APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Lloyd Joseph Therriault was indicted and tried for rape (Ill. Rev. Stat. 1969, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1969, ch. 38, par. 11-3), and armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18-2). A jury found defendant guilty on all three counts and he was sentenced to a term of 20 to 60 years' imprisonment. Thirteen issues are raised on appeal.
Defendant contends: (1) that the line-up from which he was identified was suggestive; (2) that he was not proved guilty beyond a reasonable doubt; (3) that it was error to admit testimony of a second woman demonstrating common scheme or design; (4) that Supreme Court Rule 451(a) constitutes an improper exercise of the Supreme Court rule-making power; (5) that he was denied effective assistance of counsel; (6) that it was error to deny a motion to produce and a motion for a bill of particulars; (7) that it was error to admit details of his arrest; (8) that it was error to admit certain physical evidence; (9) that the State's rebuttal testimony was improper; (10) that it was error to refuse to admit certain surrebuttal testimony; (11) that the Assistant State's Attorney's closing argument was prejudicial; (12) that the mandatory parole term provided by section 5-8-1(e) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1(e)) is unconstitutional; and (13) that the sentence is excessive. At the outset of trial defense counsel waived all pretrial motions.
The complainant testified that on August 20, 1970, at approximately 5 a.m. she arose, prepared coffee and proceeded to bathe herself. While she was in the bathtub she heard a noise in the kitchen of her ground floor apartment located at 5773 Northwest Highway in Chicago. The intruder walked to the front of the bathroom entrance and stood approximately 8 feet from the complainant with a gun in his hand. The man instructed the complainant to turn her head towards the bathroom wall. The man also told her that she would not be harmed if she cooperated with him. The man walked into the bathroom, pulled the complainant from the bathtub, forced her into the bedroom, and compelled her to lie across the width of the bed. Lights were burning in the kitchen, the bathroom and in the hallway, which is adjacent to the bathroom and bedroom. Complainant testified that she was able to see the man's face in direct light before he forced her into the bedroom.
The man removed his trousers, but he did not undress any further. He placed the gun on a chair and draped his pants over the gun. The man then pulled the complainant to the edge of the bed and performed acts of intercourse and cunnilingus. Complainant stated that she looked directly into the man's face during the assault which lasted approximately 5 to 8 minutes. The bedroom was illuminated by the hallway light which shone through the bedroom's open entrance. At the completion of his acts, the man put on his trousers and walked to the kitchen through the hallway. The man opened complainant's purse, which had been placed on the kitchen table, removed her wallet, and took $1 in currency. Complainant stated that $1 was the total amount of money in her wallet. The intruder exited through the kitchen door which led to the rear of the apartment building. Complainant later discovered that the man had initially entered the kitchen through a large sliding window.
On direct examination complainant identified defendant as the man who raped her on the morning of August 20, 1970. She further identified a brown, wool cardigan sweater as the sweater defendant was wearing at the time. Defendant was wearing the same sweater on the night of his arrest, August 27, 1970. She also testified that a .22-caliber revolver, which was discovered in the defendant's car at the time of his arrest, closely resembled the gun the defendant carried on August 20, 1970.
After the defendant left the apartment complainant telephoned her son, who was living with his father-in-law. The complainant told her son's father-in-law that she had been raped. The complainant's son and the police arrived at the apartment. The complainant was taken to Resurrection Hospital where she was examined. The father-in-law corroborated the complainant's testimony at a later point in the trial.
On August 27, 1970, at approximately 5:30 a.m. the complainant received a call from the police. She proceeded to the Jefferson Park-Gale Street Police Station at approximately 9 a.m. The complainant testified that she did not communicate with any police officer while she waited in a small room in the station. She was then taken to a larger room where she viewed a line-up of four men. She recognized the defendant in the line-up as the man who raped her. Photographs of the line-up were introduced into evidence.
Bernadette Kwak, a microanalyst for the Chicago Police Department, testified that she microscopically examined a slide of a vaginal smear taken from a medical examination of the complainant at Resurrection Hospital on August 20, 1970. Spermatozoa was present on the slide of the vaginal smear. Bernadette Kwak also microscopically examined slides composed of extracts from the bedsheet which covered complainant's bed on August 20, 1970. The slides of the bedsheet extracts were positive for spermatozoa.
On August 27, 1970, at approximately 2 a.m. Officer Robert Francesconi responded to a burglary-in-progress call at 6543 Northwest Highway. When he arrived at the scene, Officer Francesconi observed defendant running from a gangway between two buildings "with a brown object in his hand." Officer Francesconi was parked in an unmarked car parallel to the defendant's 1964 Oldsmobile. Officer Francesconi shouted at the defendant in an attempt to stop him; however, the defendant pulled away in his automobile. An unmarked squad car gave chase and eventually curbed the defendant. Officer Francesconi stated that street lights illuminated the area enabling him to clearly see the defendant's activities.
Officer Francesconi spoke with a woman who resided at 6543 Northwest Highway. The officer learned that the woman had called the police because someone had been jiggling the back door of her apartment. The intruder did not gain entry into the woman's apartment.
Officer Francesconi proceeded to the street where defendant had been stopped and arrested by other officers. On direct examination Officer Francesconi testified that one of the other officers said, "We got a gun out of the car, is this a bona fide burglary?" Officer Francesconi responded that "The people said no, it was not a bona fide burglary, it was just an attempt." The court sustained defendant's objection to the question which elicited this testimony and later instructed the jury to disregard the answer. The court denied defendant's motion for a mistrial.
Once a police squadrol arrived at the arrest scene Officer Francesconi escorted the defendant to the squadrol. Officer Francesconi testified that when the defendant was asked why he was profusely sweating on a cool night, the defendant replied, "You'd be sweating if you were in my shoes." No objection was raised by the defendant to this portion of Officer Francesconi's testimony.
Officer Philip Onesto corroborated the testimony of Officer Francesconi pertaining to the events surrounding the arrest of defendant. Officer Onesto stated that a .22-caliber 9-shot revolver was found protruding out from underneath the front seat of the driver's side of defendant's automobile.
James Sesso, an investigating officer for the Chicago Police Department, testified that he saw defendant in custody at the 16th District Station during the early morning of August 27, 1970. Officer Sesso determined at the time that defendant resided in Wheeling, Illinois, approximately 5 miles from the 6500 block of Northwest Highway. Officer Sesso stated that defendant, without being questioned, commented, "I should have never gone back to the Highway." On cross-examination Officer Sesso testified that fingerprints taken from the kitchen window and kitchen door of complainant's apartment were not suitable for comparison.
A second woman testified that on July 18, 1970, at approximately 1 a.m. she was watching television in an upstairs bedroom of her townhouse located at 6265 Northwest Highway. Alarmed by the barking of her dog, the woman walked downstairs to the living room area. She was met by a man with a gun whom she identified as the defendant. The woman screamed; defendant told her that if she screamed again he would shoot her. Defendant forced the woman to walk ...