Opinion
No. 54149 Judgment affirmed.
November 5, 1971.
APPEAL from the Circuit Court of Cook County; the Hon. PHILIP ROMITI, Judge, presiding.
Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
Edward V. Hanrahan, State's Attorney, of Chicago, (Robert A. Novelle and Zenon Forowycz, Assistant State's Attorneys, of counsel,) for the People.
OFFENSE CHARGED
Rape. Ill. Rev. Stat. 1967, ch. 38, par. 11-1.
JUDGMENT
After a trial by jury, both defendants were found guilty; Carter, who was 19 years old, was given a sentence of four to seven years, and Price, who was 16 years old, was committed to the Illinois Youth Commission for a term not to exceed the maximum term for the offense of rape.
CONTENTIONS RAISED ON APPEAL
The defendants were not proven guilty beyond a reasonable doubt. In support of this point, defendants make the following contentions:
(a) The trial court improperly denied defendants' motion to suppress the in-court identifications which were tainted because (1) defendants had not been assigned an attorney at the time of a hospital identification (there was no line-up), and (2) there was no determination that the identifications had an independent source.
(b) The testimony of the victim was not sufficiently clear and convincing, nor was it adequately corroborated.
(c) The alibi tendered by defendants should not be disregarded where the identification of defendants is unsatisfactory.
EVIDENCE
Equilla Jackson, for the State:
At the time of the trial, she was single, 20 years old, lived with her mother, and had one child two years old. At approximately 10:30 P.M. on July 16, 1968, she and her boyfriend, Willie Evans, went to Douglas Park. They were sitting on a blanket listening to a portable radio when a boy came up and asked if they had seen anyone pass with a dog. He came back ten minutes later and asked the same question. He was standing six or seven feet away for three or four minutes when he asked the question, was wearing bright gym shoes, dark pants and a dark shirt. At the trial, she identified defendant Carter as this boy. The boy left and returned a third time, this time accompanied by another boy and a dog. Evans told them to move the dog and they replied that the dog would not bite. After 15 or 20 minutes, the boys left. She identified the second boy as defendant Price, whom she had seen two or three times a week for four weeks around the Harrison High School prior to that night.
She and Evans remained sitting, and 15 minutes later the boys and dog returned. The boys "put the dog on them," saying "sic em." As they tried to get up and leave, Price told them to sit where they were. They sat down. Evans then broke loose and started running, being chased by Carter and the dog. She was going to run, but tripped over the radio. When she tried to get up, Price pushed her down, held her hands, and pulled her panties down as she struggled. He then had intercourse with her. Carter then returned and performed the same act while Price held the dog. When she had started hollering, Carter pulled out an eight-inch knife and threatened her. He punched her before leaving.
After they left, she folded the blanket, fixed her clothing, and took her radio. She was nervous and heard Evans calling for her. Evans came back with police about 25 minutes after leaving, and she gave them a description of the boys. She then got in the car with the police and drove around looking for the boys before they took her to Mt. Sinai Hospital where she was examined by a woman doctor for about one hour. She had bruises on her face where Carter punched her. She identified her panties (later introduced in evidence) upon which were two rips which had not been there when she had left home on the night in question.
While she was in the hospital she saw defendants in her room. The police asked her to identify the boys as her attackers, and she did.
Willie Evans, for the State:
He corroborated the testimony of Miss Jackson concerning their meetings with defendants in the park. He identified both of them in court. In addition, he said that the dog was large, either a German Shepherd, Boxer, or mix. About 40 or 50 feet from where they were sitting was a building with a light on it. They could also see the street lights on Ogden Avenue. He was able to see the faces of the defendants. When they returned with the dog a second time, he stood up, and one of the boys said, "You are not going any place." The witness said, "Come on, Equilla, let's leave." Carter then came up behind him with the dog and he began to run, being chased to Ogden and Marshall Boulevard by Carter and the dog. He flagged down some people in a car, but they would not help him. He then flagged down some plainclothes policemen. He told them what was happening, and ran back into the park with the police. They found Miss Jackson, who was fixing her clothes. He rode through the area with the police and Miss Jackson, and they gave a description of the boys to the police. The boys were teen-agers, and he noticed the way they were dressed, and their faces. One of them had a process hair-do.
Officer Raspberry, for the State:
On July 16, 1968, he was on duty with his partner, Dennis Fencl. They were in plain clothes in a car when he saw Willie Evans in the middle of the street at Marshall Blvd. and Ogden Avenue. After having a conversation with him, they followed him into the park where they saw Equilla Jackson. She was walking toward Marshall Blvd. from the park, pulling her pants up. Her hair was in disarray. She said she had just been raped, and was in a great emotional state. She was disturbed and could not talk at the time. They all went through the park looking for the offenders before taking Miss Jackson to the hospital.
After getting a description of the offenders, he and his partner went back to the park area where they saw two suspects who fit the description given by Miss Jackson. They were standing in front of a house and had a brown dog with them that looked like a Boxer. They placed the two men, identified as defendants, under arrest at that time. Carter was wearing a black sweatshirt, dark pants, and white gym shoes. Price was wearing dark pants and white shirt, and had long processed hair, as Miss Jackson had described. The dog ran away. At the police station, he took the under shorts from both defendants and placed them in a bag. He identified them as exhibits later introduced in evidence.
He took defendants to the hospital and asked Miss Jackson if these were the men who had raped her. Their hands were handcuffed behind their bodies. She replied that they were the ones who had done it.
He remembered that Miss Jackson told him they had threatened to beat her if she did not submit, and that she had been threatened with a knife, but he did not mention a knife in his police report. No weapons were found on defendants.
Officer Fencl, for the State:
His testimony was essentially the same as that of Raspberry. Additionally, he stated that when they were in the park at about 11:30 P.M. the lighting conditions were good at the place where the incident was said to have taken place.
Joseph Price, for the State:
He is a microanalyst in the Crime Laboratory who examined the exhibits brought to him by the police. He observed a hole in Miss Jackson's panties, and found a stiffness of the cloth at the crotch, which, when extracted and sampled, was determined to be dried mucous containing spermatazoa. He also examined the shorts of both defendants, and found stiffness and mucous stain in the crotch area, but no spermatazoa. Such stains are commonly found on a person's undergarments after an ejaculation, but could have been caused by something else, and their age was impossible to determine. Vaginal smears from the hospital also disclosed the presence of sperm.
Kattie B. Johnson, for the defense:
She is a housewife and for eight years has been the pastor of the Church of God and Christ, which is in the basement of the building she lives in. Defendant Carter is a member of her church, and he was in church between 7:30 and 10:00 P.M. on the night when he was arrested. After church, Carter went upstairs with her, her son, husband, and daughter, Margie Johnson, and they remained there until 10:30. She does not know where Carter went when he left.
She also knows Price, who has been in church with Carter. Carter has a brown Boxer dog.
Margie Johnson, for the defense:
She saw Carter in church the night he was arrested. They left church at 10:00 and went upstairs until 10:30. She did not know where Carter went when he left. Carter has a dog.
Wilma Carter, for the defense:
Defendant Carter is her son and she knows Billy Price, but did not see Price on the day Carter was arrested. She and her son left to go to different churches around 6:30 or 7:00 on the evening her son was arrested. She saw him about 10:30 when he took her home. He did not stay long because she told him that Price wanted the dog picked up. Defendants brought the dog, a brown Boxer, home about 10:45. Carter came inside, but Price left. Her son stayed a couple of minutes and then left. She did not know where he went. The dog stayed home all night. She next heard from her son when he called from the police station.
Earnest Carter, in his own behalf:
He was arrested on July 16, 1968. He saw his mother that day when he came home from work about 5:30 P.M. He went to church about 6:30 and the services lasted until 10:00. He went upstairs with his girl friend and her mother and stayed until 10:30. He then left, picked up his mother when she came out of church, and took her home. He stayed home about five minutes and went to look for his dog, a Boxer. There are five or six other Boxers in the neighborhood. He found his dog with Price at the corner of 19th and Kedzie, about a block or block and a half from Douglas Park. He has seen many people walk their dogs in Douglas Park. He brought the dog home in his car. He then drove to a poolroom on 22nd and Troy, arriving there about 10:45 P.M. There were other people in the poolroom and he left about 12:30. Price was with him in the pool hall, where they shot a couple of games. Five minutes after leaving the pool hall, he and Price were arrested near the corner of 21st and Albany. His dog was home at that time. He does not know either Equilla Jackson or Willie Evans. He did not rape Equilla Jackson.
The night he was arrested, he was wearing blue jeans, a black sweater, and white gym shoes. He goes to the pool hall every night and was there often in July. The owner, Willie Dixon, was there the night he was arrested, but he did not know if Dixon knew he was there.
Billy Price, in his own behalf:
On the night of July 16, 1968, he went to Carter's house and got Carter's dog, a Boxer, from the back porch. Carter was not at home. He walked the dog in the park, as he had done many times before. He had seen many other people walking Boxers in the park. He saw three men with a large dog sitting in the park and he talked with them for 15 or 20 minutes. They all left together and he went in another direction out of the park. On his way out, he ran into Carter and they took the dog to Carter's house where Carter went upstairs, while he remained outside. Carter returned and they went to the poolroom where he saw many people. Carter played pool with a Puerto Rican fellow. After being in the poolroom for an hour or an hour and a half, they left and saw many police cars in the area. Since Carter had no license plates on his car, he parked it. They sat down and about five minutes later the police came around 21st Street to Albany and picked them up. Carter's dog was home at that time. He does not know Miss Jackson, did not talk to her in the park, and did not rape her.
On the night in question, he was wearing a white shirt, a scarf, and had processed hair.
George Brobst, for the defense:
He is an investigator for the Public Defender of Cook County. He was called to identify four photographs taken by himself of a brick tool shed in Douglas Park near Ogden and Sacramento, which were admitted into evidence. (There were no lights on the building in the photographs.)
Ernest Wortham, for the defense:
He is a florist who has been taking care of the Douglas Park Gardens for eight years. He was shown the photographs taken by Brobst and testified that there were no lights on the tool shed or on a pagoda as shown in the photographs.
Frank Draus, for the State:
He is a State's Attorney's photographer. He was called to identify three photographs he took of a building in Douglas Park which is used as a washroom facility, and which is west of California Avenue near a baseball diamond. The building has lights on the structure on both its north and south sides. (They can be seen in two of the photographs.) The three photographs were admitted into evidence.
OPINION
Defendants' first contention is that their motion to suppress the in-court identification was erroneously denied. The correctness of this ruling must be examined in light of the testimony adduced at a pre-trial hearing on defendants' motion to suppress. Only three witnesses testified at that hearing, and their testimony which related to the identification issue follows: Officer Raspberry:
His preliminary testimony was the same as at the trial. After following Willie Evans into the park, he saw Equilla Jackson, who stated that she had just been raped by two Negro boys who scared her boyfriend off with a Boxer dog. After cruising the park for a while, they took her to the hospital. On the way, she described one of the assailants as a male Negro, about 18 years old, stockily built, with white gym shoes, blue levi pants, and a dark sweatshirt. The other boy was about six feet tall, slender, wearing a white shirt, dark pants, and long processed hair. He wrote these descriptions down. Returning to the park, they saw defendants, who fit Miss Jackson's descriptions. He identified them in court as the boys he arrested. They took defendants to the hospital. When they were walking to the emergency room, unaware of Evans' presence, Evans jumped up, pointed his finger, and said, "These are the two, officer, these are the two." They then brought defendants into Miss Jackson's room without forewarning her, and told her that these were the suspects they had picked up from her description. She looked up immediately and said, "Yes, sir, these are the two who did it."
Equilla Jackson:
The first time the boy came looking for another boy with a dog, he was standing ten feet from her for about five minutes. There were electric lights around the area, one being on a building 25 to 30 feet away, and she could see the boy's face. She described him [Carter] as a Negro, heavy set, almost 180 or 190 pounds, sort of short, wearing white gym shoes, dark trousers, and a dark shirt. When he returned in ten or fifteen minutes, she saw his face a second time. When he returned with his friend and a dog, she saw both boys' faces as they stood in front of her for about 15 minutes. The second boy [Price] weighed about 130 or 140 pounds, wore dark shoes, dark trousers, and a white shirt. She had previously seen him around school daily for a couple of weeks, but did not know his name at that time.
As Price raped her, he was on her for five or ten minutes, and his face was very close to hers. When Carter returned, he jumped on her and was on her for about five minutes.
She gave the officers a description of the boys and told them that they had a dog. It was only about ten minutes after she had seen them in the park that she saw them at the hospital. The police told her they had someone outside that could have been the boys; that they had picked up two suspects based on her descriptions. They then brought defendants into the room.
Willie Evans:
About 11:00 on the night in question, a man, identified as Carter, came up to Miss Jackson and him and asked about a dog. Carter left, returned once again, and returned a third time with Price and a dog. Price and Carter left with the dog after being asked to go away, but they came back a fourth time.
There was enough light to see what was going on. There was a light which they could see on a building about 25 feet from where they were in the park. That night he identified defendants who were in the squad car in Officer Raspberry's presence.
At the conclusion of the hearing on the motion to suppress the hospital and in-court identifications, the court held that the hospital identification should be excluded, saying for the record:
"Viewing the testimony in its totality, however, I feel that there is, from that evidence, every indication that these witnesses do and could have the basis for an independent recollection and independent identification, and, therefore, that portion of the motion which relates to in-court identification is denied."
• 1 The State admitted that the identification at the hospital was tainted. We make no ruling as to the admissibility of the hospital identification. The only question remaining as to this point, then, is whether the record supports the finding of the trial court that the in-court identifications had an adequate, prior, independent source. ( Gilbert v. California, 388 U.S. 263, 272; United States v. Wade, 388 U.S. 218, 242.) In People v. McMath, 104 Ill. App.2d 302, 313, affirmed 45 Ill.2d 33, cert. den. 400 U.S. 846, we stated the test for the admission of the in-court identification in this type of situation:
"If, however, the testimony does establish an unfair pretrial identification confrontation, the subsequent in-court identification may nevertheless be admissible if the State shows, by clear and convincing evidence, that such in-court identification had an independent origin, arising from other uninfluenced observation of the defendant." [Citation.]
See also: People v. Cook, 113 Ill. App.2d 231, 236-37.
• 2 With regard to their ability to observe defendants in the park, both Miss Jackson and Willie Evans testified that they saw Carter four times and Price twice on the night of the incident. They both said that there were lights in area and Miss Jackson said she could see her assailants' faces. She had also recognized Price as someone she had seen before. The photographs in evidence appear to have no probative value on the question of lighting. One set of photographs depicts a building without lights, and the other set shows a building with lights. The record does not disclose which one was nearest the scene of the alleged crime. Officer Raspberry testified that shortly after the incident and prior to defendants' arrest, Miss Jackson had given him a description of defendants, which we find was reasonably specific, and was corroborated by their appearance when arrested. We conclude, therefore, that the trial court was correct in its finding that the identification witnesses had the opportunity to, and did, observe defendants in the park on the night in question, and that their subsequent in-court identifications had an adequate independent origin, uninfluenced by the hospital show-up.
• 3, 4 Defendants next contend that the testimony of Miss Jackson was not sufficiently clear and convincing to support defendants' conviction. We have examined the report of her testimony, and, while it does contain minor inconsistencies, we are satisfied that they are not of sufficient importance to render her testimony inherently improbable. Also, in view of all of the evidence, the fact that the police report made no mention of a knife (which Miss Jackson testified that Carter had threatened her with), and the fact that no weapons were found on defendants at the time of their arrest some time later, are not sufficiently material to raise a reasonable doubt as to defendants' guilt.
This is not a case in which the testimony of the victim stood alone and uncorroborated. Her testimony was very substantially corroborated by that of Willie Evans who recounted defendants' harassment of both himself and Miss Jackson before he ran for help, and by the police officers who observed Miss Jackson soon thereafter in a highly emotional state, with her clothes and hair in disarray and her face swollen. Miss Jackson's testimony was also supported by the physical evidence of her ripped panties, and the findings of the micro-analyst as to her panties and defendants' shorts.
• 5 Defendants argue further that the lack of a report or testimony from the physician who examined Miss Jackson at the hospital is a serious defect in the State's corroborating evidence. They call our attention to two cases in which convictions for rape were reversed where the court noted the absence of evidence of a medical report, although the prosecutrix had been examined after the alleged rape. ( People v. Faulisi, 25 Ill.2d 457, 462; People v. DeFrates, 33 Ill.2d 190, 195-96.) In both of these cases, however, the act of intercourse was admitted, and the question was whether it was performed forcibly or with the consent of the prosecutrix. In each case, the court found that the testimony of the prosecutrix as to the use of force was essentially uncorroborated and improbable, thus giving more than ordinary significance to the lack of the medical report which could have disclosed bruises or other evidence of force. In any event, in the instant case, the presence of sperm in vaginal smears, was testified to by the person who performed that test. We find no proof defect of substance in this regard.
• 6-8 Defendants' final argument is that their alibi should not be disregarded where the identification evidence is vague and unsatisfactory. The identification testimony, however, was not unsatisfactory or vague. Its sufficiency was rather clearly demonstrated by the fact that the police, on the basis of Miss Jackson's description, were able to apprehend defendants shortly after the offense. The cases cited by defendants in support of this argument are therefore inapplicable. (See: People v. Gooden, 403 Ill. 455, 461; People v. Gardner, 35 Ill.2d 564, 571.) In addition, the witnesses called by defendants to support their own alibi testimony did not clearly account for defendants' whereabouts at the precise time of the offense. Under these circumstances, the weight to be given alibi and identification testimony is for the jury to determine, and its decision will not be reversed unless the proof is so unsatisfactory as to raise reasonable doubt of guilt. ( People v. Hoffman, 45 Ill.2d 221; People v. Hampton, 44 Ill.2d 41.) The jury's guilty verdict in this case was based upon evidence which, if believed, established the defendants' guilt beyond a reasonable doubt.
The judgment is affirmed.
Judgment affirmed.
DRUCKER and LORENZ, JJ., concur.