APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
In a bench trial defendant was convicted of rape and armed robbery. He received two concurrent terms of five to 15 years.
On appeal he contends that: (1) his waiver of a jury was not made knowingly and understandingly; (2) prejudicial hearsay deprived him of a fair trial; (3) he was not proven guilty beyond a reasonable doubt because the complaining witness lacked credibility and her story was improbable; and (4) it was error to convict and sentence him on both the rape and armed robbery charges where the force used in each offense was identical.
The convictions arose from an alleged rape and robbery of Mrs. Addie Smith on December 13, 1970. These offenses occurred in an elevator of a public housing project at 1847 West Lake Street, Chicago.
Mrs. Addie Smith, for the State: On December 13, 1970, at about 6:00 A.M., she and her companion, Fred Frazier, had just left the Carver Hotel. She was in her car. Frazier had started the engine and then gotten out to scrape ice off of a window. As Frazier was scraping the window, two men ran up to the car. Frazier told her to lock the door of the car. A man, later identified by her as defendant, approached the car and told her to get out. Meanwhile the other assailant was holding Frazier at gun point. She refused to leave the car until the accomplice brought Frazier around to the front of the car, still at gun point. Defendant then grabbed her by the arm, pulled her out of the car and at gun point took her across the parking lot through an adjoining vacant lot and into a housing project at 1847 West Lake Street. The three then entered the elevator in the project and one of the assailants stopped the elevator between floors. They ordered her to undress and kept her at gun point at all times. As the assailants were going through her coat pockets she tried to start the elevator. Defendant then struck her and told her not to try such a move again. She completed undressing and defendant then raped her. After defendant had intercourse with her the other assailant demanded that she perform an act of oral intercourse but she refused. The accomplice then raped her. While she dressed, defendant and his accomplice went through her purse, removed $120 and also took her watch. The assailants then started the elevator, got out at the top floor and told her to remain in the elevator.
She rode the elevator to the main floor and walked to the Carver Hotel about a block away. She saw no one on the street. The hotel manager, who was coming out of the hotel to move her car, asked if she was the girl they took from her boyfriend. She answered, "Yes" and he rushed her into the hotel. She was crying and hysterical. She told the lady clerk what had happened and asked her to call the police. "By that time" Frazier, two policemen and security guards came in. She told them what had happened and gave a description of the two assailants.
Then Officer Ed Nakutis took her to the Cook County Hospital where Detective Booker Porter showed her a stack of photographs and she picked out defendant's photograph. She was in the elevator for about 45 minutes and a bulb in the ceiling illuminated the elevator.
She was married, had spent the previous night with Mr. Frazier in the Carver Hotel and had had sexual intercourse with him at about 11:00 P.M. She was employed by Sara Lee for a year and a half.
Fred Frazier, for the State: He substantially corroborated Mrs. Smith's testimony as to the events at the car leading to her being forcibly taken away. He added that after the assailants took Mrs. Smith from the car, he was told by defendant's accomplice not to follow or he would be shot. He returned to the hotel, instructed the desk clerk to call the police and then drove around the vicinity with a hotel security guard in search of Mrs. Smith. When she returned to the hotel, he and the security guard were notified by radio and returned to the hotel. When he returned to the hotel, Mrs. Smith was crying. The prosecutor asked him what Mrs. Smith said and he answered:
"I asked her what happened. She told me, `They took me in the project.' They took her up in the project, and jammed the elevator and had raped her up in it. I asked her what she heard and she said she didn't know."
Officer Nakutis was also present at this time. Frazier went to the Cook County Hospital when the police took her there. While there, Detective Porter showed him a stack of 20 to 25 photographs and asked if he could identify the assailants. He picked the photograph of the defendant.
Officer Ed Nakutis, for the State: On December 13, 1970, at about 6:00 A.M., he went to the Carver Hotel. He met Mr. Frazier who informed him that Mrs. Smith had been taken away by two men. He received a description of the offenders and Mrs. Smith and then proceeded with his partner to cruise the area in search of Mrs. Smith. He and his partner returned to the hotel about 45 minutes later and found Mrs. Smith at the hotel desk. She was crying and shaking. She told him that two male Negroes had taken her into a housing project and raped her in the elevator. She gave a description of the two males. He then took Mrs. Smith to the hospital. The prosecutor then asked him if Mrs. Smith had made any other remarks. Defense counsel objected, contending that any conversation would be hearsay. The trial court overruled the objection and the witness testified in response:
"Well, I had asked Mrs. Smith what had happened and she said she had been raped. And I asked her how and where and at what time and she says that the two offenders had taken her across what would be like a vacant lot that runs next to the parking lot and into this project, housing project building, and they had stopped the elevator between floors and made her ...