APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of rape, deviate sexual assault, aggravated battery and aggravated battery with a deadly weapon in violation of sections 11-1(a), 11-3, 12-4, and 12-4(b) (1) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 11-1(a), 11-3, 12-4 and 12-4(b)(1)). He was sentenced to concurrent terms of 8 to 24 years for rape and deviate sexual assault. No sentences were imposed on the battery charges.
On appeal, defendant contends: (1) that he was not proved guilty beyond a reasonable doubt; (2) that his due process rights were violated because he did not receive a fair trial, (3) that the trial court erred in entering judgment on the battery charges; and (4) that the sentences imposed were excessive.
The following pertinent evidence was adduced at trial.
Joyce Asberry, the complaining witness
On the afternoon of June 24, 1972, while she was picking up a pair of suede boots at a shoe store, she met defendant who identified himself as "DeShon." After talking to him for about an hour and giving him her phone number, she left. At about 9 P.M., he called and asked her out. After a brief conversation, she asked him to call back. About 10 P.M. he called again but she did not go out with him that evening.
At 8 P.M. on June 26, 1972, defendant again called and asked if she wanted to go for a 15-minute ride to listen to some tapes. She asked him to call back later. At 10:30 P.M. defendant called to renew his offer. This time she accepted. He told her he would meet her downstairs and described his car as a green Mustang, raised up in the back like a racing car, with primer on the front.
When defendant arrived, he was driving a green Mustang just as he had described. It had a black interior, a stick shift with a white knob, a tape deck under the driver's side of the dash board, and a sticker on the back window. It had primer on it and was three different colors in the front.
At her request, defendant drove her to visit a friend at 79th and Aberdeen and waited for her in the car. When she returned they drove toward the lake. As they listened to a tape of Issac Hayes, defendant mentioned that he worked for United Parcel training drivers and she talked about school. They parked on the lakefront at 43rd Street. Defendant asked her to walk with him by the lake; but when she refused, defendant went alone.
Defendant sat in the driver's seat when he returned. She was sitting in the front passenger's seat. Defendant put his arm around her and kissed her. For a moment he took his arm away, but he put his arm around her again as he kissed her for a second time. Defendant then said: "Strip or I'll kill you." She then discovered that defendant was holding a knife to her neck. He repeated his demand to strip.
She put her right hand between the knife and her throat. As she pushed the knife away, she cut her hand. At the same time, with her left hand she opened the car door, and dove out of the car screaming. He held onto her jacket and followed her out of the car. He then struck her many times with a stone and told her: "Be quiet or I'll kill you. I have done this before and I will do it again. Be quiet or I'll kill you."
He ripped off her pants, tore her body shirt, and pulled down her panties and panty hose. He inserted his penis into her vagina for a moment, and then put it in her mouth, saying: "I'll kill you if you bite it." He then re-entered her vagina with his penis and climaxed. Afterwards he got up, told her to put on her pants and to get her shoes which he said were in front of the car. He then started the car. She put on her pants, gathered her clothes and shoes which were at the side of the car, and ran from the scene. He pursued her in the car. As she ran away from the lake, she met two boys on bicycles who helped her to a phone booth. Defendant drove away.
When the police arrived, they took her to the hospital where she received over 100 stitches and where they took a pap smear. She told the officers that her assailant was dark, 5'7" tall, clean-shaven, and wearing a nice-size natural. She also told them his name was "DeShon" and she described his car.
On July 10, 1972, she attended a lineup and identified defendant as her assailant. Afterwards she identified the car.
He was employed at Joe's Shoe Shine Parlor on June 24, 1972. A customer, who had come to the store to have his shoes shined and his suede shoes cleaned, spoke to Joyce Asberry. He was 6 feet tall, clean-shaven and was wearing a full natural. Miller identified defendant as that customer and observed defendant's car two or three times while defendant was in the store. The car was a green Mustang having several colors in front, a black interior, and a tape deck. On direct examination, he stated that the photograph of defendant's car showed the tape deck; but on cross-examination, admitted that it did not. A man defendant had identified as his brother was waiting in the car.
He is a Chicago Police Officer. In the early morning hours of June 27, 1972, he and his partner responded to a radio call regarding a rape. Although he did not see anyone with a bike, they found Joyce Asberry near 47th Street and the Outer Drive. Both her head and her hand were bleeding and she complained of having been raped. As they took her to the hospital, she gave them a description of her assailant and his car. She described him as a male Negro, about 22 years old and about 5'7" or 5'8" tall who weighed 160 to 170 pounds, wore a natural, and was clean-shaven except for a beard. Although he did not ...