People v. Mays

• Decision Date: 01 April 1971
• Docket Number: No. 42598,42598
• Citation: 48 Ill.2d 164,269 N.E.2d 281
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Stanley MAYS, Appellant.
• Court: Illinois Supreme Court

Page 281

269 N.E.2d 281

48 Ill.2d 164

The PEOPLE of the State of Illinois, Appellee, v. Stanley MAYS, Appellant.

No. 42598.

Supreme Court of Illinois.

April 1, 1971.

Kenneth L. Gillis of Gillis, Gildea & Rimland, Chicago, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Robert A. Novelle and Richard Pezzopane, Senior Law Student, Asst. State's Attys., of counsel), for the People.

DAVIS, Justice.

The defendant, Stanley Mays, who was charged with the crimes of rape, deviate sexual assault, and armed robbery, in the circuit court of Cook County, waived his right to a trial by jury, was found guilty of all three charges by the court after a bench trial, and was sentenced to the penitentiary for a minimum of 10 and a maximum of 30 years.

He contends that he should have been afforded an attorney at the identification lineup; that he was prejudiced by the admission of evidence of other wrongdoing by him; and that the evidence did not sustain the finding of his guilt beyond a reasonable doubt.

In resolving the contention that the defendant should have been afforded counsel at the lineup, we have examined and considered the record. It discloses that the victim of the charges had opportunities to observe the face of the man who attacked her for a total of 10 to 15 minutes on at least four occasions during a period of the attack which lasted about one-and-one-half hours. She described the attacker's build, texture and complexion, and noted particularly his large eyes and upper lip, which curled slightly over the lower one. Three days after the attack, she identified the defendant's photograph out of approximately 200, which were given her for examination. Later the same day, she identified the defendant in a lineup of five persons of approximately the same age, height and description and at the trial she made a positive in-court identification.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the court held that a pretrial confrontation for identification purposes is a critical stage of a prosecution at which an accused is entitled to the presence of counsel, and that the conduct of such a confrontation by the police without notice to and in the absence of counsel denies an individual his sixth amendment right to the assistance of counsel made binding on the States by the fourteenth amendment. People v. Nelson, 40 Ill.2d 146, 150, 238 N.E.2d 378.

The record in this case clearly shows that the identifying witness had adequate opportunities, under favorable circumstances, to observe the defendant at the time of the rape, and that the defendant had distinguishing characteristics with reference to his upper lip and eyes. (See: People v. Bey, 42 Ill.2d 139, 142--144, 246 N.E.2d 287; People v. Speck, 41 Ill.2d 177, 193, 242 N.E.2d 208.) Consequently, we find that the in-court identification of the defendant by the victim of the rape was based on her observation of him at the time of the offense and was not founded on her view of him in the lineup. Prior to the lineup, she had already identified his photograph out of approximately 200 which were given her for examination.

We acknowledge that the circumstances surrounding a confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process. (Stovall v. Denno, 388 U.S. 293, 301, 302, 87 Ct. 1967, 18 L.Ed.2d 1199, 1206; People v. Nelson, 40 Ill.2d 146, 150, 238 N.E.2d 378.) However, the evidence clearly shows that the defendant's in-court identification was independent of and uninfluenced by any viewing at the lineup, and the introduction of evidence pertaining to the lineup constituted harmless error. People v. Lucas, Ill., 269 N.E.2d 285.

During the course of the cross-examination of the defendant's mother, the prosecution elicited testimony from her that the defendant had lived with her in March and April of 1968. When the prosecutor pursued examination relative to this statement, she testified that he lived with her during this period, except for 40 days while he was in jail. The prosecutor asserts that he was laying the grounds for her impeachment had she not testified that the defendant did not live with her continually during this time. Such assertion is without merit in that the further questioning did not indicate that the witness had made a prior inconsistent statement and did not direct her attention to the time, place, parties involved, when such statement was made and the substance thereof. (People v. Lenhart, 340 Ill. 538, 547, 173 N.E. 155.) However, we cannot agree that this evidentiary error was so prejudicial as to require reversal.

There was no objection to this testimony at the trial; and, generally, unless evidence is so prejudicial as to clearly deny the defendant a fair trial, the failure to object constitutes a waiver of error in its admission. (People v. Lee, 44 Ill.2d 161, 171, 254 N.E.2d 469; People v. Trefonas, 9 Ill.2d 92, 98, 136 N.E.2d 817.) Also, absent the circumstance of evidence being received by the court which is so prejudicial as to clearly deny the defendant a fair trial, an error in the admission of evidence in a trial before the court, rather than before a jury, does not constitute reversible error. The trial judge is presumed to have considered only the competent and relevant evidence. People v. Palmer, 26 Ill.2d 464, 471, 187 N.E.2d 236; People v. Popescue, 345 Ill. 142, 155, 156, 177 N.E. 739.

The defendant further contends that the finding of guilt by the trial court was unreasonable when the testimony of the complaining witness is compared with that of the nine alibi witnesses; that the testimony of the complaining witness is not believable; and that her identification is not reliable.

The complaining witness testified that she was returning home from work at approximately 12:50 A.M., on May 18, 1968; that her assailant approached her, put a gun to her head and told her that he would 'blow her brains out' if she opened her mouth; that she looked him in the face; and that, while being led down a lighted alley, she again looked him in the face. She further stated that he then led her to a stair landing and took out a knife, which he held in one hand; that he held the gun which he earlier exhibited in the other hand...