Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Sherman Bickham (hereafter referred to as defendant) was indicted for the crimes of rape and taking indecent liberties with a child. He was tried before a jury which returned a verdict finding him guilty of indecent liberties, and the court sentenced him to a term of 14 to 20 years in the Illinois State Penitentiary.
Mildred Bland, mother of Doris Sullivan, the complaining witness, testified that she lived in a three and a half room apartment on the second floor, with her two daughters, Doris and Cynthia Sullivan, and a girl named Mary-Joe; that the girls slept in the living room. She further testified that she was engaged to the defendant; that he did not live with her but spent most of his time at her apartment, and had purchased a record player and kitchen and bedroom furniture for the apartment. She stated that she had frequent sexual relations with the defendant, specifically twice on the morning of June 18, 1965. She further testified that at the time of the trial her daughter Cynthia was in the Geneva home for girls.
Mildred Bland first testified as a witness for the State; she was then called as a witness for the defendant and testified that the complaining witness had told her she hated the defendant and would do anything to put him away. The witness stated that Doris hated the defendant because he tried to run the teenagers out of the house late at night, as the witness wished him to do; that she would still marry him if she could because what her daughter had said was not true. She admitted that her signature was on the complaint, but that she did not know what she was signing. She further testified that she had had the defendant arrested in March; that he was fined $100 and sent to County Jail.
When Mildred Bland was called by the State as a witness in rebuttal she testified that her testimony the day before, concerning her daughter's wanting to put the defendant away, was not true, and she now wished to change her testimony; that the defendant used to beat her up and she was afraid of him; that when she was on the witness stand the day before she was trying to help the defendant, but that she did not want anything more to do with him.
Doris Sullivan, the complaining witness, testified that she was 15 years old; that the defendant had been living at her home with her mother for about five or six months; that on Friday, June 18, 1965, she went to bed in the living room at about 10:30 p.m., at which time the defendant and his nephew, David Burton, were in the bedroom. She stated that she was awakened by the slamming of a door and she then put on her shoes and pajamas and started to a neighbor's apartment on the same floor; that the defendant then came out of the bedroom, asked where she was going and where her mother was; that when she told him she didn't know where her mother was, he pulled her into the bedroom; that she tried to get away from him but he threw her on the bed and got on top of her; that he put his hands around her throat and started choking her, saying he was going to kill her and would kill her mother, too; that he said, "I'll kill all of you."
The witness further testified that the defendant continued holding her and choking her; that he pulled down her pajamas and had intercourse with her; that he then told her to go to the bathroom, and when she tried to get away he dragged her back into the bedroom and again had sexual intercourse with her. She testified that the defendant said he was going to kill her and her mother when the mother got home, then said he was sorry, that he didn't mean it, and that he was sick. She testified that she finally got into the living room where she wrote a note, "Call the police. Quiet. 208," and dropped it out the window; that she saw a man pick it up and give it to an officer in a squadrol which came along at that time; that the officer then came to the door of the apartment and flashed a light, at which time she pointed to the defendant and said he had raped her. She then ran to the neighbor's apartment and from there she was taken to a hospital and was examined by a doctor.
On cross-examination Doris Sullivan stated she was in the first year of high school; that the first time she had sexual relations was when she was seven years old, but that since that time she had no sexual relations until the occurrence in question. She stated that she did quarrel with the defendant about her sister Cynthia who was then in Geneva; that she was angry with him because he was "messing with" her sister. She testified that David Burton came to the house the evening of June 18, at about 10 o'clock; that the defendant was already there, and some of her friends were there also. She said she knew where her mother had gone but did not tell the defendant because she knew her mother would not want him to know.
Dr. Rafael Ortez testified that he was a senior resident in obstetrics and gynecology at Billings Hospital and was a licensed physician; that on June 19, 1965, at about 6:30 a.m., he examined Doris Sullivan; that a vaginal secretion taken from her indicated the presence of sperm and there were physicial conditions observed which could have been the result of an act of intercourse.
Officer John Cross testified that he was riding in his squadrol, going east on 63rd Street, when a man approached him and handed him a note; that after reading it he proceeded to the apartment indicated in the note, and the door was opened by the complaining witness, who appeared to be cowering and scared; that she pointed to the defendant and said, "That man raped me." The witness stated that the defendant was wearing shorts at that time; that he ordered the defendant to get dressed and took him into custody; that he took the defendant and Doris Sullivan to the police station, then took the girl to the hospital.
The defendant, in his own behalf, testified that he was 32 years old, and was temporarily living with Mildred Bland, to whom he was engaged; that on June 18, 1965, at 9:00 a.m., he was with Mildred Bland on the street when he saw his nephew, David Burton; that about 7:30 or 8:00 that evening he and David went into the Bland home where there were four teenagers talking in the apartment; that he and David went into the bedroom and played records; that he went into the living room about 1:00 a.m., and saw the teenagers drinking wine, and he told them they should leave as it was getting late and Doris' mother would not want them there. He testified that Doris started arguing with him, then said they would leave soon, and he went back to his room with David and went to sleep; that later he was awakened by the flashlight of the policeman. He denied touching the complaining witness or having sexual intercourse with her.
The parties stipulated that if Officer John Downey were called to testify he would state that the complaining witness told him the defendant came into her bedroom and that she wrote the note and dropped it out the window, asking for help. It was further stipulated that Paul Esling, if called, would testify that he is an official court reporter assigned to the State's Attorney's office, and that on June 28, 1965, he was assigned to the Grand Jury, at which time and place the complaining witness testified with regard to the defendant that "He grabbed me by the neck and took me in the bedroom. He started choking me, and he twisted my arm behind my back. And he took my pajamas and he tore the top off. And he pulled the other part down and he told me to be quiet and shut up or he would kill me."
The defendant contends in this court that he did not receive a fair and impartial trial and that he was not proved guilty beyond a reasonable doubt. He first argues that during the cross-examination of the complaining witness by counsel for the defendant, the court interrupted counsel and said, "Mr. Malek, I am very liberal in this cross-examination; but you have cross-examined for fifty minutes now. And I would like you to get down to the issues." Defendant argues that since this statement was made in the presence of the jury it could have the effect of negating the testimony which had been brought out by defense counsel during the cross-examination. A reading of the cross-examination of defendant's counsel as set out in the abstract affords sufficient justification for the court's statement; the testimony was repetitious.
The defendant cites People v. Pelletri, 323 Ill. 176, 153 NE 591, where the court held that the trial court has the right to hold the cross-examination within reasonable and proper limits, but it cannot substantially deny cross-examination by unduly limiting it. Also cited is People v. Coli, 2 Ill.2d 186, 117 N.E.2d 777, which is not in point because it is an issue of ...