APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Walter Lee Handley and Antoine Turner were charged by indictment with attempt rape in violation of section 8-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8-4). After a joint bench trial, defendants were found guilty and sentenced to the Illinois State Penitentiary for two to six years. Defendant Handley appeals, contending that (1) he was not proved guilty beyond a reasonable doubt, (2) he was improperly denied a counsel of his own choice, (3) he was denied effective assistance of counsel at his sentencing hearing, and (4) the trial court improperly considered evidence of arrests not resulting in convictions in sentencing him, and (5) the trial court's sentence is improper because it did not consider defendant's potential for rehabilitation.
The prosecutrix testified that at about 11 p.m. on October 5, 1973, she met a friend named Maurice while walking home from a party. Maurice went into a store at 115th Street and Bishop, Chicago, Illinois. She waited for Maurice, but decided to walk toward home by herself. While walking toward Halsted Street she met the defendant, who said "Hi" to her. She returned the greeting. She had seen the defendant before and heard people call him Fat Walter. The prosecutrix continued walking and was met by some of defendant's friends.
One of defendant's friends asked her name and she told it to him. She did not continue talking to him. When she started walking again, she tripped and fell. One of the boys said that they were going to take her home because she was high. The prosecutrix told the boy to leave her alone because she did not know him. The boys insisted that they did not want anything to happen to her and said they would walk her to her door. They began pulling prosecutrix toward 114th Street. She was pulled and pushed around the corner into a lot in back of an abandoned house. Although she was screaming and fighting, the five or six boys took her into a garage. Prosecutrix identified the defendant and his co-defendant as two of the boys who had taken her to that garage.
They pushed her to the floor of the garage. They removed her shoes, her pants and pulled down her underwear. One of the boys left the garage, saying he would wait outside. The others started climbing over her. She was still struggling. Turner put his foot on her throat and told her he could choke her to death. The one who was on top of her complained to his friends that she kept pushing him off. The others said he was taking too long. They wanted their turn. Defendant told her to shut up because she was making too much noise. After that, the police came.
She first saw the police after she came out of the garage. One of the boys was caught by the police as he tried to get over the fence. She could not see which one of them was caught going over the fence. Later that night, she identified defendant and Turner at the police station.
On October 5, 1973, prosecutrix was 15 years old and was not married to defendant or Turner.
On cross-examination, prosecutrix stated that she could not describe the boy on top of her because it was dark in the garage and she was trying to resist him. Two boys had seen her being pulled by the group of boys, but they left when one of the attackers said he was prosecutrix's cousin. Defendant had entered the garage ahead of her and the other boys. She had not been drinking or smoking at the party that night.
During redirect examination, she testified that while she was being pulled, one of the boys asked where they were going. Defendant responded, saying they were going to this lot up here.
On re-cross-examination, the prosecutrix testified that defendant had walked to the front of the rest of the group.
Officer James Gorman of the Chicago Police Department testified that he was on duty as a tactical officer on October 5, 1973. He was working with Officer Koerber. They received a call that a woman was calling for help. Upon arriving on 114th Place, they heard screams from the back of 1456 West 114th Place, an abandoned brick bungalow. Koerber went into the gangway at that address. Gorman heard Koerber shout, "Halt" to a group of male negroes who were running from the garage behind the bungalow. Gorman saw a male Negro running from the alley into a yard to the west of him and arrested a man who was later identified as Turner. Gorman took Turner to a marked squad car, where he was held. When he saw the prosecutrix, she was in an emotional state and was putting her clothes back on. On that night Gorman heard no gunshots fired nor did he fire any.
Officer Leon Koerber testified that on October 5, 1973, he was a Chicago police officer assigned to work the tactical unit with Officer Gorman. They were dressed in civilian clothes and were using an unmarked automobile while on duty. At approximately 11 p.m. they received a call from police communications that a woman was screaming for help at 1456 West 114th Place. They stopped in front of an empty lot adjacent to that address. Koerber went down the gangway along the 1456 building and heard screams coming from the area of the garage. A moment after he shouted to Gorman that he had located the source of the screams, six to eight male Negroes ran from the side door of the garage.
One of the men, who later was identified as defendant, was having trouble getting over the gate of the fence by the garage. Koerber took him into custody at gunpoint. He first saw the prosecutrix as she was crawling out of the side door of the garage. She was pulling up her outer and under garments.
Antoine Turner testified in his own defense. He stated that he saw the victim in front of a liquor store on October 5, 1973. She appeared to be drunk because she was talking to everyone and pulling at them. After he left the liquor store, he walked north on Laflin Street to go to a party. While he was walking, a squad car pulled next to him and the police inside the car told him to stop. He thought they wished to speak to him about a fight he had been in earlier that night. He ran away, heard shots and fell down, thinking he had been shot. A plainclothes officer in an unmarked ...