15 minutes. Defendant then forced her to perform another deviate sexual act, and at the same time Wilson again hit her in the face. Both defendant and Wilson then raped her. While Wilson raped her, defendant again forced her to perform a deviate sexual act. She was then forced to lie down in Wilson's urine, with her dress pushed into her mouth and her hands and feet tied together with her stockings, and as they were leaving one of the men kicked her in the side. As soon as the door locked behind them, she broke the nylons, took the gag out of her mouth, and ran to the door, where she saw them throw her house keys across the street and start down the street. She ran upstairs and told her mother that she had been raped. Her mother called the police, who took her to Jackson Park Hospital, where she was examined. Complainant also testified that on September 27, 1980, she and her husband, accompanied by his brother and a friend, went to the Toast of the Town lounge to look for the men who had raped her. She pointed Wilson out, and Allan Hudson one of the men with her party who was a guard for the Cook County Sheriff's Department took him from the bar with the assistance of complainant's husband. Complainant went to the police station after Wilson's arrest and selected defendant's picture from five or six photographs shown her by Detective Slattery. She also identified defendant from among four or five men at a lineup on November 17, 1981.
She did not remember giving a description to the officers at her mother's house, but she did so later at the hospital. She estimated that defendant was approximately 24 or 25, about 6 feet or 6 feet 1 inch, and weighed 160 to 170 pounds. She did not tell the officers that he was limping. She did testify that she did not watch defendant walk at any point during the incident and that she only looked at the knife for a few seconds, describing it has having a "silver blade."
Complainant's mother testified that when she opened the door to see her daughter on the night of the rape, her daughter's face was battered and bruised and her hair and clothing were in disarray.
Complainant's husband testified that he came over to her mother's house on the morning of September 20, 1980, and saw that his wife's eyes were swollen and that she had abrasions on the left side of her cheek. He, Allan Hudson, and Allan Rockemore accompanied complainant to several bars in an attempt to find the rapists. She identified Wilson in one of the bars, and they detained him until the police arrived.
Allan Hudson, a Cook County deputy sheriff, testified that on September 27, 1980, he with complainant's husband and Rockemore detained Wilson until the police arrived. He frisked Wilson while they waited, and found that he had a pocket knife with a yellow handle.
Officer Ambrose testified that she answered the call from the group at the Toast of the Town lounge and took Harold Wilson into custody. She was given the pocket knife, describing it as a "small pocket knife with a yellow handle, yellow plastic handle" and a blade that was approximately four inches long. After she turned Wilson over to Detective Slattery, she completed her paperwork which included inventorying the knife found on Wilson. The knife was subsequently destroyed by mistake.
Detective Slattery testified that he showed complainant an array of five photographs, from which she identified defendant, and after his arrest on November 17, 1981, complainant also made a positive identification of him at a lineup. He stated that at the hospital complainant did not describe either of her attackers as having a beard, a mustache, or a peculiar type of hairline. She described one of the offenders as being over 6 feet tall, or approximately 6 feet 1 inch.
Defendant testified that he was 6 feet 5 inches, 26 years of age, and had a scar on his upper lip. He also said that he has the same goatee, mustache and sideburns that he had in 1980, and that he has had a beard and mustache continuously since July 1979. He was shot in the chest and the right foot on August 22, 1980, during an armed robbery and was still limping in September 1980. The bullets were not removed until June 1982.
Officer Moore testified that he spoke to complainant at her mother's home shortly after the rape. She described the taller man as approximately 6 feet 1 inch and did not mention that either ...