APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding:
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a bench trial, Chester Armstrong (defendant) was found guilty of burglary (Ill. Rev. Stat. 1973, ch. 38, par. 19-1); rape (par. 11-1); contributing to the sexual delinquency of a child (par. 11-5); aggravated kidnaping in that he knowingly and secretly confined the complaining witness against her will and committed rape (par. 10-2); aggravated kidnaping in that he knowingly and secretly confined the complainant and committed a deviate sexual assault (par. 10-2); deviate sexual assault (par. 11-3) and escape while charged with a felony (par. 31-6(c)). He was sentenced to 6 to 18 years for burglary; 6 to 18 years for rape; 6 to 18 years for each of the two counts of aggravated kidnaping; 6 to 18 years for deviate sexual assault; 1 year for contributing to the delinquency of a minor and 1 year for escape with all sentences to run concurrently. Defendant has appealed.
In this court defendant contends that a bona fide doubt as to his fitness to stand trial existed but that a competency examination ordered by the trial court was never carried out and prior to sentencing defendant informed the court of his previous psychiatric treatment; the inherently improbable testimony of the complaining witness was insufficient to sustain the conviction; the multiple convictions all arose from a single offense; he was denied his right to a meaningful appeal because of loss of notes taken by the official court reporter and the 1-year sentences for misdemeanors should be reduced.
The alleged crime occurred on September 13, 1973. The complaining witness, then 17 years old, lived with her mother, brothers and sisters in an apartment on West Harrison Street, in Chicago. About 4:30 p.m., when the witness was alone in the apartment, defendant knocked on the door and asked if "Bunny" was there. This was the nickname given to the complaining witness. She responded negatively. Defendant also inquired as to whether her mother and father were home and she again responded negatively. The defendant forcibly pushed in the locked door and entered the apartment. He slapped the witness in the face, threatened to kill her and asked her if she wanted to see the gun he had in his pocket. She responded negatively. Defendant demanded that she leave the apartment and walk down the street which she did, with him following behind her. She did not have a chance to turn off the burner under food which was cooking on the stove.
The witness testified further that the two of them walked about a block and a half in this manner and entered a basement apartment on West Congress Street. The trip included passage through two gangways. They passed several people on the way but the witness testified that she made no attempt to escape or call for help. In the living room of the basement apartment defendant again slapped her, threatened her life and demanded that she undress. He then partially disrobed and demanded that she perform an act of oral copulation. She complied but vomited. Defendant demanded that she lick up the resulting substance on the floor and she pretended to comply but did not.
She further testified that defendant then removed all of his clothing and took her into the bedroom. There he struck and choked her again and again and compelled her to have sexual intercourse with him on the bed. Defendant stated that he had lost his watch and that he was going to look for it. He took a sheet from the dresser, tore it into strips, tied and gagged the witness and left through a rear door. She freed herself from the bonds and gag and went to retrieve her clothes. Defendant returned and told her that "they was after him and for me not to tell them what happened." He told her that he would give her money if she did not tell what he had done. He gave her the clothes and then took her forcibly by her wrist to the front of the house. There he pulled the curtain back and asked her if she knew two people standing outside. She identified them as two men, her boy friend and a neighbor.
Defendant then took the complaining witness to the rear of the apartment. As he opened the rear door she eluded him and ran out of the building where she met the neighbor who took her to the front. At that time she was crying. Her mother appeared and the witness told her that she had been beaten. She spoke to the police officers, out of the presence of her mother, and told them that she had been raped. She testified that she had bruises on her neck and face and a bump over her eye. A vaginal examination made at the hospital later that evening confirmed the presence of sperm. The examiner also found an abrasion and contusion on her neck, a swollen lip and small lacerations. She testified that she had seen the defendant once before about a month and a half prior to the incident but denied that she had ever previously been to the apartment on Congress Street and denied having sexual relations with defendant before the day in question.
Police Officer Petit testified that after receiving a call he had a conversation at the Harrison Street apartment with the mother of the complaining witness at about 6:15 p.m. He accompanied the mother to the Congress Street apartment where they saw the complaining witness leaving the building. In the presence of her mother she stated that she had been beaten and when the mother moved away the witness told him that she had been raped. The witness noted a bruise on her forehead and some scratches on the cheek area. He and another officer found defendant hiding under the bed in a rear bedroom. He did not see evidence of vomit in the apartment.
The complainant's mother testified that she returned home between 5 and 5:30. She found the front door had been broken open. A photograph taken by the police technician showed part of the lock on the wall and a broken part on the floor. The mother found that there was food cooking and burning on the gas stove; the flame was on. She walked to the door where she found and picked up a "gold band watch" with a black face. She then walked outside and had a conversation with the landlord. She called the police who arrived in about 20 minutes.
This witness further testified that she had seen the defendant prior to that date sitting on the step of the building in which she lived. Several hours later he knocked at the door. She asked who was there. Defendant responded that it was the police. She looked out the window and saw the defendant. She asked him who he wanted to see and he replied, "Bunny." She then called the police. She observed her daughter in the county hospital on the night in question, September 13, and saw scratches on her neck and blood at her mouth. On cross-examination the mother added that when she accompanied the police that evening, the complaining witness ran over to her crying when she saw her for the first time.
Police Officer Sykes had also been called to the scene. He investigated the basement apartment and observed a pool of liquid on the living room floor. He also saw strips or pieces of a sheet upon the bed. He identified photographs of this scene taken by the police technician. Later that day he interviewed defendant at the police station. Defendant admitted to him that he had intercourse with the complaining witness with her consent as he had on two previous occasions. He denied that he had kidnapped her. Defendant told him that upon leaving the house with the girl, he saw her family and became frightened and therefore he ran back into the house and hid under the bed.
Regarding the escape, the officer further testified that after he left the defendant he again spoke to the complaining witness. He heard strange noises coming from the room in which defendant had been left. He found that the window and steel grating had been forced open and that defendant was no longer in the room. He saw defendant running away down the street.
Defendant produced witnesses in his own behalf and also testified in his own defense. As will later be fully stated, it was impossible for the report of this portion of the proceedings to be completed in the usual manner because the shorthand notes taken by the court reporter had been lost and were unavailable. These notes contained the defendant's case, rebuttal by the State and closing argument of counsel. The matter was brought to the attention of this court by counsel for defendant. After due consideration this court entered an order directing preparation and filing of a bystander's report of proceedings as provided in Supreme Court Rule 323(c). Ill. Rev. Stat. 1975, ch. 110A, par. 323(c).
Thereafter the trial court conducted a hearing attended by the assistant State's Attorney and the assistant Public Defender who had participated in trial of the cause and also counsel for defendant in this court. The record of these proceedings has been duly prepared, certified by the court reporter and filed in this court as a supplement to the record. It contains a statement by the trial judge that those present attempted to reconstruct the record from the notes taken by the trial attorneys for the People and the defendant, as well as by the trial judge. The parties conferred for this purpose prior to the statements made to the court reporter and reflected in the record before us. Counsel for the defendant in this court stated at that time that this ...