{ "id": 1580161, "name": "People of the State of Illinois, Appellee, v. Henry Odom, Defendant-Appellant", "name_abbreviation": "People v. Odom", "decision_date": "1970-04-28", "docket_number": "Gen. No. 68-54", "first_page": "373", "last_page": "384", "citations": [ { "type": "official", "cite": "123 Ill. App. 2d 373" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "251 NE2d 75", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill App2d 251", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1591030 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0251-01" ] }, { "cite": "213 NE2d 588", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill App2d 46", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5291427 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0046-01" ] }, { "cite": "240 NE2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857959 ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0388-01" ] }, { "cite": "238 NE2d 378", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill2d 146", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857198 ], "pin_cites": [ { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0146-01" ] }, { "cite": "250 NE2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848428 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0508-01" ] }, { "cite": "394 US 440", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173399 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/394/0440-01" ] }, { "cite": "390 US 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "388 US 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] }, { "cite": "388 US 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "388 US 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] } ], "analysis": { "cardinality": 823, "char_count": 18557, "ocr_confidence": 0.619, "pagerank": { "raw": 7.943004060014475e-08, "percentile": 0.46225880350553256 }, "sha256": "1510dfd828f74122ecf6c2df1eef40ec9301fb6f20885fc624cd28df51925aba", "simhash": "1:98943a894c1aa40c", "word_count": 3370 }, "last_updated": "2023-07-14T19:26:20.368977+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Appellee, v. Henry Odom, Defendant-Appellant." ], "opinions": [ { "text": "MORAN, P. J.\nDefendant, Henry Odom, was convicted in a trial by jury of rape and burglary and sentenced to the penitentiary for a term of twenty-five to fifty years.\nDefendant urges, among other things, that the lineup procedure by which he was identified was so conducive to irreparable misidentification as to deny him due process of law and that the uncorroborated testimony of the complaining witness is not of the affirmative character required by law and is insufficient to support the conviction in light of defendant\u2019s alibi testimony.\nThe complaining witness, Mrs. Marcia Buff, 25, testified at trial that on May 21, 1967, she was living at 782 Lindberg Drive, East St. Louis, Illinois, in a rented, two-bedroom house with her two children, ages 9 and 4. Her husband was in Viet Nam at that time. No one else had access to the house. She went to bed around 2:30 a. m., Sunday, May 21, 1967. Her front and back doors were locked, as well as the screen door on the back porch and a chair was pushed against the back door as an additional precaution because the house had been broken into a month earlier.\nWhile she was asleep in her bedroom at the front of the house, someone said, \u201cWake up.\u201d A man was standing over her with a knife at her throat. She saw by a luminous clock that it was five o\u2019clock. The knife had a long thick blade like a butcher knife used in a grocery store, but she could not recall in which hand he held it. She testified, \u201cIt was just dusk,\u201d and there was a small night-light in the bathroom and a streetlight outside the window. She stated further, \u201cIt wasn\u2019t bright light, but it was just beginning to get light in the wee hours of the morning.\u201d In response to the question, \u201cCould you see in your room?\u201d she stated, \u201cYes, I could.\u201d She saw a man who asked her twice for money, but she had only some small change. She described him at trial as \u201cwearing an overcoat and wash pants and a sport shirt. . . . He wore dark glasses and he had a light beard. Not a beard, but a growth. He needed a shave.\u201d He also had a moustache.\nAs to subsequent events, she testified as follows;\nAfter I told him I didn\u2019t have any money, he said, \u201cGet up,\u201d so I got up with the knife at my side and he took me into the living room and put my face against the wall and he started kissing me on the shoulder, and he said, \u201cWhere is your money?\u201d and I said I didn\u2019t have any. He said, \u201cWThy do you live alone?\u201d and I said, \u201cI don\u2019t, my husband works nights,\u201d and he said, \u201cWhat time will he be home?\u201d I could see it was almost five, so I said, \u201cHe comes home around six,\u201d and he said, \u201cWhat time is it?\u201d and I looked at the clock and that is when I saw it was after five o\u2019clock. He started kissing me on the shoulder again and said, \u201cI want your money,\u201d and I said, \u201cI don\u2019t have any.\u201d I said, \u201cMy house was broken into a month ago and my husband takes all the money to the bank on Friday night.\u201d He then said he wanted to have sexual intercourse. I begged him. I said, \u201cNo, please, don\u2019t.\u201d I said, \u201cJust go and leave me alone,\u201d and he said, \u201cI want sexual intercourse,\u201d and I said, \u201cNo, please,\u201d and at this time my little girl came into the living room.\nHer four-year-old daughter, who had been sleeping in the bed with her mother, came into the room.\nShe looked up at him and she said, \u201cMommy,\u201d and he said, \u201cGet that damned kid out of here or I will kill her,\u201d so I calmed myself down and told her to go back into the bedroom and she did, and then he said, \u201cCome out onto the porch\u201d and so he pushed me ahead of him and we got almost to the kitchen door where the kitchen is, and he said, \u201cNo, it is too light, you will see me too plain,\u201d so he turned me around and went into my other bedroom, the small bedroom and made me lie down on the bed and then he said, he started kissing me on my stomach, and he said, \u201cPut it in,\u201d and I said, \u201cNo, I can\u2019t, just go and leave me alone,\u201d and he said\u2014I says, \u201cMy husband is going to come home,\u201d and he said, \u201cIf he comes home before I am finished, I will kill him. I have a gun.\u201d I don\u2019t know if he had a gun or not. And then he forced himself on me and then he got up and I kept begging him to leave, and he says, \u201cYou will scream,\u201d and I said, \u201cNo. I won\u2019t. Just go and leave me alone.\u201d I said, \u201cMy husband is going to come home.\u201d He says, \u201cYou will scream,\u201d and I said, \u201cNo, I won\u2019t. Just go please.\u201d\nShe testified further that penetration was accomplished, that she did not consent and that she did not resist out of fear for her life and the lives of her children.\nAfter the assailant left, she ran to the kitchen, slammed the door and pushed the clothes dryer in front of it. She then ran to the living room door and screamed for help, but no one came, so she went to the lady next door. Her neighbor called her parents and the police. Two policemen arrived around 5:30 a. m., but she does not recall their names. It was 5:15 when she ran out of her house. She stated to them that her assailant was a Negro who wore glasses, had a moustache, and was taller or a \u201cwee bit taller\u201d than she, but that the outstanding feature about him was that he wore dark horn-rimmed glasses.\nLater that morning, a Detective Johnson and another detective brought a sketch of a man to her house. She testified that the man depicted in the sketch was the one who raped her, but he wore glasses. The officer then drew circles around the eyes of the sketched man and she definitely identified him. No other pictures or sketches were ever shown to her, nor was the sketch introduced into evidence at the trial.\nOn Monday, May 22, she was taken to the East St. Louis jail to view a lineup of five Negro men. She identified the man in the middle as being her assailant. At the trial, she identified the defendant as her assailant and stated that he was the man she had identified from the lineup. She could remember nothing unusual about the way any of the lineup participants had been dressed and did not remember how many of them wore glasses.\nShe did not know how far the streetlight was from the windows, but there were metal awnings on the front windows. She could not remember if the collar of her assailant\u2019s overcoat was turned up. Although there was a night-light in the bathroom, they were never in there. There were no lights on in the bedroom, but from the streetlight, she testified, \u201cit was light enough to see.\u201d He was behind her from the time they left the bedroom and stayed in the living room until they went into the second bedroom. There were no lights in the second bedroom which faces east.\nAfter the lineup, the defendant was taken to a room with the complaining witness, her parents and several officers, and questioned. He was wearing glasses and she had an opportunity to observe him throughout that time. She had also stated that her assailant had a Negro dialect. On redirect she testified that the voice of the defendant she heard in the interrogation room was the same she had heard in her home.\nDetective L. G. Adams testified that he participated in the arrest of the defendant and the investigation of this case. The lineup area where defendant was shown was enclosed with a full screen that the witness could see through. The defendant was positioned in the middle of the five men shown. Adams testified that the complaining witness identified the defendant from the lineup. He stated that \u201cshe was somewhat reluctant at first. She was not sure at first.\u201d\nAll of the lineup participants were Negroes and were wearing civilian clothes. Only the defendant wore glasses and either three or four had moustaches. At least three of the five were six feet tall or taller and one of the participants was only 20 or 21 years of age. Defendant\u2019s beard appeared to be two or three days old at the time of the lineup. The police report did not indicate how the participants were dressed.\nFollowing the lineup the defendant and the complaining witness were in the interrogation room approximately twelve minutes.\nThe following stipulations were made: Police dispatch was made on May 21 at 5:22 a. m. The complaining witness was taken to Scott Air Force Base at 8:50 a. m. for examination, and 21 slides taken were all positive of male sperm.\nJoyce Naomi Odom testified that on May 21, 1967, she was living with her husband, her baby and her brother-in-law, the defendant. On Saturday, May 20, she stated, defendant shaved, cleaned up and left the house around 5:30 or 6:00 p. m. He returned around 12:00 midnight and went to bed on the couch where he usually slept. She was awake at 5:00 on the morning of Sunday, May 21, as it was customary for her to get up and fix her husband\u2019s breakfast at that time. She had forgotten that it was Sunday and her husband did not have to work. At that time Henry was in the bathroom and she spoke to him. She was seven months pregnant at the time and had to use the bathroom frequently.\nOn cross-examination, she testified defendant had been living with them for six or seven months. He had gotten up early that Sunday morning to pick up his children. She was home later that morning when the police came to arrest the defendant. She was aware that defendant was charged for an occurrence which took place around 5:00 on Sunday morning, but at no time did she tell the police or State\u2019s Attorney that they had the wrong man. She stated that she had told her husband to tell them.\nGeorge Sansom testified that he was the magistrate before whom the preliminary hearing had been held. Referring to the notes he had taken at the hearing, he testified that the complaining witness had first described her assailant to the police as \u201ccolored, taller than I, moustache, had a coat, dark framed glasses.\u201d At the preliminary hearing she had testified that her assailant had not kissed her. She had also testified that she did not know what color or type of shirt her assailant was wearing.\nDetective Charles Vaughn testified that he was behind the screen in the lineup room when the lineup took place, but he was not with the complaining witness at that time. Defendant was the only participant wearing glasses during the lineup. Defendant had asked for his glasses prior to the lineup.\nImmediately after the lineup, he went into the interrogation room with the complaining witness, her parents, and Lt. Johnson. He stated:\nA. \u201cWhen I first went in, she wasn\u2019t saying anything. The father was talking and he asked her if one of the five guys in the lineup was the person that had raped her and she said she think it was the one in the glasses.\u201d\nQ. \u201cThis was after the lineup had taken place?\u201d\nA. \u201cYes, sir.\u201d\nQ. \u201cWas she being led in any way by Lt. Johnson and her mother and father?\u201d\nA. \u201cI couldn\u2019t say, because Lt. Johnson wasn\u2019t saying anything. The only somebody that was talking was her father.\u201d\nQ. \u201cAs to him, was he leading her then ?\u201d\nA. \u201cNo, he just told her he wanted her to be sure if it was the right man or not.\u201d\nOn cross-examination:\nQ. \u201cThen they brought Henry into that room, is that right, later on?\u201d\nA. \u201cYes, sir.\u201d\nQ. \u201cDid Marcia, at that time say she was sure?\u201d\nA. \u201cYes, sir.\u201d\nQ. \u201cBut at that time, she, in fact, became hysterical when they brought him into the same room with her?\u201d\nA. \u201cThat\u2019s right.\u201d\nOdell Odom testified that he was the brother of the defendant and that he measured the distance from the streetlight previously mentioned to the front of complaining witness\u2019 house to be 119 feet. He testified further that there were aluminum awnings on the front of the house.\nDefendant, Henry Odom, testified that on the evening of May 20, he shaved, cleaned up and went out to the Blue Note Club for the evening. He returned around midnight and went to bed in the living room. About five o\u2019clock he was awakened by the alarm on the television and used the bathroom.\nHe described the other participants in the lineup. One was six f\u00e9et and one-half to two inches tall, light or medium complexion, about 21 years of age and had no beard or moustache. Another was \u201capproximately five feet eight, between five feet eight or five feet ten or eleven inches, give or take an inch or inch and a half, say. He had a heavy moustache and was of dark complexion and he was in need of a shave.\u201d The third was \u201cobese, just about two inches taller than me and of about the same complexion, but there is no similarity.\u201d The fourth was tall and dark complexioned. Defendant was the only one wearing glasses and not having shaved since Saturday night, he needed a shave.\nDefendant first saw the complaining witness after the lineup when he was presented alone to her in the interrogation room with the complaining witness\u2019 parents and Lts. Johnson and Vaughn. He testified that he does not smoke or drink, never has, and did not drink that evening. He further testified that he has never seen or been in the complaining witness\u2019 house. On cross-examination he testified that he was 35 years of age, married, with five children, but separated from his wife. He has worn glasses for some time because of myopia and astigmatism. He testified that the police told him to keep the glasses, that they did not ask for the glasses until after the lineup, and that he did not ask to wear the glasses during the lineup. He is five feet, six inches, in height and weighs 160 pounds. After the lineup he was taken to the interrogation room and seated three to four feet from the complaining witness for twelve to fifteen minutes. At that time of the year at five o\u2019clock in the morning it was usually dark or dusk.\nThomas Edwards, a deputy sheriff in the St. Clair County Sheriff\u2019s Office testified that he knows the defendant and has had occasion to be in the Blue Note socially when defendant was there. He testified:\nA. \u201cThe time I saw him, a couple of times I saw him there, it was sweet soda. That is what I saw him drink. What he did afterwards, I don\u2019t know. I only saw him drink soda.\u201d\nQ. \u201cYou have never seen him drink anything alcoholic?\u201d\nA. \u201cNo.\u201d\nThe following testimony was part of that given at a hearing on a motion to dismiss on the basis that the lineup procedure was of such nature as to preclude the identification being a fair one.\nDetective Charles Vaughn testified, in part, that none of the other participants in the lineup wore glasses and that no one took the defendant\u2019s glasses from him until after the lineup was over.\nDetective L. G. Adams testified that he assisted with the lineup. He described two of the other participants. One was about 21 years of age, six feet or six feet, one inch, in height and light complexioned. The second was about five feet, eleven inches tall, 28 years of age and had a bushy moustache. He could not recall the other two. He thought the defendant was wearing a white shirt and dark trousers, but no coat, during the lineup. He stated that it is normal procedure during an investigation to take several photographs, rather than just one, to a witness. Defendant was rather \u201crowdy looking\u201d when he was arrested on Monday morning. In response to the question, \u201cWas Henry Odom taken out of the lineup into the detective\u2019s office in front of the witnesses ?\u201d he stated, \u201cAfter positive identification had been made.\u201d\nPolice conduct of extrajudicial lineup, showup and photoidentification procedures has recently been subjected to severe criticism and the issue of identification has become one of admissibility as well as credibility. People v. Wade, 388 US 218, 18 L Ed2d 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed2d 1178, 87 S Ct 1951; Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, 87 S Ct 1967; Simmons v. United States, 390 US 377, 19 L Ed2d 1247, 88 S Ct 967; Foster v. California, 394 US 440, 22 L Ed2d 402, 89 S Ct 1127; People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152.\nIt has been recognized that judged by the totality of the circumstances, the conduct of identification procedures may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to be denial of due process of law. Foster v. California, supra; Stovall v. Denno, supra; People v. Blumenshine, supra.\nDefendant argues that the in-court identification and testimony concerning the police station and other out-of-court identification denied him due process. However, our Supreme Court has interpreted Stovall to mean that \u201ca defendant so claiming must prove that the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identity that he was denied due process of law.\u201d People v. Nelson, 40 Ill2d 146, 150, 238 NE2d 378; People v. McMath, 40 Ill2d 388, 240 NE2d 593.\nIn McMath the court stated where \u201cidentification of the defendant could have been established apart from and independent of the police station and in-court identification,\u201d due process was not violated. In the present case the complaining witness was awakened by a man standing over her with a knife which she could feel and see. She could see him well enough to observe several physical characteristics of her assailant, including the way he was dressed. She also recognized his voice while in the police station. She was in close proximity and face-to-face with him during the rape. After considering the record in its entirety, we are unable to say that the out-of-court identification proceedings denied the defendant due process of law under the standards laid down by our Supreme Court in McMath.\nHowever, the record in this case discloses that there was no evidence offered in mitigation and aggravation; nor does the record show that the defendant was aware of his right to a hearing on mitigation and aggravation. This is essential. People v. Harris, 66 Ill App2d 46, 213 NE2d 588; People v. Tompkins, 112 Ill App2d 251, 251 NE2d 75.\nIn view of the foregoing, it is obvious we are not in a position to express an opinion concerning the alleged excessiveness of the sentence imposed. The judgment of conviction of the Circuit Court of St. Clair County is affirmed, but the sentence imposed is vacated and the cause is remanded to said court with directions that defendant be granted a hearing in accord with the views expressed herein to determine the proper sentence to be imposed.\nJudgment of conviction affirmed, sentence vacated and cause remanded with directions.\nEBERSPACHER and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "MORAN, P. J." } ], "attorneys": [ "Terryl W. Francis, of Granite City, for appellant.", "Robert H. Rice, State\u2019s Attorney, of Belleville (John M. Karns, Jr., of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Appellee, v. Henry Odom, Defendant-Appellant.\nGen. No. 68-54.\nFifth District.\nApril 28, 1970.\nTerryl W. Francis, of Granite City, for appellant.\nRobert H. Rice, State\u2019s Attorney, of Belleville (John M. Karns, Jr., of counsel), for appellee." }, "file_name": "0373-01", "first_page_order": 379, "last_page_order": 390 }