APPEAL fom the Circuit Court of Cook County; the Hon. JAMES D.
CROSSON, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
On 19 August 1968, Charles White, Junior, defendant-appellant (hereafter defendant), was indicted by the Cook County Grand Jury, under general number 68-3038, for the murder of Cedrick Gayles, his cousin, and the rape of and aggravated battery on Harriet Gayles, his aunt. Defendant pleaded not guilty. On 11 December 1969, after a jury trial, defendant was found not guilty of the murder, but guilty of the rape and of the aggravated battery. He was sentenced to a term of from fifteen years to forty-five for the rape. Although there was a finding of guilty on the aggravated battery, the trial judge did not sentence the defendant on that charge, since he felt that it arose from the same transaction as the rape. This is defendant's appeal from those convictions and that sentence.
Harriet Gayles, the victim, testified that on 5 August 1968 she was alone in her apartment at 7100 S. Stewart Avenue in Chicago with her infant daughter and her three-year-old son, Cedrick. Her other children had gone swimming, and her husband was at work. It was early in the evening and she was watching television when Charles White, Junior, her nephew and the defendant, arrived to retrieve some clothes which he had left the day before when he had gone on a picnic with her family and had stayed overnight. The witness stated that she offered the defendant some juice which was in the refrigerator. He walked to the kitchen, followed by her son, Cedrick. Defendant returned from the kitchen as Mrs. Gayles got up to bring some fruit to the kitchen. At this juncture, defendant jumped her, struck her with something in the neck, and threatened to kill her if she screamed. He then shoved her into the bedroom with a knife and forced her to undress. Defendant stabbed the witness between her breasts and attempted to have intercourse with her. He inserted his penis into her vagina but was apparently unable to complete the act of intercourse by achieving an ejaculation. The defendant then forced Mrs. Gayles into the hallway and again stabbed her in the chest. During the whole episode the defendant continually threatened to kill Mrs. Gayles. He forced her to sit on a couch, in the hallway, and, as he walked a few feet away, the witness stated that she ran for the back door. As she attempted to open the door, the defendant stabbed her in the arm and in the face. She was, however, able to open the door enough to allow her dog, a Doberman pinscher which had been locked out on the back porch, to get in. On her command the dog jumped defendant who then ran out the front door. Mrs. Gayles stated that she ran out the back door to a neighbor's apartment. She stated that she never saw her son Cedrick after he followed defendant into the kitchen when defendant went to get the juice. Cedrick was, in fact, found dead in the pantry off the kitchen with a rag stuffed in his mouth.
Mrs. Gayles stated that she did not remember a conversation with her sister, defendant's mother, in which she asked her sister if she would allow defendant to come and live with her and take care of the children so that she could go back to school.
Officer Ronald Crawford, a Chicago police officer, testified that he arrived at 7100 S. Stewart Avenue at 8:40 P.M. on 5 August 1968. He went to the apartment of a Mrs. Cole, a neighbor of Mrs. Gayles. There he observed Mrs. Gayles on the floor, bleeding from the face, chest, neck, and arms. He tried to enter her apartment but was initially prevented from doing so by a Doberman pinscher. Officer Crawford was finally able to gain entrance with the help of an unknown child who came up from the street and removed the dog. Inside the apartment Officer Crawford noticed what appeared to be, and what were later stipulated to be, bloodstains on a couch in the front hall and on the rear door of the apartment and the wall around it. He observed a small boy lying in the pantry with a rag protruding from his mouth.
Detective Gerald Slattery, a Chicago police officer, testified that he arrived at 7100 S. Stewart Avenue at 8:40 P.M. on 5 August 1968. He proceeded to Mrs. Gayles' apartment and met Officer Crawford who was already on the scene. The witness testified that he observed bloodstains on a couch and on the floor leading into the kitchen. He also observed blood on the mattress in the bedroom and on the bedroom floor. The witness stated that he too observed the lifeless body of Cedrick Gayles with a towel stuffed in his mouth. Detective Slattery did not see Mrs. Gayles at the scene of the incident, but did interview her later that evening in St. Bernard's hospital. At that time he observed wounds on the victim's arms and face; other apparent wounds were not visible since they had already been treated and covered. Officer Slattery stated that he went looking for defendant in various places in the company of defendant's father and defendant's cousin (an older son of Harriet Gayles). One of these locations was a Gulf Gas Station at which defendant was employed.
De'Armond Carter, a Chicago police officer, testified that, while on patrol in Chicago's Jackson Park on 7 August 1968 at approximately 1:30 A.M., he observed defendant sleeping on the ground. He and his partner, Bernard Ward, warned defendant that the park was closed and told him to leave. Later that same morning at approximately 3:45 A.M., Officer Carter observed defendant sleeping at another location in the park. Officer Carter stated that he told defendant to go home, but defendant responded that he was going to go to a filling station. The officers then drove defendant to a Gulf Gas Station at 64th Street and Stony Island Avenue. Apparently after a conversation with the attendant at the Gulf Station, Officer Carter and his partner placed defendant under arrest. A search of defendant's person revealed a black-handled pocket knife.
Although the knife was not available at the trial (since it had been inadvertently destroyed), Marian Caporusso, a microanalyst for the Chicago police department, testified that she had examined it. She described the instrument and stated that she had found blood on the blades, but was not able to say whether it was human blood since the knife did not present an adequate sample.
Juanita White, defendant's mother, and the victim's sister, testified on her son's behalf. She stated that defendant stayed at her sister's house on the night of 4 August 1968 after a family picnic. On 5 August, he returned home from work at approximately 5:10 P.M. Mrs. White stated that her son then told her that he was going to go over to her sister's house that evening. Initially, she told him that he could not go, but relented when he stated that he was going there in order to retrieve some belongings he left there after the picnic the day before. The witness stated that she told her son, however, that she felt that he was going there too much, and, in the future, his visits would be limited to the weekends. She stated that he was working during the week and she wanted him to stay home at night. Mrs. White stated that her son returned home at approximately 9:00 P.M. that evening and went to the store for her. She did not notice any blood on him or on his clothes. After his return from the store, he took his radio and went out. He did not sleep at home that night.
Mrs. White stated that her sister's husband was not living with her sister. On 29 or 30 July 1968, her sister had asked Mrs. White if defendant could come and live at the sister's house in order to take care of her children so she could go back to school. Mrs. White stated that she had refused her sister's request.
Defendant testified in his own behalf. He stated that he went to his aunt's house on 5 August 1968 to retrieve some belongings he had left there the day before. He and his aunt had a conversation while they watched television and drank some juice. He asked his aunt if she wanted to "have sex" with him. He testified that they had had relations on two previous occasions. Defendant stated that his aunt was hesitant at first because she had just had relations with her husband and because she was afraid somebody might come in. After they had undressed, she dropped a cigarette on defendant. She told him it was an accident and started to laugh. According to defendant, as he then attempted to get up, she pulled him back down and he hit her. As he attempted to put on his clothes, Mrs. Gayles went to the kitchen, returning with a broom. She swung at him with the broom; he grabbed it from her and struck her with it, knocking her down. She returned to the kitchen. Defendant stated that he had gotten dressed and was going out the door when his aunt attacked him with a steak knife, cutting him on the lip. At this juncture, defendant admitted that he pulled his own pocket knife and stabbed his aunt "I don't know how many times." As she fell to the couch, he hit her with his fist. She ran to the back door and he exited through the front door.
Defendant stated that he then returned home, went to the store for his mother, and spent the night at a friend's house. The next day he purchased some new clothes and put the clothes that he had worn to his aunt's house in a locker because he had "messed them up." That night he went to the park. He substantiated Officer Carter's testimony concerning the arrest.
In rebuttal Detective Slattery stated that he had looked for knives in the apartment but did not find any where they would not ordinarily have been.
• 1 Defendant initially contends that Officers Carter and Ward lacked probable cause to arrest him at the gas station and that, therefore, the seizure of the pocket knife was unlawful and the testimony relating to it should not have been admitted. We think that it is not necessary to decide the propriety of the arrest, since, even if it were improper, the error in admitting the testimony about the knife was harmless. The defense in this case was that the pocket knife had been used in self-defense. Defendant admitted stabbing his aunt with his pocket knife after, he claimed, she had stabbed him on the lip with a steak knife. This admission certainly obviated any possible error in the admission of testimony relating to a pocket knife found on the defendant at the time of his arrest. In fact, even if defendant had chosen to remain silent and not to assert the theory of self-defense, the testimony concerning his possession of the pocket knife at the time of his arrest could not have substantially prejudiced his case. The knife itself was not produced; therefore, the victim could not identify it as the knife used in the aggravated battery. The microanalyst, while finding blood on the knife, could not identify it as human blood, let alone the blood of the victim. As to the aggravated battery, this meager knife testimony is insubstantial in the light of the positive testimony of the victim, the exhibition of her scars, and the testimony of defendant's mother as to his intended whereabouts at the time of the assault. We conclude that the error, if any, in admitting testimony concerning the knife was harmless. We note also that defendant was not sentenced for the aggravated battery, which was the offense to which the knife testimony was relevant.
Defendant's next contention is that he was seriously prejudiced by alleged undue participation by the trial judge in the interrogation of witnesses. Defendant alleges that, in and by his participation, the trial judge manifested to the jury a belief in defendant's guilt, emphasized the State's evidence, and discredited a key defense witness. Defendant urges error in each of five instances in which the trial judge allegedly intruded. We will examine each instance.
• 2 Defendant contends that the trial judge on two occasions had the victim repeat certain parts of her testimony, and thereby highlighted that testimony for the jury. The transcript of the first occasion reads as follows:
"Prosecutor: After he did that, what happened?
Mrs. Gayles: He started sweating, perspiration was running, and then he said to get up, he was going to kill me. And I begged for the children again.
Defense Attorney: Objection, Your Honor, to the word begged.
The Court: The objection is overruled. This was all at the same time immediately ...