APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE BURKE delivered the opinion of the court:
James Barksdale was found guilty after a jury trial of the crimes of rape, deviate sexual assault and aggravated kidnapping. (Ill. Rev. Stat. 1971, ch. 38, pars. 10-2, 11-1 and 11-3.) He was sentenced to concurrent prison terms of 50 to 100 years for rape, 50 to 100 years for aggravated kidnapping and 10 to 14 years for deviate sexual assault. Defendant appeals, arguing: (1) that the trial court improperly refused to rule upon his motion to exclude evidence of a prior conviction until he had testified; (2) that the evidence was insufficient to prove venue beyond a reasonable doubt; (3) that the trial court erred in permitting the introduction of rebuttal evidence which showed the commission of another crime; (4) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (5) that his motion to suppress evidence obtained as the result of an illegal arrest was improperly denied; and (6) that the closing argument of the prosecutor was improper and prejudicial.
The complainant testified that on June 23, 1971, at approximately 4 A.M., she was walking down Sheridan Road in Chicago approximately one block from her house when a car passed and a man, whom she later identified as the defendant, shouted to her. She continued to walk and the car pulled up alongside. The defendant jumped out of the passenger side of the vehicle, hit her over the head and dragged her into the car. Defendant pushed her onto the floor of the back seat, put what appeared to be a gun to her head and told her to keep quiet or he would kill her. The defendant then got into the car and started driving. While he drove, defendant kept his hand on the complainant's upper thigh, telling her not to move or he would kill her. At approximately 6:10 A.M., the defendant stopped the car in an open area which the complainant could not identify. Defendant went to the trunk of the vehicle and removed a cord which he used to tie the complainant's hands behind her back. Defendant then dragged the complainant from the car and threw her down on a sleeping bag which he had stretched out. While the complainant was sitting on the sleeping bag, the defendant was directly in front of her. Defendant ripped open the complainant's blouse, removed her bra and tore it in half. Defendant then removed her pants. Defendant ordered her to perform an act of oral copulation upon him and she complied. Defendant then struck her above the right breast and on the side of the head, and threatened to beat her more severely. Defendant then performed an act of oral copulation upon her. Thereafter, defendant untied her hands and allowed her to put on her clothing.
Defendant took the complainant back to the car and placed her in the rear seat. A short time later, he ordered her to remove her clothing. She complied and the defendant forced her to have intercourse with him. Defendant ordered her to get down on her forearms and knees and had anal intercourse with her. Defendant then ordered the complainant to get dressed and to lie down on the floor of the car. Defendant started driving and told the complainant not to report the incident to the police. The complainant testified that defendant dropped her off in an alley and told her not to move for 10 minutes. After the defendant left, the complainant went to a nearby garage where she told two men what had occurred. The police were called and they took her to Holy Cross Hospital.
The complainant described her attacker as a male Negro, 5 feet 10 inches tall, medium brown complexion, short-cropped black hair, brown eyes, 150 to 175 pounds, 25 to 26 years of age, ear-length sideburns, wearing wire-rimmed glasses, a short-sleeved knit shirt, corduroy slacks, brown sandals, black socks and red underwear. Her attacker had little pockmarks on his face below the sideburns. He did not have a moustache. The complainant described the defendant's car as a black, two-door Chevrolet Impala hardtop with black interior.
The complainant testified that on August 3, 1971, she attended a lineup at the Evanston Police Station with Chicago Police Investigator Bauer. She viewed a lineup of five men and identified the defendant as the man who had attacked her.
Stanley Szezesny, a Chicago police officer, testified that on June 23, 1971, at 8:20 A.M., pursuant to a radio message, he proceeded to the Western Auto Rebuilt Company, 3343 South Columbus, Chicago, Illinois. There he interviewed the complainant. Officer Szezesny testified that the complainant had a bruise on the upper portion of her forehead, her hair was disarranged, her eyes were red as if she had been crying, and her clothing was soiled. He transported the complainant to Holy Cross Hospital where she was examined.
Dr. Nathan Paparo testified that on June 23, 1971, he examined the complainant in the emergency room of Holy Cross Hospital. A vaginal smear was taken and tests proved that it was positive for the presence of spermatozoa. The complainant had a contusion about her forehead and there were multiple contusions on her breast, buttocks and lower extremities. She was extremely emotional, apprehensive and distraught.
Gerald Kirkham, a detective with the Evanston Police Department, testified that on August 2, 1971, at approximately 10:45 P.M. he observed the defendant driving a 1968 Chevrolet Impala two-door, black with a black vinyl top, in the 1800 block of Sheridan Road in Evanston, Illinois. He followed the vehicle until the defendant parked in the Northwestern University parking lot and proceeded onto the campus. Detective Kirkham testified that he walked up to defendant's vehicle and observed an AM-FM cassette radio in the back seat. He then returned to his car and called for his supervisor, Sergeant Schockweiler, who arrived at the scene within 5 minutes. A short time later defendant returned to his vehicle. Detective Kirkham and Sergeant Schockweiler approached the defendant and identified themselves as police officers. Defendant produced a driver's license and at the officers' request, opened the trunk of his vehicle. Defendant was placed under arrest and Sergeant Schockweiler searched the interior of defendant's car where he found a chrome-plated, .32-caliber, automatic handgun underneath the driver's side of the front seat; the weapon was loaded with four live .32-caliber cartridges.
Thomas Hennegan, a detective for the Evanston Police Department, testified that after defendant's arrest, he recovered a pair of wire-rimmed glasses in a brief case in the rear seat of defendant's vehicle.
Kathy Nelson and Maynard Moore testified for the defense that during June and July of 1971 they knew the defendant, and he always wore a moustache. Kathy Nelson testified that the defendant had always had a medium-length natural haircut.
The State then presented a rebuttal witness who testified that 2 weeks after the complaining witness was raped, on July 8, 1971, at approximately 11 P.M., she was hitchhiking in the area of Fargo and Sheridan Road, Chicago, Illinois. She received a ride from the defendant who was driving a two-door, black Impala. She remained in defendant's car for 30 to 40 minutes until the car came to rest on a dirt road with trees on both sides. She remained at that location for approximately 4 hours. During that time, it was dark outside for 3 hours and light outside for 1 hour. She described the man she later identified as the defendant as a male Negro, 5 feet 10 inches, 170 pounds, short Afro, small sideburns, pockmarks on his face and wearing gold-framed glasses. At that time, defendant was not wearing a moustache. The witness testified that the next time she saw defendant was on August 3, 1971, at the Evanston Police Station. At that time defendant was wearing a moustache.
On cross-examination, the State's rebuttal witness testified that prior to entering defendant's car, she had consumed half a bottle of wine. She testified that after the incident, she told her father what had occurred and the police were then called. When she first talked to the police, she guessed that the car was a dark green Skylark. She stated that she had several conversations with police officers during which she described the defendant and the car he was driving. In response to questioning by defense counsel, she stated that she had previously testified in court as to what had occurred on July 8, 1971. The witness stated that she originally told the police that the defendant's car was a four-door hardtop, dark color, possibly green, with a squeaky passenger door.
On re-direct examination, the State's rebuttal witness testified that during the incident defendant had a chrome-plated revolver in his hand.
In surrebuttal, the defense called Chicago Police Investigator Joseph Bauer who testified that he was assigned the investigation of the incident involving the State's rebuttal witness. At that time she told him that on July 8, 1971, she was hitchhiking when she was picked up by a driver in a motor vehicle. She described the car the offender was driving as a later model, two-door hardtop, green interior and exterior, floor console, bucket seats, electric clock and stereo. On cross-examination Investigator Bauer testified that to get a description of the vehicle, he took the witness to a parking lot and showed her a number of vehicles of different makes and models. At that time she indicated that one car was similar to the car the offender was driving. The car she identified was dark green in color.
Defendant's first contention is that it was error for the trial court to refuse to rule on his motion to exclude evidence of his prior convictions for rape, made pursuant to People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, until after he had testified. At the close of the State's case and again after two defense witnesses had testified, defendant moved to exclude evidence of his prior convictions for the crime of rape if he were to testify. The trial court, on each occasion, refused to rule on defendant's motions, stating that it was premature and that the trial court would rule only ...