APPEAL from the Circuit Court of Livingston County; the Hon.
WILLIAM T. CAISLEY, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his convictions upon jury verdicts of deviate sexual assault and a battery committed while in the custody of the Department of Corrections, together with the sentence of 10 to 20 years to be served consecutively to sentences for rape, armed robbery and aggravated battery for which he was then incarcerated.
Upon appeal he argues that he was not proven guilty beyond a reasonable doubt, that prejudicial remarks of the State's Attorney in closing argument require reversal, that the trial court erred in imposing a minimum sentence of 10 years to be served consecutively to the sentence then being served, and that the trial court erred in failing to vacate the conviction of battery which was a part of the same act as that in the deviate sexual assault.
Upon the last issue the prosecution confesses error. Upon the authority of People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1, the confession is approved.
Without setting forth of the evidence in full detail, the prosecuting witness was about 23 years of age and had entered the penitentiary as a prisoner about two days before the events in evidence. Upon the issue of proof beyond a reasonable doubt, we note that neither the identity of the defendant, nor the fact that the defendant met the prosecuting witness and took or persuaded him to enter the "icehouse" and locked the door is in dispute. Defendant does deny performing the act of anal intercourse described in evidence. He testified that he took the prosecuting witness to the "icehouse" to assist the latter in procuring possible employment there, and that he, the defendant, locked the door because the prosecuting witness was not authorized to be in the place. There is corroboration of the prosecuting witness by one Welch, an inmate assigned to the icehouse permanently. The latter testified that he returned to the facility after a short absence and found the door locked. He knocked on the door and defendant emerged with the prosecuting witness. Welch noted that the latter appeared to have tears in his eyes and to walk with pain.
In addition to his denial, one Carter testified for the defendant that on the date in question he had performed a similar act on the prosecuting witness "in front of the chapel." Such testimony was admitted as impeachment of the prosecuting witness on his testimony as to his physical condition.
An appellate court will not reverse a judgment of conviction on the grounds of insufficient evidence unless it can be said that there is clearly a reasonable and well-founded doubt of the guilt of the accused, and that verdict is palpably contrary to the weight of the evidence. (People v. Perroni (1958), 14 Ill.2d 581, 153 N.E.2d 578.) A conflict in testimony of itself does not establish a reasonable doubt as to defendant's guilt and the credibility and the weight to be given to the testimony of witnesses is a matter for the trier of fact and will not be disturbed unless clearly erroneous. (People v. Clanton (1973), 16 Ill. App.3d 593, 306 N.E.2d 486; People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230.) The issue of the credibility of the several witnesses testifying in behalf of defendant is essentially a matter for the trier of fact.
Upon the issue of the prejudicial remarks made by the prosecuting attorney, defendant, in his initial brief, quotes the statement:
"One thing I would like to remind you, Mr. Vogel is a very nice attorney and very cooperative and very easy to work with and very pleasant manner, but Mr. Vogel isn't on trial here, Mr. Bullock is. Mr. Vogel has a job to do. He is not doing the job because the man is innocent, he is doing the job because it is his job to do.
MR. VOGEL: I am going to object to that remark, it is very prejudicial.
The prosecution, however, points out that the remarks quoted followed the closing argument of counsel for the defense as follows:
"Mr. Foltz, in the first part of his closing arguments, and incidentally I don't know if that is a good term to use, arguments. What we are really talking about here is the evidence that has been presented and we've tried to be fair about it and to comment on it fairly, but I have a job to do. My job is to represent Mr. Bullock because he is entitled to representation just as any other person would be to the fullest, and it may well be in my closing arguments that I may get carried away to a certain extent, and if I say anything that does not conform with the evidence that was presented through the witnesses that testified, disregard whatever I say because I am not a witness in this case.
I suggest to you not only that Mr. Bullock is innocent, he wouldn't be here if he didn't think he was innocent and I wouldn't be defending him if I didn't ...