People v. Thomas

389 N.E.2d 1330, 72 Ill. App. 3d 186, 27 Ill. Dec. 922, 1979 Ill. App. LEXIS 2608
Appellate Court of Illinois·Decided April 30, 1979·No. 78-226·Published·Cited by 20 cases

Opinion

* Mr. JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant, Robert Thomas, was charged by information with rape, deviate sexual assault, and armed robbery. After a jury trial, he was convicted on aU three charges. The circuit court of Cook County subsequently sentenced defendant to serve concurrent terms of 20 to 40 years in the Illinois Department of Corrections for each conviction.

Defendant appeals from his conviction contending: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred by restricting defendant from showing that a police officer made a prior inconsistent statement at the preliminary hearing; (3) the court erred in allowing certain hearsay testimony; (4) the court erred by refusing to delete the word “sex” from the cover of a “mugbook” which contained defendant’s picture; and, (5) the trial court erred in refusing to allow testimony of an officer’s usual police procedure in displaying “mugbooks” to crime victims.

Pertinent facts as developed in the lower court follow:

Defendant made a pretrial motion to suppress the identification testimony of complainant. Defendant theorized that there were numerous discrepancies and uncertainties in her identification testimony and that identification procedures implemented by the Chicago Police Department were unduly suggestive. The trial court denied the motion to suppress finding a lack of suggestivity in the procedures implemented and a consistent pattern of identification by complainant.

We need not recite the testimony elicited at this hearing, since, on appeal, defendant does not contest the propriety of the court’s ruling on the motion, but rather contends that the trial record establishes a reasonable doubt of identification.

At trial, complainant testified that at approximately 4 p.m. on December 28,1976, she left work, arriving home sometime after 4:15 p.m. She entered the courtyard of her apartment building, proceeded to her mailbox in the vestibule and was then confronted by a man she identified in court as the defendant. Defendant told her not to scream and that he had a knife. The victim testified that he held a folding knife with a black handle. She identified a State’s exhibit as a knife that is or is like the one her attacker used. Complainant asked the defendant if he wanted money and he replied affirmatively. Initially, she could not find any money in her purse. At that point the defendant told her: “Let’s walk out; I don’t want anybody to see me here.”

Defendant then forced his victim at knifepoint to accompany him through a gangway to the rear of the building. Complainant testified that lighting conditions were good from the vestibule to the courtyard of the building which leads to a gangway to the rear of the building. The source of the lighting was street lights.

Complainant further testified that at the rear of the building, they arrived at a “shack-like” garage with two missing walls. Upon entering the garage, her assailant told complainant to put her purse down and remove her coat. She put her purse down, gave him approximately nine dollars, but refused to take her coat off because it was too cold. At this point, defendant exposed his penis. When a dog barked he put his penis back in his pants and ordered his victim to accompany him.

Assailant and victim proceeded down an alley to the street and then re-entered the alley. While they were walking near the street, defendant ordered complainant to put her arm around him so that any people passing would think they were together by choice. During the entire time they were walking, defendant kept his knife next to complainant’s side. They reached another gangway which led to a basement, located under the porch of the building.

We believe that it is necessary to recount in detail the gruesome nature of the attack on complainant because identification of defendant is at issue upon appeal. The following testimony by the complainant evidences her opportunity to view her assailant in close proximity for a long duration.

Upon reaching the bottom of the stairs, assailant ordered complainant to her knees and forced her to perform fellatio. He then forced her to lie down, remove her panties, and have intercourse with him. Immediately thereafter, she was directed to “clean up” his penis and forced to perform another act of oral copulation. Finally, assailant once more forced his penis in complainant’s mouth and this time urinated. Complainant testified that the entire ordeal took about one hour.

When defendant left, complainant dressed, retrieved her purse, and called the police. The police arrived shortly and transported her to Saint Anne’s Hospital where she was treated.

Complainant further testified that while she was at the hospital she was interviewed by the police officers. She described her attacker as five feet five or six inches tall, weighing between 140 and 160 pounds. He had a stocky build, medium dark complexion, and was unshaven. She also testified that her attacker was wearing a knit wool skull cap.

On December 28, 1976, two days after she was attacked, complainant went to Area 4 Homicide/Sex police headquarters to view pictures of possible suspects. Complainant testified that she viewed six to eight books captioned “sex” or “robbery” and selected three photos of men who resembled the rapist. She did not see any photographs of defendant in the photobooks viewed.

Complainant further testified that on January 8, 1977, Officer Dulay and his partner arrived at her home and showed her five photographs. She recognized one of the five as her assailant. That photograph was of defendant. At about 7 p.m. on the same day at police headquarters, the victim witnessed a lineup comprised of five individuals. During the lineup, she requested that the men say “shut up bitch,” a phrase used by her attacker. Complainant then positively identified defendant as her attacker.

On cross-examination, complainant testified that the mugbooks she viewed on December 30,1976, were similar to defendant’s exhibit one, an Illinois Department of Corrections photograph book of sex offenders who were recent parolees (penitentiary releasee book). Additionally, she stated that of the five pictures displayed by Officer Dulay, only defendant’s picture was stocky. She maintained that she was positive defendant was her assailant before he spoke at the lineup.

On redirect examination, complainant explained that she knew she had not viewed defendant’s exhibit one on December 30, 1976, because none of the books she saw contained defendant’s picture. She also testified that, as she was leaving the lineup on January 8, 1977, she was shown a knife. In her opinion, it was the same knife she identified in court. Finally, when again asked to explain the difference between defendant’s exhibit one and the photo books she viewed, complainant testified that the images in the defendant’s exhibit were larger.

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People v. Thomas, 389 N.E.2d 1330, 72 Ill. App. 3d 186, 27 Ill. Dec. 922, 1979 Ill. App. LEXIS 2608 (Ill. Ct. App. 1979).

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