APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was found guilty of rape and deviate sexual assault and sentenced concurrently to a term of 25 to 50 years on each conviction. Defendant appeals and alleges he was denied a fair trial in that (1) the prosecution was permitted to impeach defendant by the use of an oral statement not referred to in response to a discovery motion; (2) that prejudicial testimony, indicating that the victim's family moved because of fear of defendant, was admitted into evidence; (3) that the prosecution improperly suggested that the defendant committed crimes unrelated to the one at bar; (4) that evidence was erroneously adduced to establish the prior virginity of the victim; and (5) that during closing argument, the prosecutor improperly argued the absence of alibi witnesses, accused defense counsel of "chicanery," and attacked defendant with an inflammatory characterization. Alternatively, defendant raises contentions regarding the imposition of an excessive sentence and that the punishment for deviate sexual assault exceeded the statutory maximum.
The evidence reveals that at 7 A.M. on October 6, 1970, the complaining witness, a 16-year-old student, left her 16th-floor apartment in a Chicago Housing Authority project to attend high school. While alighting from the elevator on the first floor, she encountered the defendant, Shannon Stephens, who forcibly shoved her back into the elevator, and, by pushing the stop button, caused the elevator to be immobilized between floors. The assailant then told the victim to disrobe. While removing her footwear, the victim found an opportunity to hit defendant on the head with the heel of her shoe. The assailant grabbed and threatened complainant, and then forcibly raped her and subjected her to an act of anal intercourse.
After the attack, which lasted for approximately 30 minutes under two bright overhead lights, the assailant returned the elevator to the first floor where he departed. The victim made her way back to her apartment and told her mother of the attack. She appeared in disarray, dirty, crying, and her undergarments were saturated with blood. After a douche, she was examined at Michael Reese Hospital where it was determined that she suffered lacerations of the hymen and perineum.
Five days later complainant picked defendant from a group of photographs, an arrest warrant was issued, and within a few days defendant was apprehended and identified. At the time of arrest, it was observed that defendant was suffering from a recent laceration on the head.
Defendant, his mother, and his sister interposed an alibi defense.
Defendant's initial contention is that the court erroneously permitted the prosecution to impeach defendant by an oral statement not referred to in the State's answer to defendant's discovery motion. In response to defendant's discovery request for "[a] list of witnesses to any oral statement that the defendant may have made," the State answered "[n]o statements." At trial, during the State's case in chief, the victim testified that she hit her assailant on the head with a shoe; Officers Jones and McCall also testified that they observed a fresh cranial wound on defendant at the time of arrest. Defendant testified and on cross-examination denied having a head injury at the time in question and further denied ever relating to police the circumstances of such injury. In rebuttal, Officer McCall testified that in response to a question asked at the time of arrest, defendant stated his head wound had been caused by a bottle thrown from the upper floor of the "project."
This rebuttal testimony, defendant contends, was inadmissible owing to the failure of the State to include it in the discovery answer. In support of this contention, defendant relies on People v. Mwathery, 103 Ill. App.2d 114, 243 N.E.2d 429, wherein the court stated it was error for the State to fail to honor an agreement not to comment on a statement made by a co-defendant.
• 1 We initially note that at the time the State filed its answer to the discovery motion, January 22, 1971, it was under no obligation to furnish defendant with information regarding admissions or statements. (See People v. Hall, 83 Ill. App.2d 402, 227 N.E.2d 773; Ill. Rev. Stat. 1969, ch. 38, par. 114-10.) Furthermore, the Mwathery case is inapposite in that the present record reveals the absence of any agreement to withhold statements. Therefore, no error was committed by the introduction of the impeaching statement.
We also reject defendant's alternative argument that the trial court's refusal on the day of trial, November 30, 1971, to grant a continuance to enable defendant to file a new discovery motion under Supreme Court Rule 412(a)(ii) (effective October 1, 1971) was prejudicial. *fn1 Although defendant had 2 months in which to file an amended or supplementary motion to produce under the new Supreme Court Rule, he failed to avail himself of the opportunity. Additionally, the trial judge assured defense counsel that a continuance would be granted after voir dire examination if defendant requested the same to study discovery matters; again, defendant failed to avail himself of the opportunity. Under these circumstances, we conclude that not only was the trial judge acting within his discretional authority in the first instance (People v. Davis, 45 Ill.2d 514, 261 N.E.2d 314), but that defendant waived any objection by his failure to take advantage of the offered mid-trial continuance.
Defendant next contends that the trial court erred in admitting certain testimony. First, defendant complains of the following colloquy between Mrs. Reynolds, the mother of complainant, and the prosecutor on re-direct examination:
"PROSECUTOR: One question, Mrs. Reynolds. Did you move from that building since that time?
MRS. REYNOLDS: Yes, I have.
DEFENSE COUNSEL: Objection.
MRS. REYNOLDS: I had to, because she was afraid.
PROSECUTOR: Nothing further."
• 2 Citing People v. Herbert, 361 Ill. 64, 196 N.E. 821, defendant argues that the inference to be drawn from the above colloquy is that the complaining witness was in fear for her safety by reason of her activity in prosecuting the defendant. In Herbert, the court held it prejudicial error to admit testimony that a police guard was placed around the house of the prosecuting witness just prior to trial in that it tended to create in the mind of the jury the impression that the witness was intimidated with threats of violence by the defendant. In the present case, aside from the consideration that the witness' answer was non-responsive and defense counsel failed to obtain a ruling on his objection, we think the testimony of Mrs. Reynolds sustains multiple inferences unrelated to a specific fear of defendant. Complainant's emotional reaction could emanate from an apprehensiveness of the neighborhood in general, or more particularly, from a fear of residing in a building where the use of elevators is a necessity. Therefore, the Herbert case is not controlling and we hold defendant's contention to be without merit.
Defendant next assigns as error the following testimony of Officer Jones elicited on redirect examination which, defendant argues, suggests that he committed other crimes ...