Appeal from the Circuit Court of Knox County; the Hon. Daniel
J. Roberts, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 21, 1985.
Defendant, Roger Hall, appeals from his convictions in the circuit court of Knox County on charges of rape and of armed robbery and from his consecutive sentences of 30 years' imprisonment imposed on each count.
According to the testimony adduced at trial, a young woman student was attacked and raped about 8:40 p.m. on January 19, 1983, as she was returning to the Knox College campus from a nearby convenience store. A man jumped out from behind some shrubbery as she passed near the science building, grabbed her from behind, and pulled her toward the bushes. He asked for money, took $1.95 (three quarters, two dimes, and a $1 bill folded in fourths) from one of her pockets, placed a knife at her throat, and forced her to walk to a nearby alcove, where he told her to disrobe. He then raped her. After a total elapsed time of about 20 minutes, the man released her. Immediately after the rape, the victim returned to the sidewalk near the store, where she encountered two young men, one of whom called the police, while the other walked her to her dorm. The police arrived at 9:10 p.m.
The victim described her attacker as a white male between 5 feet 6 inches and 5 feet 7 inches tall, weighing 145 to 150 pounds, with a mustache, long beard, and shoulder-length hair. This description was broadcast over the police radio where a police officer heard it and thought of defendant. Two officers went to defendant's apartment some three blocks from where the attack took place. Defendant answered the door in his underwear and admitted the officers who looked around the apartment, noting same damp towels and also noting that defendant had alcohol on his breath and that he spoke with a southern accent.
The officers left defendant's apartment about 9:27 p.m. and then received a radio message indicating that the victim had further described her attacker as having a southern accent and alcohol on his breath and also as being dirty. The officers then started to go back to defendant's apartment; on the way, they saw defendant in a phone booth. When they stopped, he agreed to go with them to Cottage Hospital for a showup identification.
In the meantime the victim had been taken to the hospital for examination. After the victim was notified that a suspect was being brought in for identification, she was taken to the emergency room door. When defendant arrived at the hospital with the two policemen he was asked to speak. The victim then identified him as her assailant.
While at the hospital, various blood and hair samples were collected from the victim and from her clothing for testing and comparison with samples collected from defendant. When defendant was searched, the officers found a $1 bill folded four times plus 10 coins (five quarters and five dimes). The victim also testified that she later identified defendant a second time at the police department where she saw him through a one-way window.
Testifying in behalf of defendant was a girlfriend of his who stated that she was with defendant until about 8:30 or 8:35 p.m. the evening of January 19 and that when he left her he was clean and well-groomed. In rebuttal the State called an investigating officer who said that when he interviewed defendant at 9:17 p.m. on January 19, 1983, defendant said he had been drinking at the Silver Front Tavern until he left between 8:20 and 8:30 p.m., and that he had not had contact with anyone between the time he left the tavern and the time the officers came to his apartment. The tavern was about three blocks from defendant's apartment.
There was considerable scientific evidence introduced which indicted that various fibers, hairs, blood, and seminal material found on the victim's clothing and person could have come from defendant (i.e., did not exclude him), and none were found that could not have been either his or hers. The defendant matched the victim's physical description of her attacker as to height, weight, hair, etc. At the conclusion of the trial, the jury found defendant guilty of rape and of armed robbery.
While post-trial motions were pending, the trial court conducted a hearing in response to a letter from defendant which questioned the adequacy of defense counsel's representation. The court appointed separate counsel to investigate the questions raised by defendant and to report to the court. The attorney so appointed interviewed witnesses, visited the scene of the crime, reviewed the trial preparation work of trial counsel, and considered other relevant materials from the files, though not the trial transcript, and reported to the court his conclusion that trial counsel's representation of defendant was not of such a character as to render the court proceedings a sham or farce, nor was it of such low calibre as to be incompetent. The prosecuting attorney agreed with that conclusion, and trial court stated that he had read the report and concurred with the conclusion. Defendant's request for different counsel was then denied, and the court ordered trial counsel to proceed to represent defendant during the hearings on the formal post-trial motion and at sentencing.
At a later date, trial counsel submitted a motion to withdraw from the subsequent proceedings because defendant no longer trusted counsel, but that motion was denied. At the hearing on the post-trial motion which followed the hearing on the motion to withdraw, defendant refused to enter the court room. The hearing was continued, and at a later date, when the hearing resumed with defendant present, trial counsel argued numerous issues raised in the original motion for a new trial, and also presented several issues raised by defendant, including the failure of the State to disclose certain test results, and also trial counsel's incompetence, in order to preserve those issues for appeal. The trial court denied the motion for new trial, and then proceeded to the sentencing hearing, again with trial counsel representing defendant.
After hearing arguments of counsel, the trial court ruled that this was an appropriate case for consecutive sentences in that the armed robbery and the rape were two separate acts. The court then imposed a 30-year sentence on each count, to be served consecutively.
• 1 The first issue raised on appeal is whether the identification of defendant as the attacker was unnecessarily suggestive and conducive to mistaken identification so as to deny defendant due process of law. Defendant argues that ...