APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
527 N.E.2d 319, 172 Ill. App. 3d 1087, 122 Ill. Dec. 821 1988.IL.434
Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
After a jury trial, defendant, Miguel DeHoyos, was found guilty of rape, deviate sexual assault, robbery and theft and was sentenced to 22 years' imprisonment for rape and seven years' imprisonment for robbery, the sentences to run concurrently. On appeal, defendant contends that (1) his motion to quash his arrest and suppress evidence was improperly denied; (2) evidence of other crimes committed by defendant was improperly introduced; and (3) remarks made by the prosecutor during closing argument deprived him of a fair trial.
At trial, the victim testified as to the following facts. On June 25, 1983, at approximately 2 a.m., the victim was asleep in her apartment when she awoke and saw defendant standing in her bedroom doorway. The victim repeatedly asked the defendant to leave but he did not. The defendant asked the victim to take him to the front door of the apartment. The victim got out of bed and picked up her door keys. Just as she reached the front door, the defendant grabbed her arm. The victim screamed and the defendant placed his hand over her mouth and held her against the wall. While holding the victim against the wall, the defendant shut a living room window which was wide open. The defendant and the victim returned to the bedroom. The defendant told the victim that his name was "Joe," that he was a Chicago policeman who was on vacation and that he was being chased by a gang. Defendant showed the victim a picture of a young girl who he stated was his daughter. The defendant went with the victim into the kitchen and took a can of beer from the refrigerator.
Defendant directed the victim back into the bedroom and told her he wanted "to have her." The victim tried to talk the defendant out of harming her, but he pinned her onto the bed, climbed on top of her and covered her mouth and nose. Defendant told the victim he had killed people in Vietnam and that killing someone with his hands would mean nothing to him. He told the victim she "was going to have to do this." The defendant told the victim to unrobe and forced the victim, against her repeated pleas to stop, to engage in the acts of oral, vaginal and anal intercourse. Afterward, the defendant fell asleep upon the victim and she tried to move out from under him. The defendant, however, awoke and forced her to engage in additional sex acts against her will. The victim was in a great deal of pain and asked defendant if she could go to the bathroom. The defendant agreed and accompanied her to the bathroom. Defendant asked if he could stay with her and the victim told him he could not and that her family would arrive at her apartment in the morning. At approximately 5:45 a.m., the victim's alarm clock sounded and defendant got up and dressed. Defendant used some paper towels from the kitchen to wipe off the beer can he had taken earlier. Defendant placed the victim in her bedroom closet and shut the door. The victim heard drawers in her bedroom being opened, the phone ring a number of times and a window being raised. She heard the phone ring again and got out of the closet, closed the window and locked it and answered the phone. The victim spoke to her sister on the phone and related what had happened. Shortly thereafter, her sister, brother-in-law and the police arrived at her apartment.
Prior to trial, defendant moved to quash his arrest and to suppress evidence against him and the trial court conducted an evidentiary hearing. The record from the evidentiary hearing reveals the following facts. On July 22, 1983, at approximately 12:45 a.m. two Chicago police officers responded to a complaint of a street disturbance. When the police officers arrived at the designated location, they observed defendant exit an alley, turn back and reenter the alley, and then change his direction and once again exit the alley. The officers approached the defendant and inquired why he had been in the alley. Defendant stated he had been out walking and had been talking to a woman in the alley who had been walking her dog. Upon inquiry by the officers, defendant was unable to produce any documents to establish his identity. The defendant was taken to the police station for a "name check." At the police station, the defendant stated his name, address and place of employment. Further, he was photographed and released. The following day, the photograph of defendant was shown to the victim in a photo array and she identified him as the man who raped her.
After the victim had identified the defendant, the police officers proceeded to defendant's apartment and recovered property which was taken from the victim's apartment on June 25, 1983, and in two subsequent robberies of the same apartment. The defendant was arrested and was again identified in a police lineup by the victim as the man who assaulted her. Defendant's motions to quash his arrest and to suppress evidence were denied. I
Defendant first argues that the trial court erred in denying his motions to quash his arrest and suppress evidence where he was improperly stopped, seized, questioned and photographed by the police. The State maintains that the police officers were aware of sufficient facts to justify an investigatory stop of defendant and that no improper seizure occurred since defendant consented to the police officers' request to accompany them to the police station.
In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and its progeny, the United States Supreme Court held that a police officer may stop and question an individual where the officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot. Under the guidelines of Terry, a police officer under appropriate circumstances, and in an appropriate manner, may approach and stop an individual in order to investigate possible criminal behavior provided the officer's decision to stop is based on specific and articulable facts which, when combined with rational inferences therefrom, reasonably warrant an investigative intrusion. (People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209, citing Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In determining whether a Terry stop was justified the court inquires whether, given the facts available to the officer at the time, a person of reasonable caution would believe the action taken to be appropriate. (People v. Corrigan (1977), 45 Ill. App. 3d 502, 359 N.E.2d 1107.) A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921.
In the case at bar, two police officers, who had been on a routine patrol, were called to investigate a street disturbance at 1:15 a.m. on July 22, 1983. The officers were not given any description of the individuals involved in the disturbance. The officers observed an alley on the block where the disturbance was reported and further observed defendant exit the alley, turn back into the alley and once again exit the alley. Having observed this activity by defendant, the officers exited their car, stopped defendant, identified themselves and asked defendant for identification documents and his purpose for being in the alley. Under these circumstances, we find no violation of the Terry standards. Having been instructed to investigate a street disturbance in a high crime area in the early morning hours, and having observed defendant's unusual meandering behavior, in our opinion, an investigatory stop of defendant by the police officers was warranted. In judging whether the police officers had reason to act, we bear in mind that police officers must often proceed upon a quick appraisal of the information before them and are also aware that trained police officers may be able to perceive and articulate meaning in conduct which would be wholly innocent to the untrained observer. See People v. Herron (1980), 89 Ill. App. 3d 1048, 412 N.E.2d 1365.
Defendant further argues that he was improperly seized under fourth amendment principles when the police officers took him to the police station for a "name check" and to be photographed. The State maintains no seizure of defendant occurred since he consented both to ...