Appeal from the Circuit Court of Cook County; the Hon. Jerome
Burke and the Hon. Michael L. Getty, Judges, presiding.
JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Victor Williams was convicted of rape and armed robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 11-1, 18-2) and sentenced to concurrent terms of 15 years' imprisonment for each offense. He raises the following pertinent issues for our review: (1) whether the trial court erred in admitting into evidence the victim's pretrial and in-court identifications of the defendant; (2) whether defendant's conviction for armed robbery is supported by evidence establishing beyond a reasonable doubt that the defendant utilized violence or threat of force in order to take the victim's property; (3) in the event that the armed-robbery conviction is reversed, whether defendant should receive a new sentencing hearing based solely upon the rape conviction. For the reasons set forth more fully below, we affirm the defendant's conviction of rape, reverse the conviction of armed robbery, reverse the sentence imposed on the rape conviction, and remand the cause to the trial court for a new sentencing hearing based solely upon the defendant's conviction of rape.
Defendant was convicted of the rape and armed robbery of a woman in the city of Chicago on June 24, 1979, shortly after midnight. Evidence produced below established that on the night of June 23, the victim and her fiance went to pick up the victim's child from the victim's mother, who had watched the child for the evening. Because the elevator in the building was not serviceable, the victim and her fiance walked up the stairs to the 12th floor, on which the apartment of the victim's mother was located. They later descended the stairs to exit the building. As they reached the third floor, the victim realized that she had left her purse in her mother's apartment and again walked upstairs to her mother's apartment while her fiance and the baby went to the car to wait for her.
When she reached the 12th floor, the victim saw a man standing in the hallway approximately 5 to 10 feet away from her. The lighting conditions in the hallway were good and the victim saw the man's face for approximately two or three seconds. She noticed that he was wearing a black leather jacket and had a length of clothesline wrapped around his hand. As she walked down the hallway towards her mother's apartment, the victim passed this man, looked back, and noticed that he was looking at her. After looking back, the victim turned her face toward the direction of her mother's apartment. The man then grabbed her from behind, clamped one hand over her mouth, put a knife to her neck and stated, "Shut up or I'll kill you."
At knifepoint, the victim was pulled backwards to the stairwell where her assailant took her down three flights of stairs to the ninth floor. The victim was dragged down the hallway to the ninth-floor laundry room. She heard the assailant fumbling with some keys before he opened the laundry-room door. Once he had opened the door, he pushed her inside the laundry room. The room was dark. When the victim asked not to be killed or injured and mentioned that she had a child, her assailant again threatened to kill her if she did not remain silent. The victim's hands were tied in front of her with the attacker's clothesline, and she was gagged and blindfolded with pieces of clothing torn from her body by her assailant. After ripping the remaining clothing from her body and threatening again to kill her, he sexually assaulted and raped the victim.
After the rape, the assailant remarked that he had dropped his knife case and that he "should kill [the victim] now." He then turned on the light in the room in an apparent attempt to locate the case and told the victim to count to 100 before she left the room. He then untied the victim's hands and left the room.
The victim took off her blindfold, removed the gag from her mouth, put on her clothing and ran downstairs to her fiance's car where she waited for his return. The fiance had gone to look for her on the 12th floor, where he discovered the victim's shoes and a black knife holder inscribed with the name "Buck." A short time later, the victim was rejoined by her fiance and a Chicago police department officer. She was bruised, her eyes were swollen, and she was crying and screaming hysterically. She told her fiance that she had been tied up and raped at knifepoint by a man wearing a black leather jacket.
The defendant was arrested in the stairway of the building shortly thereafter by officers of the Chicago police department. At the time of his arrest, he was wearing a black leather jacket, and had in his possession a piece of rope, the victim's necklace, a set of keys, one of which the police determined opened the laundry room in the building where the attack occurred, a black-handled knife inscribed with the name "Buck," and his high school identification card bearing his photo.
After the victim had gone to her mother's apartment so that she could dress and obtain her purse, she was taken to a Chicago police station where she was interviewed by Officer Kutz of the Chicago police department for the purpose of attempting to have her identify the property which Officer Kutz had recovered from the defendant at the time of his arrest. The victim immediately identified her gold necklace. She stated that she did not realize it was missing until she saw it at the police station. The victim also identified the rope taken from the defendant as that used to bind her hands, and that which she had seen wrapped around her assailant's hands prior to her abduction on the 12th floor.
The circumstances surrounding the victim's viewing of the defendant's identification card are disputed. It is clear, however, the she saw the card and recognized the person in the photograph as her attacker.
Later the same day, the victim and her fiance returned to the police station to view a five-man lineup which included the defendant. The fiance had spoken to the victim before the lineup and told her that he had seen the defendant when he was arrested, but did not tell the victim what the defendant looked like or assist her in her attempts to identify her attacker in the lineup. The defendant was wearing a light tan colored cloth jacket in the lineup, and was identified by the victim.
Following defendant's arrest, defendant was questioned by a detective of the Chicago police department and an assistant Cook County State's Attorney. After being advised of his Miranda rights, the defendant stated that he understood his rights and wished to give his version of what occurred on the night in question. According to the testimony of the detective who was present during interrogation, defendant provided three versions of the events immediately prior to his arrest. Each of them was conflicting and exculpatory. The defendant's statements were never reduced to writing.
Defendant was subsequently formally charged with the rape and armed robbery of the victim. His motion to quash his arrest was allowed by the trial court; this order was later reversed by this court on appeal and the cause remanded for further proceedings. (People v. Williams (1981), 95 Ill. App.3d 1201 (Rule 23 opinion).) On remand, the defendant filed a motion to suppress the victim's identification. The motion was based upon the assertion that the identification was the result of impermissive suggestion initiated by Officer Kutz when he allegedly showed the victim the defendant's ...