APPEAL from the Circuit Court of Livingston County; the Hon.
SAM HARROD, III, Judge, presiding.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendants were indicted on February 22, 1974, for the January 15, 1974, deviate sexual assaults of Gary Zion, a fellow inmate in the Pontiac Correctional Center, a violation of section 11-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 11-3). A motion to dismiss, based on the lack of a speedy trial, was filed on May 20, 1974. Jury trial was held July 31 through August 2, 1974, and all three defendants were found guilty.
At trial, Gary Zion testified that on January 15, 1974, at approximately 3 p.m., he was talking with defendant Chaney when defendant Carpenter asked the two of them to help him move desks out of cell 815. They agreed and walked down a corridor until they passed cell 815. Zion then dropped back and started walking in the opposite direction. Defendant McFadden grabbed Zion and told him to continue walking in his original direction. Then Zion grabbed hold of the cell bars and yelled for a guard. McFadden and Carpenter eventually pried Zion off the bars with force, beating and threats. They walked Zion further down the hall at which time Zion grabbed the bars again and was pried off. During this incident, Zion was threatened with a shank or sharp piece of knife-like metal, which was hidden by a piece of cloth. Carpenter and McFadden carried Zion into Chaney's cell and a blanket was put over the bars. Zion and McFadden were left alone and Zion called for a guard. McFadden then beat Zion. Carpenter came into the cell and helped McFadden disrobe Zion. At this point, McFadden anally raped the victim. Chaney then entered the cell and McFadden left, locking the cell as he went. Chaney then anally raped Zion. Chaney then told Zion to get under the bed, called a guard, and the door was opened by the guard, allowing Chaney to depart. The guard left and soon returned, noticing Zion in the cell. After leaving the cell and walking around the corner with Chaney still two feet away, Zion told the guard of the event. The guard then helped Zion wash up and took him to the prison infirmary. Zion positively identified the defendants at trial and the day after the incident, although he was unable to identify McFadden or Carpenter in a photo lineup held a few hours after the incident.
Officer Stephen Hallock, a prison guard, testified that at approximately 3:45 p.m. on January 15, he opened Chaney's cell and noticed Zion getting up. Zion had been crying, had blood on his face and appeared shaken up. When Hallock asked Zion what happened, Zion related the offense.
Defendant Carpenter testified that he did not know McFadden or Zion on January 15, 1974, nor did he observe any sexual activity involving the other defendants and Zion. Chaney admitted that he was acquainted with Carpenter, McFadden and Zion at the time, and that Zion was in the business of selling sex. Carpenter testified that he had had voluntary sexual relations with Zion on prior occasions. Chaney admitted having sex with Zion on January 15, but maintained that it was without force or coercion of any sort. McFadden testified that Zion had offered to have sex with him in exchange for 15 packs of cigarettes. According to McFadden, he gave Zion the cigarettes and met him at Chaney's cell where they had sex.
Several witnesses testified to Zion's sexual activity in jail. Charles Heard, an inmate, testified that Zion had a reputation as a homosexual or bisexual, while inmate Michael Scott testified that Zion had a reputation for having sex with other inmates. Both Heard and Scott had known the defendant for several years. Cecil Clausen, an assistant warden at the Vandalia Correctional Center, where Zion had been transferred from and returned to, testified over defense objection to Zion's good reputation for chastity.
The jury then returned verdicts against all three defendants. Chaney was sentenced to a 10- to 30-year term of imprisonment, to be served consecutive to the sentence he was then serving; Carpenter was sentenced to 10 to 40 years, to run consecutive with the sentence he had been serving; and McFadden was sentenced to 10 to 50 years to be served consecutive to the sentence he was then serving.
Defendants' first contention of error involves their claim that they were denied a speedy trial and that their motions for discharge should have been granted pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103-5). Defendants argue that they were in custody for purposes of starting the 120-day term when they were placed in segregation. The State stipulates that defendants were tried more than 120 days after defendants were placed in the segregation unit (January 15, 1974, for Chaney; January 16, 1974, for Carpenter and McFadden), but contends that the speedy trial period begins to run on the date of indictment (February 22, 1974). Here, defendants were offered a trial on May 20, 1974, just 87 days after indictment, or 125 and 126 days after defendants were placed in segregation. Hence, the issue was when the 120-day period begins to run.
• 1 This issue was discussed in People v. Smith (1976), 42 Ill. App.3d 731, 356 N.E.2d 656, in conjunction with a separate issue of whether already incarcerated defendants are subject to the 160-day speedy trial rule under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1003-8-10) or the 120-day rule (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(a)). We are not faced with that issue and any discussion of it would be irrelevant, since the applicable speedy trial period commences on the date of indictment when the defendant is already incarcerated on unrelated charges. (Smith. See also People v. Arbuckle (1964), 31 Ill.2d 163, 201 N.E.2d 102, cert. denied, 380 U.S. 945, 13 L.Ed.2d 964, 85 S.Ct. 1029.) The trial court's ruling denying the motion for discharge was therefore correct.
Second, defendants contend that the prejudicial impact of testimony by medical technician Michael Burke that "[t]he victim also complained of being sexually molested" could not have been eradicated by the court's instruction to the jury to disregard the remark. The People contend that the judge's instruction to the jury was sufficient to eliminate any prejudice to the defendants.
Defendants' reliance on People v. Thomas (1974), 22 Ill. App.3d 854, 318 N.E.2d 342, is unfounded. In Thomas, the alleged prejudicial remark was the prosecutor's reference to the defendant as a "criminal" while here the remark was made by a witness. More in point is People v. Kirkwood (1959), 17 Ill.2d 23, 160 N.E.2d 766, cert. denied, 363 U.S. 847, 4 L.Ed.2d 1730, 80 S.Ct. 1623, which also involved a remark made by a witness. In Kirkwood, the complaining witness testified on direct that she identified the defendant from a picture in a book of "known sex offenders." Defense counsel's objection was sustained and the jury instructed to disregard the remark. The supreme court held that while the remark was improper, it was not prejudicial error because it was unresponsive and promptly stricken. Here, the witness' remark was similarly unresponsive, as the record indicates that the State's Attorney was questioning Burke about abrasions on Zion's body, apparent from a visual examination, when Burke volunteered the hearsay statement about Zion being sexually molested. We believe that the identity of the party making the improper remark is the critical difference between Thomas and Kirkwood, and on that basis we hold that it was not reversible error to strike Burke's hearsay statement and admonish the jury to disregard it.
• 2 Third, defendants contend that the trial court erred in failing to strike State rebuttal testimony concerning Zion's reputation for chastity. Cecil Clausen, assistant warden at Vandalia, testified for the State that Zion had a good reputation for chastity. On cross-examination, Clausen admitted that his testimony was based on personal knowledge. Then on re-direct, Clausen testified his opinion was not based on conversations with other people concerning Zion, but was based on other factors besides personal knowledge. Clausen did not elaborate on what those other factors were and defense counsel chose not to re-cross-examine Clausen to pin him down.
Both sides agree that the rule governing reputation testimony is, that to be admissible, the witness' opinion must be based upon contact with the subject's neighbors and associates rather than upon the personal opinion of the witness. (People v. Moretti (1955), 6 Ill.2d 494, 129 N.E.2d 709, cert. denied, 356 U.S. 947, 2 L.Ed.2d 822, 78 S.Ct. 794.) Defendants argue that Clausen's own testimony shows that his opinion was not based upon the required contact with neighbors and associates, but rather was based solely on personal opinion. The State counters by arguing that Clausen's testimony, that his opinion was based on other factors besides his personal opinion, was sufficient to establish a proper foundation for his reputation testimony. In addition, the State cites People v. Huffman (1927), 325 Ill. 334, 156 N.E. 342, for the proposition that reputation testimony is admissible where the witness has not discussed the subject's reputation for chastity with other people. We hold that under Huffman, the fact that Clausen, after testifying to the subject's good reputation for chastity, subsequently admitted that he had never discussed Zion's reputation for chastity with other people, does not render Clausen's testimony inadmissible.
• 3 Defendants also contend that it was reversible error for the trial court to overrule a defense motion to exclude all witnesses and allow Gary Zion, the complaining witness, to remain in court to hear the State's other witnesses testify before he testified. Defendants maintain that because Zion was not excluded, he was able to hear prior prosecution testimony and remarks of counsel which gave him a better opportunity to make his testimony consistent with that of the other witnesses. Defendants complained that they were prejudiced because Zion's testimony was so critical in this case. The State contends that review of the record shows that Zion testified in conflict with several prosecution witnesses on points on which he could have been consistent had ...