APPEAL from the Circuit Court of Du Page County; the Hon.
JAMES E. FITZGERALD, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 5, 1977.
Defendant, Ernest H. Pugh, Jr., after a mistrial because of a hung jury, was retried and convicted of two counts of deviate sexual assault and sentenced to two concurrent sentences of 15-20 years in prison. On appeal defendant raises eight issues:
1. Was the defendant denied a fair trial because the trial court sustained a State objection to defendant's closing arguments summarizing the evidence of impeachment of the alleged victim;
2. Was the defendant denied a fair opportunity to present his defense and thereby denied due process of law because the trial court excluded a defendant's witness from testifying solely because she had married and changed her name from that provided the State in discovery;
3. Was the defendant denied a fair trial because of the prejudicial closing argument of the prosecution, who called the defendant's alleged conduct "below the category of being an animal";
4. Should the hair and blood samples taken from the defendant have been suppressed because there had been no notice to his attorney, as required by the Illinois discovery rules;
5. Was the defendant entitled to an evidentiary hearing on the allegations in his motion for a new trial that there had been prejudicial communications with the jury;
6. Was the defendant improperly convicted of two counts of deviate sexual assault arising from one transaction;
7. Did the trial court exceed its authority in ordering that the defendant would not receive sentence credit for the 19 months he spent in custody in the county jail; and
8. Are the defendant's sentences of 15-20 years excessive.
The record reveals that on January 7, 1974, between 8:45 and 9:30 p.m., a man wearing an overcoat, described by the victim as black and white with a fur collar, and grey and maroon pants, at gunpoint forced the store manager of the 7-Eleven Food Store in Villa Park, Illinois, to disrobe in the backroom of the store and commit different deviate sexual acts with him. The man threatened the victim that if she did not keep her mouth shut he would kill her. Immediately after the attack the victim telephoned a co-worker for assistance and promptly reported the attack to her. The co-worker immediately contacted the police. A customer of the store testified that shortly after the attack he was asked by the victim to stay with her. He testified that shortly thereafter a car pulled into the store parking lot and to the right side of the building and he took the license number of the car and gave it to the police. The police found that the defendant owned the car that was in the store lot by running a registration check on the automobile's license plate. They went to the defendant's apartment and knocked. No one answered but they observed the defendant's vehicle in the parking lot. The police kept the vehicle under surveillance. A short time later the defendant entered his vehicle and drove away. The police tried to stop the defendant but he fled. The police chased the defendant with their Mars lights operating on their marked squad cars down several streets, finally apprehending the defendant after his car hit another automobile, a traffic signal, knocked down a light pole and crashed into a shed. When the defendant was captured he was wearing a grey coat with an imitation fur collar and maroon or burgundy trousers with a diamond insignia. Inside the car a blue steel snubnosed replica of a revolver was found as well as a scarf and stocking cap. On January 10 the victim identified the defendant's photograph from a group of 12 photographs which she viewed at the Villa Park police station. The victim also made an in-court identification of the defendant.
The record reveals that there were at least four customers in the store and parking lot at the time of the incident. The four customers who testified at trial described the individual who walked out of the back room through the store and out the front door as being a white male with similar physical characteristics of the defendant. The customers testified that the individual was wearing an overcoat and rust or maroon colored pants. They were unable to identify the pants the defendant had on as being, in fact, the pants that the individual who walked out of the back room was wearing.
Dr. Hubert C. Swartout testified that he examined the victim but found no sperm on any of the smears that he took from her. Jacqueline Fracaro, a fingerprint expert, testified that she examined the latent prints found in the back room but was unable to make a positive identification of them. Timothy Dixon, a criminologist, testified that he found traces of seminal material on the victim's pants and that the semen came from a person with group "A" blood type, which the defendant had. Dixon testified that on the left sleeve of the defendant's coat he found a hair similar to the head hair of the victim and dissimilar to the hair of the defendant. Dr. Gary Dosik testified that he examined the victim in the emergency room at the hospital and found a reddening or inflammation of the rectal sphincter muscle. Dr. Dosik testified that any source of irritation could cause slight erythema of the rectal sphincter muscle, including a very vigorous wiping after a normal bowel movement.
The defendant introduced evidence that he had been drinking heavily on the day in question. He admitted being in the 7-Eleven store parking lot for the purpose of buying more beer, however, upon determining that the store had been closed, he left and went to another Convenient shopping mart. He further testified that after acquiring the beer at the other shopping mart, he returned home to do his laundry and to finish drinking the beer. He then proceeded to take a drive to clear his head, at which point the police officers attempted to apprehend him and he fled. His flight ended in an automobile collision and his apprehension at that time. His excuse for fleeing from the police was that he did not want to be arrested for driving while intoxicated.
The jury found the defendant guilty of both counts of deviate sexual assault as alleged in counts I and II of the indictment and the court entered a judgment on the verdicts from which the defendant appeals.
• 1 The defendant's first contention is that the defendant was denied a fair trial because the trial court sustained a State objection to defendant's closing argument summarizing evidence of impeachment of the alleged victim. In his closing argument defense counsel contended that the victim was impeached by her alleged inconsistent testimony at the two trials of the defendant concerning where she left her pants and blouse after she was forced to disrobe. The record discloses that the alleged discrepancy in the testimony of the witness was brought out by the defense counsel at the second trial. The State, in its objection to the closing argument, mistakenly stated that this evidence had not been admitted in the second trial and the trial court sustained this objection. Obviously the trial court was in error. Nevertheless, the defense counsel stated, "I won't argue that point." We find that the alleged impeachment which defense counsel was attempting to argue to the jury was merely impeachment on a minor, unimportant aspect of the case. The defendant did not argue that the victim was not sexually assaulted. There is sufficient evidence in the record to prove that the victim was sexually assaulted. Defendant contends that he was not the party who committed the offense and claims that he never entered that store that night. The relevant issue then is not how the crime was committed but whether the defendant was the party who committed the deviate sexual assault. We therefore fail to see how the victim's somewhat inconsistent statements as to the details involving the sexual assault could be used to impeach her positive identification of the defendant as her attacker. The victim described in rather remarkable detail the somewhat unusual clothing the apparently armed assailant was wearing; a disinterested witness took the license number of the defendant's car at the scene; and when the defendant was arrested later that night he was wearing substantially the clothing described by the victim, to-wit, a grey overcoat with a mouton collar and maroon pants. He had a replica of a snub-nosed revolver in his possession. Furthermore, three days after the attack, when the victim was shown 12 pictures, she immediately identified the defendant as her attacker. These pictures were introduced into evidence at the second trial without objection. The victim also made an in-court identification of the defendant. We find that the identification where the victim observed the defendant for some time in the brightly lighted store, coupled with her immediate, detailed description of her assailant to the police, is more than sufficient to overcome the defendant's denial of having been in the store. The evidence is conclusive that the defendant was the offender. The defendant has failed to prove that the erroneous ruling of the trial court prejudiced him in any manner. Without proof of such prejudice, the error is merely harmless. Thus the trial court's ruling limiting the defense counsel's closing argument, while error, was not reversible error.
• 2, 3 Defendant next contends that he was denied a fair opportunity to present his defense, and thereby denied due process of law because the trial court excluded the defense witness from testifying solely because she had gotten married and changed her name from that provided the State in discovery. The defendant gave notice to the State that he intended to call his stepdaughter as a witness on Monday, June 23, 1975, and she was not called as a witness until Friday, June 27, 1975. The defense counsel gave the State's Attorney the stepdaughter's name as Diane Taylor. He also provided the State's Attorney with her telephone number and address. When the defense counsel gave this to the State's Attorney he asked him if he wanted him to file a formal amendment to the discovery in this particular case and was told that the State's Attorney did not think it was necessary. Unbeknownst to the defense counsel, the stepdaughter had been married the weekend before trial and, in fact, her name was Diane Taylor Lienhard. When the defendant called the witness to the stand the State's Attorney objected to her testimony. The trial court excluded her testimony as a part of the sanctions provided for under Supreme Court Rule 415(g)(i) (Ill. Rev. Stat. 1975, ch. 110A, par. 415(g)(i)). Defense counsel argues that the exclusion of the witness for failure to comply with the discovery order as provided in Rule 415(g)(i) is unconstitutional and that the defendant's right to compulsory process of witnesses is sacrificed for failure to comply with the procedural rule. Defendant states that use of the exclusion sanction to deny a ...