APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
J. GILIBERTO, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant was charged with rape, burglary with intent to commit rape and burglary with intent to commit theft. After a jury trial, defendant was found guilty of rape and burglary with intent to commit rape, and was sentenced to concurrent terms of 10 to 15 years. Defendant was found not guilty of the charge of burglary with the intent to commit theft. On appeal defendant contends that the trial court erred in admitting his in-custodial responses as rebuttal evidence; that the court erred in admitting into evidence certain out-of-court statements of the complaining witness; that certain remarks of the prosecutor and actions of the trial judge deprived defendant of a fair trial; that he was not proved guilty beyond a reasonable doubt; and finally, that the sentences imposed were excessive.
At trial the victim testified that on September 16, 1970 defendant committed forcible intercourse with her in her ground floor apartment located in the City of Chicago. Earlier that evening, while a neighbor, Mrs. Patricia Longmire, was visiting, defendant had come to the victim's apartment looking for Philip O'Bannon, the victim's boyfriend. Defendant departed after learning that O'Bannon was not there. The victim testified that at this time defendant had a "goofy" look in his eyes, and spoke more slowly than usual. The victim was acquainted with defendant, but at this time knew him only by his first name, "Michael." Defendant had visited the victim's apartment several times with O'Bannon, and on several occasions, including the previous evening, had come to the apartment looking for O'Bannon.
After Mrs. Longmire left, the victim and her three-year-old daughter went to bed about 10:30 P.M. They shared the same bed in the one bedroom apartment. About an hour later, the victim was awakened by a loud crash at the front door. She saw defendant standing over her bed. He held a knife against her neck, and threatened to harm her daughter if she resisted. He ripped off her night clothes, and had intercourse with her. Defendant then asked for her money. When she did not reply, he asked if Philip had the money, and she stated that he did. Defendant threatened to harm her if she told anyone what had happened, and left the apartment.
After defendant left, the victim wrapped her daughter in a sheet, and ran across the street to Mrs. Longmire's apartment. She told the latter that Michael stated that he had a knife and that he had raped her. The police were summoned, and the victim was taken to the Roseland Hospital.
Although the lights were out during the commission of the crime, the victim testified that she could see defendant plainly. The windows in the apartment were long and had thin shades. The light from the street outside and from the I.C. station fully illuminated the room. During the commission of the crime, the victim could see the defendant's facial characteristics plainly. He had a "natural" haircut, and his hair was uncombed and unkempt. Defendant was wearing the same dark sweatshirt, dark pants and gym shoes that he had worn earlier in the evening. The victim further testified that Philip O'Bannon sometimes stayed at her apartment all night, and that he had clothes at the apartment.
Patricia Longmire testified that she noted that the defendant had come to the victim's apartment about 9:30 P.M. on the evening in question looking for Philip O'Bannon. He was wearing dark clothes and gym shoes. At about 11:45 P.M., the victim, visibly upset and carrying her daughter, came to the Longmire apartment. She immediately stated to Mrs. Longmire, "Michael kicked open the door and raped me." In response to a question, the victim also told Mrs. Longmire that the defendant said he had a knife and threatened to harm her.
Philip O'Bannon testified that he was acquainted with the defendant for several months prior to the incident in question. Defendant had visited the victim's apartment with O'Bannon on several occasions. O'Bannon saw the victim a few hours after the incident and noticed scratches on her neck. Mrs. Longmire also noticed these scratches, but Officer John Efantis of the Chicago Police Department, the first officer at the scene, did not. O'Bannon, Mrs. Longmire and Officer Efantis all testified that even with the lights extinguished and the shades drawn in the victim's apartment, enough light came in from sources outside the apartment to see and observe plainly.
Sergeant Richard O'Connell of the Chicago Police Department, final witness for the State, testified that on September 19, 1970, he observed the door to the victim's apartment to be cracked and ajar. When Sergeant O'Connell started to relate a conversation he had with defendant at the police station on September 21, 1970 in which defendant had made certain exculpatory statements, defense counsel objected. At a conference outside the presence of the jury, it developed that, despite defendant's pre-trial motion for the production of all statements of the defendant, both written and oral, in the State's possession, the statements made to Sergeant O'Connell had not been furnished to the defense. At the conference, O'Connell stated that he was testifying from personal notes made by him at the time of the conversations but not included in the official police file. The prosecutor represented to the court that he was aware of the conversations prior to putting O'Connell on the stand, but did not know of them prior to trial. The trial court sustained defendant's objection, and ruled that, because of the surprise to the defense, he would not permit Sergeant O'Connell to testify in the case in chief as to the conversations had with defendant. The court ordered the prosecution to furnish O'Connell's notes to the defense, and stated that, if he determined that the State had not deliberately concealed the statements, he would permit rebuttal testimony concerning the statements. The trial court instructed the jury to disregard any testimony which O'Connell had already given concerning statements made by the defendant.
The defense offered testimony of an alibi. Isaac Thompson, a friend of defendant's, testified that on the evening in question he was with defendant. Defendant came to Thompson's apartment at 8:15 P.M., and at 8:30 P.M. they drove to the area of 47th and Indiana. They remained in that vicinity until about 10:00 P.M., when defendant returned Thompson to his home. They parted company about 10:30 P.M.
Sandra Alexander, defendant's fourteen-year-old sister, testified that on the evening in question, she observed the defendant return home about 10:30 P.M. Defendant left again, but returned in 15 minutes. He admonished Sandra for being up so late. Defendant then listened to records, and she noticed that the light went out in his room about 11:40 P.M.
Defendant testified that he was with Isaac Thompson from about 8:30 P.M. until 10:30 P.M. in the vicinity of 47th and Indiana. Defendant arrived home about 10:40 P.M., and left shortly thereafter to get something to eat. He returned within 15 minutes, and spoke to his mother and sister. He did not leave his apartment again that evening. He admitted that these were not the same details he had given the police when originally questioned. Defendant, Isaac Thompson and Sandra Alexander all testified that on the evening in question defendant was wearing khaki pants, a light green jacket and "steel mill" boots, not gym shoes. Defendant stated that he was acquainted with the victim, but had not raped her and had not been at her apartment on the evening in question.
It was stipulated that the vaginal smear taken of the victim at the Roseland Hospital was negative for sperm. It was also stipulated that defendant was 22 years old.
The trial judge found that the prosecution had not wilfully concealed Sergeant O'Connell's conversations with defendant. The court also held that, since the element of surprise had been removed, the testimony of Sergeant O'Connell as to the conversations would be permitted on rebuttal. Sergeant O'Connell testified in rebuttal that defendant told him that he had returned home at about 11:15 P.M. after an evening with Isaac Thompson. He watched television until he ...