APPEAL from the Circuit Court of Cook County; the Hon. KENNETH
R. WENDT, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Milton Brown, was found guilty by a jury in the circuit court of Cook County of the offenses of rape and deviate sexual assault and sentenced to four to twelve years in the penitentiary. Defendant appeals, asserting (1) he was denied effective assistance of counsel, (2) he was not proved guilty beyond a reasonable doubt, (3) the trial court erred in allowing the State to introduce rebuttal testimony concerning a prior arrest of defendant, (4) the trial court erred in refusing to allow a State's witness to be called as a defense witness and in denying defendant a continuance to present a witness and (5) his convictions for both rape and deviate sexual assault were improper.
The complainant testified that at 7 p.m. on January 25, 1973, she was walking along a street in the city of Chicago with her three-year-old daughter. A man walked past them from the opposite direction, turned and came up behind complainant. He put a knife to her throat, told her not to make any noise and to turn around and start walking the other way. The man led her and her daughter to the enclosed gangway of an apartment building, where he unscrewed two light bulbs which were illuminating the area, shook a set of brass knuckles at complainant and asked if she knew what they were. He took complainant and her daughter into a small room off the gangway, forced her to lie down and remove one leg from her pants, committed an act of cunnilingus and then had sexual intercourse with her. Defendant testified that he was home at the time.
• 1 Defendant argues that he was denied effective assistance of counsel because his privately retained attorney asked him on direct examination about a prior arrest.
The standards applicable to a claim of trial counsel's incompetence are stated in People v. Torres (1973), 54 Ill.2d 384, 391-392, 297 N.E.2d 142, 146-147:
"* * * The defendant's trial attorney was not appointed by the court but entered his appearance on behalf of the defendant. In such a case the court will not reverse a conviction because of the incompetency of counsel unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or a sham. People v. Redmond, 50 Ill.2d 313; People v. Stanley, 50 Ill.2d 320; People v. Green, 36 Ill.2d 349; People v. Williams, 26 Ill.2d 190.
* * * Errors in strategy and of judgment on the part of counsel do not render the representation incompetent. (People v. Somerville, 42 Ill.2d 1, 11; People v. Washington, 41 Ill.2d 16, 21.)"
"* * * [I]n order to warrant the reversal of a conviction on grounds of inadequacy of representation the defendant must demonstrate the actual incompetence of counsel in carrying out his duties and, in addition, it must appear that `substantial prejudice results therefrom, without which the outcome would probably have been different.' (People v. Harper, 43 Ill.2d 368, 374.)"
Defense counsel's opening remarks to the jury demonstrate that part of his strategy was to "show that the defendant here is not the type of individual to get involved in this kind of sexual activity, that he never has been involved in this type of sexual activity." This strategy is also apparent at the beginning of defendant's presentation of evidence. The first witness called for the defense was defendant's fiancee. After a few brief preliminary questions, defense counsel asked:
"Q. Since you have known Mr. Brown, have you ever heard of him being convicted for any sex crimes?
Q. Have you ever heard of him being involved in any problems with sex in general?
Q. In other words, you never heard of any complaint lodged against him concerning his sexual behavior from anyone?
Defendant's fiancee repeated these denials during cross-examination. Contrary to these denials, defendant had, in fact, been arrested two years prior to this case for the offense of taking indecent liberties with a child. The child was his fiancee's ...