{ "id": 3560592, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER LAMACKI, Defendant-Appellant", "name_abbreviation": "People v. Lamacki", "decision_date": "1984-01-31", "docket_number": "No. 82\u2014521", "first_page": "403", "last_page": "419", "citations": [ { "type": "official", "cite": "121 Ill. App. 3d 403" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "388 N.E.2d 944", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993996 ], "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0001-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "392 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 661", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3261365 ], "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0661-01" ] }, { "cite": "360 N.E.2d 1206", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2974386 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "330" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0328-01" ] }, { "cite": "431 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 711", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5483509 ], "weight": 3, "pin_cites": [ { "page": "720" }, { "page": "723" }, { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0711-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "weight": 3, "pin_cites": [ { "page": "282" }, { "page": "282" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "401 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3230233 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "263" }, { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0259-01" ] }, { "cite": "406 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173132 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/406/0682-01" ] }, { "cite": "453 N.E.2d 1317", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3483034 ], "year": 1972, "pin_cites": [ { "page": "759" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0753-01" ] }, { "cite": "447 N.E.2d 301", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106990 ], "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0514-01" ] }, { "cite": "447 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1983, "opinion_index": 0 }, { "cite": "94 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3105923 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "471" }, { "page": "471" }, { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0437-01" ] }, { "cite": "418 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 1010", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3137559 ], "weight": 3, "pin_cites": [ { "page": "1014" }, { "page": "1015" }, { "page": "1015" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/1010-01" ] } ], "analysis": { "cardinality": 1290, "char_count": 35541, "ocr_confidence": 0.717, "pagerank": { "raw": 8.907371069467511e-08, "percentile": 0.500146533639606 }, "sha256": "1f573da9027e24ba3d1068acd826487443b72c3bf137720ddc6e292710f3ee84", "simhash": "1:6312b8642ee4ed75", "word_count": 5692 }, "last_updated": "2023-07-14T21:31:09.364868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER LAMACKI, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nWalter Lamacki (defendant) was charged by information with rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 \u2014 1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11 \u2014 3) and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A \u2014 2). On the State\u2019s motion, the two counts of armed violence were dismissed. On February 18, 1982, following a jury trial, defendant was found guilty of rape and deviate sexual assault. Defendant\u2019s motions for a new trial and his motion for relief notwithstanding the verdict were denied. Following a hearing in mitigation and aggravation, defendant was sentenced to serve two concurrent terms of 20 years in the Illinois Department of Corrections.\nOn appeal, defendant assigns as error: (1) the trial court\u2019s failure to suppress the identification testimony of complainant based upon allegedly \u201csuggestive\u201d photographic and lineup identification procedures; (2) the trial court\u2019s refusal to admit into evidence three \u201cmug books\u201d allegedly containing defendant\u2019s picture and a police \u201csketch\u201d derived from a description of the assailant provided by complainant; (3) certain prosecutorial remarks made during closing argument; (4) the State\u2019s failure to prove defendant guilty beyond a reasonable doubt; and (5) the trial court\u2019s abuse of discretion in sentencing defendant to two concurrent 20-year terms of imprisonment.\nDefendant was arrested on July 15, 1981, and charged with the July 14, 1981, rape and deviate sexual assault of complainant. The evidence elicited at the three pretrial hearings pursuant to defendant\u2019s motions to suppress complainant\u2019s identification testimony reflects the following:\nOn July 14, 1981, at about 10 p.m., the 25-year-old complainant was returning home from the White Hen Pantry store located at the corner of Flossmoor and Pulaski streets in Country Club Hills, Illinois, when she was accosted by a man carrying a knife. She was raped and forced to perform an act of deviate sexual conduct. Following her attack, complainant returned home and telephoned the Country Club Hills police station. When the police arrived, complainant gave to them a general description of her attacker. On July 15, 1981, at about 10 a.m., complainant went to the Country Club Hills police station. While at the station, Police Sergeant William Schultz (Sergeant Schultz) showed complainant three \u201cmug books\u201d containing \u201chundreds and hundreds\u201d of pictures. According to Sergeant Schultz, the books should have included two sets of photographs (front view and profile) of defendant. Complainant was unable to identify her attacker in the \u201cmug books.\u201d However, she did provide a detailed description of her assailant to a police artist who made a \u201ccomposite\u201d of the assailant from an \u201cidentification kit.\u201d Complainant described her assailant as \u201cfive-eight or six-two, Caucasian\u201d with shoulder length blonde hair, a moustache and a beard. She also stated that her attacker had \u201cWally\u201d tatooed on his lower arm, although she could not recall which arm. Complainant testified at trial that she thought her assailant had a full \u201cblondish\u201d or \u201creddish\u201d beard.\nSergeant Schultz testified at the suppression hearings to the following:\nOn July 15, 1981, at about 3 p.m., he discussed this rape incident with another police person. As a result of this discussion the officers were of the impression that they knew a man who \u201cfit the composite\u201d drawn by the police artist from complainant\u2019s description. Although complainant was \u201cdissatisfied\u201d and questioned the accuracy of the \u201ccomposite,\u201d the police officers believed that defendant fit the description and the composite. At about 3:30 p.m. that same day, Sergeant Schultz and a second officer went to defendant\u2019s condominium at 4110 West 102d Place in Country Club Hills, about 2 k blocks southwest of the White Hen Pantry store near which the instant crime took place. Sergeant Schultz and defendant \u201chad a conversation\u201d following which defendant was \u201ctransported\u201d in a police vehicle to the Country Club Hills police station.\nAt the time defendant was taken to the police station, Sergeant Schultz did not consider him to be \u201cin custody.\u201d A \u201cpolaroid\u201d photograph of defendant was taken by Sergeant Schultz at the police station and at about 4:30 p.m. he took this photograph, along with eight others of different men, to complainant\u2019s home. He did not tell complainant that he believed her assailant\u2019s photograph was among the nine. She looked at each individual photograph and when \u201cshe came to [defendant\u2019s] photograph she set it down on the table and said, \u2018That\u2019s him.\u2019 \u201d Sergeant Schultz returned to the police station and at about 5 p.m. on July 15,1981, placed defendant under arrest.\nJohn A. McGuire, one of defendant\u2019s attorneys throughout the pretrial stage of the prosecution, testified at the suppression hearing held on November 25,1981, to the following:\nOn July 17, 1981 (it appears from McGuire\u2019s testimony that he was in fact referring to the events which occurred on July 15, 1981), he received a telephone call from defendant who told McGuire that he was \u201clocked up in Country Club Hills.\u201d Defendant asked McGuire to represent him. At about 6 p.m. that day, McGuire telephoned the Country Club Hills Police Department and spoke with Sergeant Schultz. Sergeant Schultz told McGuire that defendant \u201cwas incarcerated and that he was charged with rape, and that they were going to conduct a lineup.\u201d McGuire told Sergeant Schultz that he \u201cwished that he would not talk to defendant\u201d and \u201casked him to delay any line-up until [McGuire] got there.\u201d McGuire acknowledged that Sergeant Schultz \u201cmay\u201d have told him a lineup would be conducted at 6:30 p.m. Sergeant Schultz later testified that he in fact told McGuire that a physical lineup was going to be held at 6:30 and he asked McGuire \u201cif he wanted to be present.\u201d McGuire responded, \u201cI will be there.\u201d\nA lineup was conducted at about 6:45 p.m.; McGuire arrived at the police station at approximately 7:15 or 7:30 p.m.\nIn the lineup defendant elected to stand at the far left. He was dressed in the same clothes he had worn when Sergeant Schultz took the \u201cpolaroid\u201d photograph which Schultz showed to complainant two hours earlier. Defendant was dressed in a T-shirt with an emblem containing the phrase \u201cA Friend In Weed.\u201d No other man in the lineup wore a similar T-shirt although others did wear \u201cpull-over\u201d T-shirts. One other man in the lineup had a visible tatoo on his arm.\nTwo hours after complainant identified defendant from his \u201cpolaroid\u201d photograph as the man who attacked her, she also identified him in the lineup. Although complainant had described her attacker as a man with a \u201cfull\u201d beard, Sergeant Schultz described defendant\u2019s facial appearance on July 15, 1981, the day following the instant crime, as a \u201cmoustache that comes down below his lower lip and a slight goatee *** kind of like a Van Dyke goatee on his chin.\u201d\nAfter the lineup was conducted and defendant had been identified by complainant, he was advised of his Miranda rights. Defendant acknowledged that he understood these rights and agreed to talk with Sergeant Schultz and an assistant State\u2019s Attorney who was present. After a few questions were asked, however, defendant refused to answer further questions until he spoke with his lawyer.\nIn argument on his pretrial motion to suppress complainant\u2019s identification testimony, defendant asserted that because the lineup was conducted in the absence of his counsel and he was questioned further after the police were asked by defense counsel to delay such activity, defendant was denied his right to the assistance of counsel during a \u201ccritical stage\u201d of a criminal prosecution; that the use of a \u201cpolaroid\u201d photograph, which was over-sized in comparison to the other photographs viewed by complainant, was \u201chighly suggestive\u201d and, therefore, prejudicial to defendant; and that the lineup procedure, in which defendant wore the same clothing he wore in the photograph shown to complainant by Sergeant Schultz about two hours prior to the lineup, was \u201chighly suggestive and prejudicial.\u201d\nAfter argument, the trial court denied defendant\u2019s pretrial motions, finding that \u201cthe failure of defendant\u2019s lawyer to appear at the time he apparently agreed to appear cannot be considered as a denial of the right to counsel\u201d; that defendant was apprised of his Miranda warnings; and that the court could not \u201cconclude that there was anything suggestive or impermissible\u201d about the photographic identification or the physical lineup identification.\nWhen defendant\u2019s trial began on February 11, 1982, he renewed his motion to suppress complainant\u2019s identification testimony. Defendant\u2019s motion was again denied.\nThe complainant (a black woman) testified to the following:\nOn July 14, 1980, she lived in Country Club Hills with her fiance and her children. As she returned home from shopping at the Wliite Hen store, she walked westward on the north side of Flossmoor Road. A \u201cguy\u201d jumped out of some bushes and yelled, \u201cNigger, me and you tonight, I\u2019m going to rape you.\u201d She started to run back toward the Wliite Hen because she had seen a uniformed policeman in the store and a Country Club Hills police car outside the store. As she ran, however, the man came up behind her, tripped her and she fell.\nThe man threatened her with a knife, put his arm around her neck and \u201cpulled her off the road\u201d to a garden area about 50 feet from the street. The assailant repeatedly said: \u201cMe and you, I\u2019m going to rape you tonight. The niggers do it all the time.\u201d She was forced to disrobe and the assailant \u201cstraddled\u201d her. He told her to \u201csuck his penis.\u201d When she refused, he \u201cgrabbed the top of [her] head and forced her to suck it.\u201d He unbuckled his pants and pushed them down. He forced his penis into her mouth. He then \u201cput his penis into [her] vagina and he ejaculated.\u201d\nThe assailant then told complainant she could dress and leave. As she left, he followed her for a short distance. The assailant asked her name and she replied \u201cBetty.\u201d Complainant asked her attacker if he knew her; he responded that he knew her from \u201cthe store.\u201d As complainant reached the corner of Flossmoor and Cypress, the assailant said he was going the other way and he left.\nComplainant identified defendant in court as her assailant. She stated that the garden area to which defendant \u201cpulled her\u201d was lit by the lights of the White Hen store, the street lights and a light on a building near the garden area. She was also able to see his face as he stood under a street light when he followed her to the corner of Flossmoor and Cypress after the attack. She recalled that as he grabbed her initially she saw a tatoo on his lower arm, but she could not recall which arm it was or the design. Complainant recognized defendant as a man she \u201ccaught a glimpse\u201d of in the White Hen store when she was at the cash register shortly before she was attacked.\nFollowing the attack, complainant returned home and telephoned the police. When the police arrived, she described her assailant. She refused to accompany the police to the hospital until someone was available to tend her children. When her fiance returned home about 1:30 a.m. the next morning, July 15, 1981, he took her to South Suburban Hospital. Prior to going to the hospital, she showered and changed clothes but \u201cdidn\u2019t take a douche.\u201d\nAt the hospital complainant was examined by Dr. William Hughes. He testified that he performed a \u201cgeneral medical examination\u201d and obtained specimens required by the \u201cRape Examination Kit\u201d (sometimes referred to as a \u201cVitullo Evidence Kit\u201d). Such specimens include swabs from various areas of the victim\u2019s body including the vaginal area and the mouth. In addition, samples of complainant\u2019s blood and pubic hair were collected. Dr. Hughes observed no \u201cgross abnormalities, bruises or scratches\u201d on complainant\u2019s body.\nPatricia Hamby (Hamby), a forensic scientist employed by the Illinois Department of Law Enforcement in Joliet, testified as an expert to test results of the blood type and body-fluid characteristics of defendant and complainant. From her findings Hamby concluded that defendant\u2019s blood type and body-fluid characteristics were not particularly unusual but were representative of 12% of the Caucasian male population.\nHamby examined People\u2019s Group exhibit No. 2 (complainant\u2019s leotards, a red belt and a pair of slacks) and stated that when tested \u201cthere were chemical reactions suggesting the presence of semen but [Hamby] could not confirm\u201d this and the test was \u201cinconclusive.\u201d People\u2019s exhibit No. 1 \u2014 A (a white panty worn by complainant the night she was attacked) was examined by Hamby and she stated that here \u201csemen was identified.\u201d The seminal material was further examined and found to be \u201cconsistent with the seminal material from a non-secretor\u201d which corresponded with those characteristics found in defendant.\nThe trial court denied defendant\u2019s motion to strike Hamby\u2019s testimony concerning laboratory tests which she did not herself perform.\nDefendant presented two alibi witnesses, David Puikis and Duane Thomas Terrell.\nDavid Puikis testified that on July 14, 1981, he was at his home at 15507 Ridgeway, Markham, Illinois. He was hosting a \u201ccard\u201d party for about 15 to 20 people. Defendant arrived at the party between 10 p.m. and 11 p.m. and remained for \u201ca couple of hours.\u201d Puikis was unable to remember whether defendant was bearded that night, and during cross-examination Puikis admitted that he was \u201cprobably pretty well inebriated\u201d and because he was not \u201cpaying attention,\u201d he could not say \u201cdefinitely\u201d what time defendant arrived or left.\nDuane Thomas Terrell testified that he knew defendant for about one year but had only \u201cseen\u201d him on four occasions. Terrell lived across the street from Puikis\u2019 house and arrived at the party at about 9:30 p.m. Although he did not recall if defendant arrived at the party alone, Terrell stated that he was \u201cpositive\u201d that defendant arrived at 10 p.m. During cross-examination Terrell admitted that he \u201cestimated\u201d defendant\u2019s time of arrival as 10 p.m. and that on July 15, 1981, the day after the crime, he had told a police officer that defendant arrived at the party between 10 p.m. and 11 p.m. Terrell stated that defendant did not wear a beard on the night of July 14, 1981, but he was unable to recall how defendant was dressed.\nThe last defense witness was Adam Kabala, the owner of the White Hen Pantry store near where the instant crime occurred. He stated that he saw defendant in the store \u201ca couple of times\u201d on July 14, 1981, and although he was in need of a shave he did not have a full beard. Kabala also stated that he did see a police officer in his store that evening but did not know if the officer and defendant were present at the same time.\nThe trial court denied defendant\u2019s motion to admit into evidence the three \u201cmug books\u201d which complainant had reviewed and the police composite sketch derived from her description of her assailant. Closing arguments were made and the jury instructed. After approximately three hours of deliberation, the jury found defendant guilty of rape and deviate sexual assault.\nA presentence report was ordered by the court. On February 26, 1982, after defendant\u2019s motions for a new trial and for relief notwithstanding the verdict were denied, a hearing in mitigation and aggravation was held. Defendant was then sentenced to serve two concurrent 20-year terms of imprisonment. Defendant appeals his conviction and his sentence.\nI\nInitially, defendant contends that the trial court erred in failing to suppress complainant\u2019s identification testimony. Defendant urges that the identification was based upon \u201chighly suggestive\u201d photographic and lineup procedures which amounted to a denial of due process. Defendant argues that (1) the initial identification was made \u201cfrom a batch of nine photographs\u201d shown to complainant when defendant was already in police custody and a lineup could have been held; (2) the use of a \u201cpolaroid\u201d photograph of defendant which was larger and \u201cnewer\u201d than the other photographs in the array was \u201chighly suggestive\u201d; and (3) during the subsequent lineup, defendant was wearing the same clothes he wore when his photograph was taken and was shown to complainant two hours before the lineup.\nIt is well established in Illinois that the determination as to whether a pretrial confrontation in a specific instance is \u201c \u2018so unnecessarily suggestive and conducive to irreparable mistaken identification that [the accused] was denied due process *** depends on the totality of the circumstances surrounding it' [citation], and defendant bears the burden of proving that such a confrontation resulted in a denial of due process [citations]. In order to sustain this burden, the totality of the circumstances must not only demonstrate suggestiveness [citations], but also show a substantial likelihood of misidentification ***.\u201d People v. Rosa (1981), 93 Ill. App. 3d 1010, 1014, 418 N.E.2d 124.\nIt has been held that there is \u201cno constitutional impediment to the use of photographs *** despite the recognition that there is a risk of misidentification when the procedures are improperly employed.\u201d (People v. Kubat (1983), 94 Ill. 2d 437, 471, 447 N.E.2d 247.) If the suspect is in custody, however, and a lineup is \u201cotherwise feasible,\u201d our supreme court has \u201cgenerally disapproved of the use of photographs as a basis of identification, absent extenuating circumstances justifying their use.\u201d People v. Kubat (1983), 94 Ill. 2d 437, 471, 447 N.E.2d 247.\nDefendant in the instant case contends that no extenuating circumstances here existed which justified the use of the photographic identification procedure. He urges that because he was \u201cin custody\u201d and a lineup was feasible, the use of what he terms a \u201chighly suggestive\u201d polaroid photograph was unwarranted. Although the photographs in question have not been made a part of the record on appeal, we note that courts in Illinois have held that the use of different photographs in the same array (i.e., \u201cpolaroid\u201d and standard \u201cmug shots\u201d) \u201cdoes not automatically render a photo suggestive: ***. Different need not be equated with suggestive.\u201d People v. Bryant (1983), 94 Ill. 2d 514, 520, 447 N.E.2d 301.\nIn any event, even evidence which results from an unnecessarily suggestive identification may be admissible at trial if it is reliable. (People v. Rosa (1981), 93 Ill. App. 3d 1010, 1015, 418 N.E.2d 124.) \u201cReliability is the most important factor in determining the admissibility of identification testimony.\u201d (Emphasis added.) (People v. Kubat (1983), 94 Ill. 2d 437, 473, 447 N.E.2d 247.) The reliability of the identification involves an evaluation of the following factors:\n\u201c \u2018[T]he opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of the witness\u2019 prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and length of time between the crime and the confrontation.\u2019 \u201d People v. Rosa (1981), 93 Ill. App. 3d 1010, 1015, 418 N.E.2d 124.\nThe evidence here indicates that complainant had ample opportunity to view the defendant under \u201clighted\u201d conditions during and immediately after the crime. Complainant\u2019s testimony was uncontradicted that they stopped and spoke to each other \u201cunder a street light\u201d at the corner of Flossmoor and Cypress streets. Although complainant\u2019s initial description of her assailant differed somewhat from that of defendant\u2019s actual characteristics, her identification of him on the day following her attack was certain and unwavering.\nThe trial court ruled that the photographic array and lineup from which complainant identified defendant was not so suggestive as to warrant suppression of complainant\u2019s identification testimony. From our review of the totality of circumstances we conclude that defendant failed to establish that the procedures employed by the police in this case denied him due process. The trial court did not, in our opinion, err in denying defendant\u2019s pretrial motion to suppress complainant\u2019s identification testimony.\nDefendant also contends that the identification testimony should have been suppressed because he was denied his right to the presence of counsel at the lineup. At that time defendant had been arrested, given Miranda warnings and had contacted his attorney who advised police that he \u201cintended\u201d to be present at the lineup.\nWhen the lineup was being conducted, no formal charges had yet been filed against defendant. The State asserts that it had not yet \u201ccommitted itself to prosecute\u201d defendant and no adversary judicial proceedings had been initiated. The State contends, therefore, that defendant\u2019s right to counsel had not yet attached.\n\u201cIt has been established that the right to counsel attaches to \u2018lineups conducted after the initiation of adversary judicial criminal proceedings against an accused by whatever means.\u2019 [Citation.] A defendant does not have a constitutional right to counsel at a pre-indictment lineup unless adversary proceedings have been initiated such as by formal charge, preliminary hearing, indictment, information or arraignment. [Citation.] The right of counsel does not arise merely because when the lineup was held, defendant was in custody ***.\u201d People v. Logan (1983), 117 Ill. App. 3d 753, 759, 453 N.E.2d 1317, citing Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.\nIn Logan a lineup was held despite defendant\u2019s alleged request that such lineup be delayed until his attorney arrived. In the case at bar a lineup was likewise conducted despite the request of defendant\u2019s attorney that the lineup be delayed until he arrived. At the time this lineup was conducted, however, no adversary judicial proceedings had been initiated against defendant. We agree, therefore, that defendant\u2019s right to have counsel present during the lineup had not yet attached.\nII\nDefendant next contends that the trial court erred in refusing to admit into evidence a police \u201csketch\u201d derived from a description of the assailant provided by complainant and three \u201cmug books\u201d which, according to Sergeant Schultz, \u201cshould have\u201d contained defendant\u2019s photograph. Defendant argues that this action by the trial court prevented the jury from judging the credibility of complainant\u2019s identification testimony \u201cin a realistic light\u201d and thereby prejudiced the defense.\nAt trial, Sergeant Schultz testified that the \u201cmug books\u201d should have contained two sets (frontal and profile views) of defendant\u2019s photographs, but he could not say with certainty that they were in fact present in those books.\nDefendant contends that whether his photographs were contained in the \u201cmug books\u201d is a question to be determined by the jury. Defendant\u2019s purpose, however, appears to be an attempt to have the \u201cmug books\u201d admitted to allow the jury to judge the credibility of complainant\u2019s identification testimony At trial, complainant stated that, after reviewing the photographs in these books, she was unable to identify her assailant. The trial court ruled the mug books inadmissible because the evidence was \u201cnot certain nor definitive on the question of whether or not at the time complainant viewed the \u2018mug books' *** the photograph of [defendant] was either in once or twice.\u201d The admission of these books, the court explained, \u201cwould be extremely prejudicial and inflammatory and adverse to defendant.\u201d\n\u201cWhether evidence proffered by a defendant is relevant is a question addressed to the sound discretion of the trial court.\u201d (People v. Boyd (1980), 81 Ill. App. 3d 259, 263, 401 N.E.2d 304.) The trial court may reject evidence which it determines to be \u201cof little probative value because of its remoteness, uncertainty, or conjectural nature.\u201d People v. Boyd (1980), 81 Ill. App. 3d 259, 263, 401 N.E.2d 304.\nOur review of the record persuades us that in this instance the trial court did not abuse its discretion in rejecting the \u201cmug books.\u201d\nDefendant also alleges error in the trial court\u2019s failure to admit into evidence the police artist\u2019s sketch derived from complainant\u2019s description of the suspect and the use of an \u201cidentification kit.\u201d Complainant stated at trial that she was not \u201csatisfied\u201d with the sketch and said that it did not look like her attacker or defendant. Defendant\u2019s stated purpose in offering the sketch was to impeach complainant\u2019s alleged \u201cinconsistent description.\u201d\nIt is well established that \u201ca witness may be impeached by extrinsic proof that he made a statement out of court inconsistent with his in court testimony. The prior statement has to be inconsistent ***.\u201d (Emphasis added.) E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 801.9 (1979).\nDefendant maintains that because it was inconsistent with complainant\u2019s identification testimony at trial, the sketch was relevant and admissible. A review of the record, however, indicates that complainant did not at any time consider the sketch to accurately represent her attacker. Her original description of her assailant and her subsequent identification testimony was not inconsistent with her prior expression of dissatisfaction with the police artist\u2019s sketch. The trial court, therefore, properly excluded the police artist\u2019s sketch.\nIll\nDefendant next assigns as error certain remarks uttered by the prosecution during closing argument. Defendant contends that the remarks relating to the testimony of the State\u2019s expert witness, Patricia Hamby, were so prejudicial as to deny him a fair trial. The allegedly prejudicial remarks complained of were not, however, specified in defendant's written post-trial motion for a new trial, nor did defendant submit to the court any oral post-trial motion.\nThe general rule followed by Illinois courts is that \u201cfailure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review.\u201d (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) This waiver rule applies to constitutional, as well as nonconstitutional questions. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) The central purpose of the waiver doctrine is to allow the trial court an opportunity to correct any alleged error. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 720, 431 N.E.2d 1154.) Courts of review, however, as a matter of grace in a case involving deprivation of life or liberty in which the evidence appears closely balanced, may take notice of errors appearing upon the record \u201c '*** which deprived accused of substantial means of enjoying a fair and impartial trial, although no [alleged errors] were preserved or the [alleged errors are] imperfectly presented.\u2019 \u201d People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856.\nIn the instant case Patricia Hamby, a forensic scientist, testified as an expert. Following a highly technical description of general blood types and body-fluid categories, Hamby stated her opinion as to defendant\u2019s and complainant\u2019s blood types. Hamby opined that test results comparing defendant\u2019s blood type and body-fluid characteristics with seminal material deposited on complainant\u2019s panty during her July 14, 1981, attack indicated that such seminal material was consistent with defendant\u2019s characteristics. She stated further, however, that similar characteristics are present in \u201capproximately 12 percent of the male Caucasian population.\u201d\nDefendant assigned error to the following prosecutorial remarks based on Hamby\u2019s testimony:\n\u201cShe [Ms. Hamby] told you *** that Mr. Lamacki is one of the twelve percent, one person who constitutes twelve percent of the white population who could have deposited that semen in her body.\nShe told you that semen, left in the vaginal area of [complainant], and in the panties worn by [complainant] on July 14th 1981, could have come from only twelve percept [sic] of the population that could have committed these acts. But, then you have to go further. What part of that twelve percent of the male, white population, happens to live two blocks from the scene of the crime? What part of that twelve percent of the male, white population, was in the White Hen Pantry at 10:00 o\u2019clock that evening? Go further.\nWhat part of that twelve percent of the white population who could have raped [complainant], was picked out of a photo-line-up the next day?\nGo further than that? What part of that twelve percent was also identified in a physical line-up? Only one part of that twelve percent, that\u2019s him. Walter Lamacki. That is the one that raped [complainant].\nLook at the facts, and the evidence that you have heard. Again, there is only a twelve percent of this population that could have committed this crime, only twelve percent. Start looking into the evidence, and narrow that twelve percent.\u201d (Emphasis added.)\nDefendant argues that these remarks clearly indicate that \u201cthe State\u2019s Attorney deliberately misstated the evidence.\u201d\nIt has been held that \u201c[f]or improper comments by the prosecutor *** to be sufficient to merit reversal they must be of a substantial magnitude when viewed in light of the entire record and argument\u201d and must \u201cresult in substantial prejudice to the accused.\u201d (People v. Cukojevie (1981), 103 Ill. App. 3d 711, 723, 431 N.E.2d 1154.) Where the alleged improper comments do not constitute a material factor in defendant\u2019s conviction or are of such a minor character that prejudice to defendant is not their probable result, the verdict will not be disturbed. People v. Cukojevie (1981), 103 Ill. App. 3d 711, 723, 431 N.E.2d 1154.\nAlthough we agree that the prosecutor\u2019s remarks might better not have been made, our review of the entire record in the case at bar compels our conclusion that such remarks were not so prejudicial as to constitute reversible error.\nIV\nDefendant next contends that the State failed to prove him guilty beyond a reasonable doubt. Defendant asserts that complainant\u2019s identification testimony was \u201chighly suspect\u201d and that the scientific evidence introduced by the State was \u201cnearly worthless.\u201d\n\u201cA court of review will not reverse [a jury] finding unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to raise reasonable doubt of guilt.\u201d (People v. Stepney (1977), 46 Ill. App. 3d 328, 330, 360 N.E.2d 1206.) \u201cIt is well settled that a positive identification by even one witness, who had a good opportunity to observe an accused in terms of length of time, proximity and lighting conditions is sufficient to sustain a verdict of guilty.\u201d People v. Stepney (1977), 46 Ill. App. 3d 328, 330, 360 N.E.2d l206.\nDefendant urges that \u201cinconsistencies\u201d and \u201cconflicts in testimony\u201d at trial raise reasonable doubt of his guilt.\nIllinois courts have held that \u201cminor inconsistencies in a rape complainant\u2019s testimony do not constitute grounds for reversal. *** \u2018***[M]inor variances in testimony may occur, and if so, such variances constitute mere discrepancies going only to credibility.\u2019 \u201d People v. Rankin (1979), 73 Ill. App. 3d 661, 664, 392 N.E.2d 288.\nDefendant has not demonstrated the existence in this record of evidence sufficient to raise a reasonable doubt of his guilt. Such minor inconsistencies in complainant\u2019s testimony as are noted and such minor conflicts which may exist between complainant\u2019s testimony and that of other witnesses relate only to the weight to be accorded such testimony. It appears that the jury rejected the testimony of defendant\u2019s alibi witnesses and found complainant\u2019s testimony more credible. There was in our opinion sufficient evidence, if believed by the jury to support its verdict.\nV\nFinally, defendant contends that the trial court erred in sentencing him to two concurrent 20-year terms of imprisonment.\nDefendant urges in his brief that, in view of the fact that complainant \u201csuffered no physical harm\u201d during the attack and because of his potential for rehabilitation, as indicated by his expressed desire to learn a trade while imprisoned, such a severe sentence was not warranted and should be reduced. At the sentencing hearing, defendant urged that he be sentenced to the minimum sentence of six years.\nThe State argues that complainant escaped \u201cphysical injury\u201d only because of her acquiescence to defendant\u2019s threats made with a knife. The State urges that the \u201cacts performed were vicious and spiteful\u201d and that \u201cthe occurrence of physical injury is not required in aggravation in order to impose a sentence greater than the minimum.\u201d\nOn February 26, 1982, a hearing in mitigation and aggravation was conducted. At such hearing the court stated to the defendant: \u201cThe fact that you are on probation greatly affects my judgment The court farther stated that \u201cto assess the minimum would be a flagrant disregard for the sanctity and the right of the victim to walk the streets of a south suburban community ***.\u201d The court characterized defendant\u2019s crime as an offense \u201cthat cries out for punishment\u201d and \u201cmust be discouraged.\u201d\nIt is well established in Hlinois that, absent an abuse of discretion, courts of review \u201cwill not substitute [their] judgment for that of the trial court merely because [they] would have balanced the appropriate factors differently if the task of sentencing had been [theirs].\u201d People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.\nThe trial court, in our opinion, sought to \u201cbalance the appropriate factors\u201d in sentencing the defendant. The sentence imposed was well within the 6- to 30-year limit authorized by statute. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 8\u20141(3).) Under these circumstances, we cannot conclude that the trial court abused its discretion.\nFor the foregoing reasons, we affirm the jury\u2019s verdict and the sentence imposed by the trial court.\nAffirmed.\nHARTMAN, P.J., and STAMOS, J., concur.\nAn \u201cidentification kit\u201d consists of slides of various parts of the face from which a composite likeness of an offender is derived rather than an artist\u2019s free hand drawing of an offender.\nComplainant was also shown a photograph of defendant\u2019s tatoo. She later stated, however, that she identified defendant \u201cfrom his face.\u201d\nThe State argues that defendant\u2019s objections to complainant\u2019s identification testimony is waived by defendant\u2019s failure to specifically preserve that issue in his written post-trial motion. (People v. Edwards (1978), 74 Ill. 2d 1, 4, 388 N.E.2d 944.) Although defendant\u2019s post-trial motion alleged \u201cgeneral\u201d error and may be subject to waiver, we will address the merits of defendant\u2019s contention.\nThe record does not reveal the nature of defendant\u2019s 1979 conviction for \u201cassault.\u201d Although at the sentencing hearing the prosecution argued that defendant was on probation for \u201caggravated assault,\u201d we are unable to determine from the record the validity of the prosecution\u2019s argument. The record reflects only that on the date of the instant offenses, defendant was on probation for \u201cassault.\u201d", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Steven Clark and Kenneth Jones, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Harry H. Semrow, Jr., Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER LAMACKI, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 82\u2014521\nOpinion filed January 31, 1984.\nSteven Clark and Kenneth Jones, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Harry H. Semrow, Jr., Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0403-01", "first_page_order": 425, "last_page_order": 441 }