APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, Dennis Pearson, who had been indicted with Nelson Weaver for aggravated kidnaping, rape, theft, armed robbery and attempted murder, was tried separately in the circuit court of Cook County and found guilty of all the charges except that of armed robbery. Concurrent sentences of 100 to 125 years for aggravated kidnaping, 100 to 125 years for rape and 5 to 10 years for theft were imposed. He was sentenced to a term of 10 to 15 years for attempt and it was ordered that this sentence was to be consecutive to the other sentences.
The principal witness for the People was the victim, Mrs. Sally Heaton. She testified that after finishing work at the Kalamazoo office of the Michigan Bell Telephone Company at 11:00 P.M. on October 22, 1968, she went to the Capri Lounge in Kalamazoo where she planned to meet several co-workers who had been bowling that evening. Shortly after her arrival, she and her friends were joined at their table by Weaver and the defendant.
At 2:00 or 2:30 A.M. the defendant, Weaver, Mrs. Heaton and the other women decided to leave the lounge. Mrs. Heaton, who lived in Mattawan, Michigan, testified that she was asked by one of her friends, Mrs. Mildred Van Tyne, to drive the defendant and Weaver to Mattawan, where they were planning to stay with a friend. She said that she agreed reluctantly and only after Mrs. Van Tyne had assured her that there was no reason to be apprehensive of the two men.
When Mrs. Heaton reached Mattawan she drove down a dead-end street towards a trailer park on the instructions of Weaver and the defendant. When they reached the end of the street, Weaver produced a revolver and told her that he and the defendant were going to take her car. She was forced into the back seat by the defendant, who then struck her several times, forcibly removed her clothing and raped her. He and Weaver then told Mrs. Heaton that they were going to Chicago. The defendant and Weaver stopped at Benton Harbor, Michigan, where Mrs. Heaton was again raped, first by the defendant and then by Weaver. Later that morning, in the vicinity of Barrington Road and the Northwest Tollway in Cook County, Illinois, the victim was again raped by the defendant and Weaver. Weaver then attempted to strangle Mrs. Heaton. She fought back and he pulled her from the auto. She testified that Weaver said that "she was a tough, ornery bitch." The defendant replied: "Well, you know what has to be done." She said she asked the men to let her go that she had a husband and family whom she loved and that she wanted to go home to them. The men said, she testified, that they couldn't let her go; that they would rather shoot it out with the police. At that, she said, Weaver put the gun to the back of her head and shot her. She lost consciousness and later learned that she had been shot four times. She had been shot twice in the head and bullet fragments remained in her head. Another bullet entered the right side of her neck and passed completely through to the left side. She had also been shot in the right hand. She regained consciousness and found herself "all covered with straw and hay." She was about three-quarters of a mile from a highway and started toward it. Richard Ashby, a motorist, saw Mrs. Heaton stumbling through a field adjacent to the highway. He took her to the Northwest Community Hospital in Arlington Heights.
Dr. Frederick Volini, a pathologist and the director of laboratories at the Northwest Community Hospital, told the court and jury that vaginal swabs taken from Mrs. Heaton contained sperm.
Dorothy Lamb and Rita Roberts, who had been with the victim in the Capri Lounge, testified that when the party left the Capri Lounge they saw Weaver entering Mrs. Heaton's auto and Pearson standing at the passenger door.
The only defense evidence presented was the defendant's testimony, in which he denied the crime. He admitted that he had been at the Capri Lounge with Weaver on October 22, 1968, but he testified he was alone when he left the lounge. He said that he had phoned a friend named Dochany, who gave him a ride home. No further identification of this person was given.
At trial the defendant had available the advice of two attorneys, one from the public defender's office and one who was a private practitioner. Before trial, the defendant had expressed dissatisfaction with the public defender who had been appointed to represent him, and requested the court to appoint an attorney from the local bar association to represent him. The court then appointed the other attorney. Later, the defendant informed the court that he had decided to represent himself, and that he did not desire counsel. The court advised the defendant that he had a right to represent himself, but urged him to accept counsel. The defendant told the court that he would receive advice from counsel, but insisted on conducting his own defense. Before trial began, however, he changed his mind, and agreed to accept representation by both counsel, and was so represented until the prosecution had completed the direct examination of its final witness. Then the defendant again informed the court that he would conduct his own defense. The trial judge after unsuccessfully urging him to continue to be represented granted the defendant's request, but ordered the attorneys to remain in the courtroom to be able to advise the defendant.
The defendant first contends that he was improperly excluded from the courtroom during the instruction of the jury and during final arguments.
The record discloses that after the prosecution had completed the direct examination of its final witness, the defendant rose and began shouting vituperative and obscene epithets at the judge and jury. When this occurred the judge ordered the bailiff to escourt the jury from the courtroom. Then, after a brief colloquy between counsel and the court, the defendant was told by the court that he could not remain in the courtroom if he engaged in disruptive outbursts, and that counsel would be appointed to represent his interests in his absence. The defendant apologized for his behavior, and promised the trial judge that he would "* * * conduct [himself] like a gentleman from now on * * *."
When the trial resumed, the defendant immediately began another diatribe against the court, prosecutor and jury, again using obscene and insulting language. The court, after removing the jury and the defendant from the courtroom, announced that it had concluded that the defendant would continue his outbursts, and it directed the attorneys to assume active conduct of the defense. Too, on the motion of defense counsel, the court ordered a behavior clinic examination of the defendant. Dr. William Haines conducted the examination and reported his findings to the court before the trial resumed. The report stated that, "When asked why he [the defendant] broke out this morning, he replied it was a cold deliberate attempt to force the judge to give me a mistrial I [the defendant] have heard of it being done before." Dr. Haines' evaluation was that the defendant "knows the nature of the charge and is able to cooperate with his counsel."
Prior to the resumption of the trial a bailiff, Walter Makowski, testified that after the defendant had been taken from the courtroom following his second outburst, the defendant told him, "`[W]hen I get back into the courtroom, stay far away from me because I don't want to hurt you. * * * [W]hen I get out there, I am going to hurt somebody.'"
The attorneys for the defendant requested the court at the time of the second incident to exclude the defendant from the courtroom for the balance of the proceedings, and also asked the court to refuse to permit the defendant to testify. The trial court, however, permitted the defendant to testify but directed that he be secured, apparently by handcuffs, to the witness stand. Before he testified, the court again warned him several times that he would be removed if there were any further outbursts.
Although the court permitted the defendant to testify, it ordered that at the conclusion of his testimony the defendant would be excluded from the courtroom for the balance of the trial proceedings. The court expressly stated that its decision to exclude was grounded upon its own independent conclusion that the defendant would engage in further disruptive behavior and not in response to the motion of the defense counsel that the defendant be barred from the courtroom for the remainder of the proceedings.
Before testifying, the defendant announced "a blanket objection to these proceedings," and then he apologized to the jury saying "The jury only, I apologize to." He testified as has been described and without incident. After he had testified he was removed from the courtroom and final arguments were heard and the jury instructed. There was no ...