APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
530 N.E.2d 1143, 176 Ill. App. 3d 169, 125 Ill. Dec. 734 1988.IL.1628
Appeal from the Circuit Court of Cook County; the Hon. J. P. Banks, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
Between 9:45 and 10:15 a.m., on June 28, 1984, a 59-year old woman was raped in her home in Cicero, Illinois. The victim testified that she showered after mowing the lawn, donned a robe, and was suddenly knocked to the floor with an afghan thrown over her head. As she was pushed onto her bed, the victim pulled up the afghan slightly and saw defendant. He had a "big head of hair" and a beard, and a nylon stocking over his head. He raped her and then put her in the bathroom, instructing her to lock the door from the inside. The victim yelled out the window to a neighbor, Rose Parma, that she had been raped. Parma telephoned the police. The victim later found $90 missing from her purse. The victim was unable to identify defendant at trial.
Georgette Ruf, a neighbor, testified that at about 9:40 a.m. she saw a grey car pull up outside, about 40 feet from her window. Ruf saw defendant exit the car, open the trunk, return to the car, sit and wait, then again exit the car. Ruf testified that she "got a good look at" him. As he walked by her window, he held a knee high stocking in each hand. Ruf thought he behaved suspiciously, and she wrote down the license plate number on his car. She went out to her porch to verify the number, and then placed the slip of paper in a book. Ruf later saw defendant "galloping" towards his car, and then driving away. Ruf described him as having light skin, bushy hair and a beard. He wore a beige knit shirt with matching pants. She could not identify his race. Ruf identified defendant in both photographic and physical lineups and in court. She testified that she paid no attention to the differences in size or color, or to the quality of the photographs in the array.
Pamela Cuneen, a neighbor, had just driven up to her home at 9:45 a.m. when she saw defendant walk by her car. He had "big shoulders, lots of hair, a beard and a compact body." She waited in the car until he passed because he "looked a little frightening." He walked right past her car and she saw his profile. He was "a portrait in tan and beige and brown because his clothes were brown and his arms were brown." She had not thought he was black because, in late June, "everybody had suntans and he was kind of brown-skinned." Cuneen identified defendant in photographic and physical lineups. At trial, she testified that she "saw enough so that [she] could identify him in the pictures." At trial she identified him again.
Rose Parma testified that she and her husband were watering the front lawn when she heard the victim's front door slam. Parma turned to look because the victim generally used her back door. Parma saw defendant running from the house. He "stopped dead" and stared at Parma. She "got a very good look at him" with an unobstructed view and observed him for several seconds. Parma described defendant as a man with long bushy hair, which was messy but full. He wore a tan shirt, tan pants, and brown shoes. "He had darker skin, I thought he was Arabian." At trial she testified: "Well, to me he still looks Arabian." Parma identified defendant in photographic and physical lineups and at trial. She testified that she was quite certain of defendant's identification.
At the suppression hearing, defendant argued that the six photographs in the array included five white men and that defendant's picture was the only one of a black man. Moreover, defendant's picture was the only one with black edges, was slightly larger than the others, and was of a better quality. The State countered that defendant's photographs were put with white men because he had very light skin and to place them with photos of other black men would have been too suggestive. Moreover, none of the witnesses had described him as black. Once the police learned defendant was black, they placed him in a lineup with other black men.
The trial court found that the photographic display had not been impermissibly suggestive and denied defendant's motion to suppress the photographic and subsequent eyewitness identification evidence.
Officer Bill Cavaness testified for the State that in normal traffic conditions it takes approximately six minutes to drive from Pope's barbershop to the victim's home.
Defendant offered several witnesses who testified as alibi witnesses. Sandra Robles, defendant's girlfriend, testified that she spent the night of June 27 with defendant. Between 8:15 a.m. and 8:30 a.m., defendant left for Pope's barbershop, where he worked.
David Pope, the barbershop's owner, testified that between 10 and 10:15 a.m. he left defendant at the barbershop. He kept no records ...