APPEAL from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his convictions entered upon jury verdicts, and the concurrent sentences imposed for kidnapping (3 to 9 years), intimidation (3 to 9 years), and armed violence (1 to 3 years). No sentence was imposed upon a conviction for battery. The jury returned verdicts of not guilty upon charges of attempted murder, aggravated kidnapping and aggravated battery.
There is no issue of the identity of the defendant, or that he participated in the series of events continuing through approximately 3 hours. There is a conflict of testimony as to the quality and nature of the actions of the parties. The prosecuting witness, aged 19, testified to returning to her university campus on June 29, 1973, to attend a concert in the evening and to visit friends. Shortly before 11 p.m. she was walking from her lodging to the residence of a friend and a car stopped in the street and a man, later identified as defendant, asked direction to an address unknown to the witness. He drove on when another car stopped behind his car as it stood in the street. The witness walked on and shortly came to the same car stopped at the curb. Defendant stepped up to her with a gun and required her to get into the car. They drove around over some time and ultimately came to a frame building, subsequently identified by the prosecuting witness. In summary, she was taken to a room in a second floor apartment, partially blindfolded and gagged, and her hands were successively tied with rope and taped behind her. Her blouse and brassiere were cut away with scissors. For a period of time she was tied to brackets in the wall during which time defendant alternatively caressed her stomach and struck her severe blows to the stomach. She was then placed on the bed while her hands and feet were tied and she was gagged and blindfolded. Defendant sat astride the witness first placing a pillow over her face and pressing down on it, and later he placed gauze over her neck and drew it very tight to prevent her breathing. During this episode the bed broke or came down on one side. Defendant thereafter draped the blouse over the witness, took her downstairs blindfolded and with her hands tied and drove to a place where she was left under a tree. The witness freed herself and walked to the apartment of the friend who shortly called the police. There is testimony that as they were leaving, or while the witness was being taken away, defendant told her that he knew her name and where she lived and that he would "get her" if she reported the acts to the authorities.
A search pursuant to warrant produced a rope, tape and gauze, as well as a knife and scissors which were identified by the witness. She also identified her brassiere which was found in a wastebasket. In addition to such corroborating circumstantial evidence, the occupant of the downstairs apartment testified to hearing sounds of a struggle and a girl's voice in pain for over a period of 40 minutes. A witness also observed a girl blindfolded and with her hands tied being taken from the building.
Defendant testified that he resided with his wife but that he rented the apartment described in evidence. He stated that he retained the use of one room which he kept locked, and rented the remainder of the apartment to individuals called the McSherry brothers. He stated that he used the room to store various items of athletic equipment used in officiating baseball and basketball games, and that the rope and pallet shown in photographs and in evidence were connected with his boating activities and were stored in the room.
Defendant explained the evening in terms that he had reported to work but that there was nothing which needed his immediate attention and he left to perform various errands, during the course of which he came upon the prosecuting witness who was hitchhiking, or asked for a ride. He related that she entered the car and that they talked of various things and finally determined to go to his room for a "rap session." In the ensuing petting and caressing on the bed she agreed to remove her slacks, blouse and brassiere. Defendant testified it appeared that she was willing to have sexual intercourse until she discovered that defendant was married, whereupon she refused to respond to his attentions. He testified that as she resisted he became concerned that she would scream so he put a pillow over her mouth and later inserted cheesecloth and secured it "with athletic tape." He then taped her hands and tied her ankles so that she could not kick him. He stated that he cut the blouse and brassiere with a fishing knife in an effort to put them on while the hands were tied and that the prosecuting witness was blindfolded while he was taking her down the steps of the apartment and from the house to the car.
Defendant urges error in admitting Exhibit No. 64 into evidence during the cross-examination of defendant and permitting its use in the impeachment of defendant's testimony. It is not argued that the document was illegally seized. It is argued that the exhibit, called the "list," was not disclosed in the discovery ordered in compliance with Supreme Court Rule 412.
The "list" was procured during the execution of a search warrant in the room of defendant described in evidence. The inventory returned upon the warrant noted seizure of a garbage can and its contents of tape and torn papers, a garbage bag filled with papers, tape, gauze and a woman's "bra" and a bag of waste paper.
Defendant admitted writing the "list" of things to be purchased or procured by him. It included reference to a gun, knife, "tapes for eyes," "cloth for mouth moist," plastic gloves, tape and "tape around the breasts." Defendant urges that such items of impeachment were devastating to the theory of the defense, and that he was taken utterly by surprise. Objections were made, together with a motion to suppress and to strike the testimony.
We understand the substance of the argument to be that Rule 412 requires the prosecution to isolate or specify the particular pieces of paper from the other items seized in the garbage containers.
Defendant urges that the "list" should have been so set out under Supreme Court Rule 412(a)(ii), which provides for disclosure of:
"(ii) any written or recorded statements and the substance of any oral statements made by the accused or by a co-defendant, and a list of witnesses to the making and acknowledgment of such statements; * * *."
1 No authority is cited which holds that this portion of the Rule is applicable to the "list." The quote in the Committee Comments states that such portion of the Rule is framed in the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1601, to avoid confusion as to what constitutes a confession, and to further make available statements of co-defendants. The "list" clearly is not a product of custodial interrogation or a statement made to police authorities.
Defendant further urges that the "list" should have been pointed out under Rule 412(a)(v), which ...