APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
In this case, defendant appeals from convictions under two indictments. The first, indictment number 72-796, charged him with armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18-2), aggravated battery (Ill. Rev. Stat. 1969, ch. 38, par. 12-4(b)(6)), and resisting a peace officer (Ill. Rev. Stat. 1969, ch. 38, par. 31-1). The second, indictment number 73-2913, charged him with armed robbery, rape (Ill. Rev. Stat. 1971, ch. 38, par. 11-1), and deviate sexual assault (Ill. Rev. Stat. 1971, ch. 38, par. 11-3). Following separate jury trials under each indictment, defendant was sentenced to serve 5 to 15 years in the penitentiary for his conviction under indictment number 72-796, and 20 to 25 years in the penitentiary for his conviction under indictment number 73-2913.
In this appeal, defendant raises four issues for consideration. With respect to his conviction under indictment number 72-796, defendant contends that he was denied his right to a fair trial by an impartial jury because of certain information disclosed by one of the jurors following the verdict. He also contends that he was improperly convicted of both aggravated battery and resisting a peace officer because both charges arose out of a single course of conduct. With respect to his conviction under indictment number 73-2913, defendant contends the trial court erred in allowing the jury to hear evidence of another crime allegedly committed by him, and that the trial court erred in instructing the jury.
72-796 Summary of Evidence
At defendant's trial under indictment number 72-796, the following relevant facts were elicited from the testimony:
Iva Smith testified that at 9 a.m. on July 23, 1971, she was at the Illinois Central Railroad (IC) Windsor Park station located at 76th Street and Exchange Avenue in Chicago, where she was employed as a ticket agent. A man with a gun walked up to her window and said, "Open the door or I will kill you." She opened the door to the booth and two armed men entered. They forced her to crouch under a counter as they filled their pockets and a brown paper bag with money, train tickets, and stickers bearing the IC logotype from the cash drawer. She observed that one of the men, whom she identified as the defendant, wore a pair of yellow slacks with a grey or blue stripe. Asked if that was all of the money, she responded that there was more in the safe. Smith assisted the men in opening the safe. They removed cash from the safe and left the booth. Moments later, defendant reentered the booth and ripped the telephone off the wall. In all, $261.75 was taken.
Smith could hear the men conversing outside for a couple of minutes, although she could not hear what was being said. When she heard them running down the stairs, she looked out the window and observed the men crossing the street below. They were now wearing different clothing. Defendant was now wearing denim levis and a denim jacket.
Later that day, Smith went to the police station where she related to police the details of the crime. She viewed a lineup from which she identified defendant as one of the robbers. At this time, he was wearing the denim clothing she had seen him wearing shortly after the robbery. As she was leaving the room after identifying defendant, the police asked her to stay for a moment. Defendant was then told to remove his denim trousers. He did so, revealing a pair of yellow slacks with a grey or blue stripe underneath. Smith again identified the defendant as one of the robbers.
Silverio Flores, a Chicago police sergeant, testified that he was driving his car to work on July 23, 1971, at approximately 9 a.m. As he proceeded southbound on Exchange Avenue approaching 76th Street, he observed two black males leaving the IC station, walking briskly and looking back over their shoulders. When he came to a stop sign at 76th and Exchange, the men crossed in front of his car, then broke and ran westbound on 76th Street. The shorter of the men was carrying a brown paper bag under his arm.
Flores turned west on 76th Street, and parked his car on a street one block west of Exchange. He got out of his car and approached the two men. When he pulled out his badge and identified himself as a police officer, the taller man ran into a passageway between two buildings and disappeared. He was not apprehended. The shorter man, whom he identified as the defendant, stopped. Flores approached him, and again identified himself. Suddenly, defendant took a swing at Flores, knocking off his glasses and bruising his right eye. A struggle ensued as Flores attempted to arrest defendant, during which defendant dropped the brown paper bag revealing the proceeds of the IC robbery.
Defendant wrested himself from Flores' grip and ran into a nearby hotel. Flores pursued, stopping to ask the hotel desk clerk to call for assistance. Resuming the chase, Flores enlisted the assistance of one of the hotel's patrons to block defendant's flight down a hallway. Again attempting to effect the arrest, Flores received a bite on the arm and a "stomped toe" at the hands of the defendant. Avoiding capture once more, defendant again fled. He was finally apprehended by other police officers responding to the hotel clerk's call for assistance.
Defendant testified that he had slept at the apartment of a friend at 7650 S. Marquette (a few blocks from the IC station at 76th and Exchange) on the night of July 22, 1971. He awoke between 7:15 and 7:30 a.m. on July 23 to go to work, leaving his friend's apartment at approximately 8:30 a.m. Because he could not start his car, he began to walk toward the home of another friend who lived at 7641 S. Phillips to obtain assistance. As he was walking, a "big Mexican man" (Flores) ran up from behind him, grabbed him, began to choke him and to hit him on the head with the butt of a gun. To protect himself, he ran into the hotel and asked the desk clerk to call the police. Defendant testified that Flores then grabbed him again and only then identified himself as a police officer.
Defendant denied committing the IC robbery, denied having any sort of brown paper bag in his possession, and denied wearing yellow slacks with a blue or grey stripe. He testified that a police officer had forced him to put those slacks on while he was locked in a cell in the police station prior to the lineup.
73-2913 Summary of Evidence
At defendant's trial under indictment number 73-2913, the following relevant facts were elicited from the testimony:
Complainant *fn1 testified that at approximately 8 a.m. on July 3, 1973, she was leaving her residence near 74th Street and South Chappel in Chicago to go to work. As she reached the backyard gate leaving to the alley behind her apartment building, a man with a gun stopped her. The man, whom she identified as the defendant, said to her: "Don't move, don't scream, or I'll blow your head off." They went back into the yard, and he forced her to go under the back porch with him. He told her to give him her money, and she gave him two dollars and some change.
Then he asked her if she lived in the building. She said yes. He asked her if there was anyone else home and if she had a dog. She answered both questions in the negative. Pointing the gun at her, defendant ordered her to take him to her apartment. Once inside the apartment he made her lock the door and give the keys to him. He conducted a thorough search of the apartment, looking for anyone else who might be there. Satisfied that the apartment was empty and that no one else would come in, he ordered her into the bedroom and told her to undress. He then unzipped his pants and forced her to perform an oral sexual act upon him. During this act, he said, "Is this the best you can do?" He then pushed her down on the bed, put the gun in his back pocket, and had sexual intercourse with her. At one point, she attempted to reach ...