APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 5, 1978.
The defendant, Guntis Utinans, was indicted by the Cook County Grand Jury on January 3, 1972. The indictment charged that Utinans, along with Michael Briseno (hereinafter Michael), Paul DiMartino, and Richard Briseno (hereinafter Richard), committed the offenses of rape, aggravated kidnapping, deviate sexual assault (oral copulation), indecent liberties with a child (two counts oral copulation and sexual intercourse), and contributing to the sexual delinquency of a child (two counts oral copulation and sexual intercourse). Ill. Rev. Stat. 1969, ch. 38, pars. 11-1, 10-2(a)(3), 11-3, 11-4(a)(1), (2), 11-5(a)(1), (2).
Pursuant to pleas of guilty, co-defendants Michael and Richard were sentenced by the trial court to the Department of Corrections. Michael received 7 to 20 years for the rape count, 7 to 20 years for the aggravated kidnapping count, 7 to 14 years for the deviate sexual assault count, 7 to 20 years for each of the indecent liberties counts, and one year for each of the contributing to the sexual delinquency counts. Richard received 5 to 15 years for the rape count, 5 to 15 years for the aggravated kidnapping count, 5 to 14 years for the deviate sexual assault count, 5 to 15 years for each of the indecent liberties counts, and one year for each of the contributing to the sexual delinquency counts. The foregoing sentences were entered to run concurrently. During the pendency of the charges, co-defendant Paul DiMartino died.
Utinans entered a plea of not guilty to all charges of the indictment. Two days before the trial began, the State withdrew prosecution of the contributing to the sexual delinquency counts. Following several days of trial jury verdicts were returned against the defendant on each of the remaining charges on September 17, 1975. Judgment was entered on each of the verdicts. On November 25, 1975, after a presentence investigation and a hearing in aggravation and mitigation, the court indicated that the rape and indecent liberties counts were merged. The defendant was sentenced to the custody of the Department of Corrections to serve 15 to 30 years in the penitentiary on the rape count, 15 to 30 years on the aggravated kidnapping count, and 15 to 30 years on the deviate sexual assault count, all sentences to run concurrently. Upon the denial of a motion for a new trial the instant appeal was perfected, alleging numerous errors entitling the defendant to a reversal of his convictions, a reversal and remand for a new trial, or a reduction of sentences.
The offenses charged in the indictment all occurred during the late evening and early morning hours of October 16 and 17, 1971, within the City of Chicago. At approximately 9 p.m., October 16, the complaining victim, a 15-year-old high school student, alighted from a bus returning from her job at a candy store. The victim, carrying a purse, three books and a transistor radio, was on her way to meet her boyfriend at a neighborhood park. Walking toward the park in an easterly direction the victim was approached by a man, later identified as Michael. This man inquired of her as to where she was going, but she ignored him and continued walking. Michael then grabbed her around the waist and, despite her screams and struggle, he succeeded in carrying the victim to a nearby blue, four-door automobile driven by a man later identified as DiMartino.
Michael forced the victim to lie face down on the back seat of the car while he sat on top of her. While she was still struggling, Michael informed the victim that he had a knife and that she would be hurt if she did not keep quiet. After driving for about 30 to 35 minutes, the car came to a halt in front of a garage. Michael got out of the car and the victim noticed that she was in a well-lit location and she saw a red and white sign. At this time the driver pushed her head back down. After Michael returned, DiMartino drove the vehicle into the garage.
Michael then blindfolded the victim with a white rag, bound her hands together, and led her to a pile of burlap bags on the floor of the garage. As the victim was forced to lie on the burlap, Michael untied her hands and removed her clothing. The victim testified that the blindfold was not tied very tightly and that she was able to see both above and below it. She testified that the garage was long and narrow, that it had a skylight, and that she could see clearly the taillights of the car which her assailants had parked approximately five feet from her. This car was discovered during the police investigation and it was registered to DiMartino at the time of the offenses.
The victim's testimony indicates that Michael was first to sexually attack her. During this first act of forced sexual intercourse the loose blindfold permitted the victim to observe clearly her assailant's face. Next, DiMartino, after first tightening the blindfold, forced the girl to have sexual intercourse with him. While this second assault was in progress, the victim heard the door slam and heard other voices; DiMartino informed her that more people had arrived. Michael again approached the victim and this time forced her to perform oral copulation and another act of intercourse. Then a third individual, identified by the victim as Richard, proceeded to force the victim to have sexual intercourse with him. By the time Richard had completed his assault the blindfold was again loose and had fallen almost completely away from the victim's eyes. The defendant, Utinans, then approached the victim.
According to her testimony, the victim observed clearly the defendant as he took off his pants. He then forced her to have sexual intercourse with him. Utinans asked her how old she was and if she was a virgin. The victim replied that she was 15 years old and had been a virgin until that night. After the defendant finished his first attack upon the girl, DiMartino returned and forced her on her stomach in order to perform anal intercourse upon her. The victim screamed as if in pain and the other men cautioned DiMartino to "take it easy" with her.
Utinans returned to the victim, sat down beside her and attempted to console her. When the defendant then tried to engage in anal intercourse with the victim she screamed and he yielded. Positioning himself along side the victim, and about 7 or 8 inches from her, Utinans once again attempted to comfort her. She testified that he said that "they [the assailants] were the ones who were bad and its wasn't me [the victim] * * *." While speaking to the girl, Utinans was observed by her to be drinking from a wine bottle and smoking a marijuana cigarette. The defendant next placed his penis by the victim's mouth, touched it to her mouth, and forced her to perform oral copulation.
Following the defendant's second round of sexual assaults upon the victim, she was forced to submit to two more acts of sexual intercourse with Michael and another with DiMartino. The girl's testimony indicates that there may have been a fifth person present in the garage during the attacks; however, this individual was never adequately described nor identified. At the conclusion of about 4 or 4 1/2 hours in the garage, during which time the victim was subjected to 12 acts of sexual assault, she was instructed by her assailants to get dressed.
Utinans then led the victim into the rear seat of DiMartino's car. She testified that during the ride her blindfold was loose enough to permit her to observe the defendant seated to her left, Michael to her right, Richard in the front passenger seat, and DiMartino driving. During the drive back to the victim's neighborhood the co-defendants "evaluated" her "performance." They referred to each other by the use of the names "Joe" (Michael), "Tom" (DiMartino) and "Pasquale" (Richard). They did not use any alias in referring to the defendant Utinans.
Some time between 2 a.m. and 3 a.m., October 17, the victim was set free about a block and a half from her home. According to her testimony, she recalled that she left part of the contents of her purse in the car. She called to the occupants to stop. Michael stepped out of the car to return her possessions. At this time the interior light of the vehicle was on and she saw all of the persons in the car, including Utinans.
The victim then went directly home and shortly thereafter informed her parents of what had happened to her. Following a shower, she was taken promptly to a local hospital for examination and treatment. Police officers, informed of the girl's complaints to her parents, arranged to meet the victim and her parents at the hospital. Because the local hospital would not examine victims of sexual assaults, the police arranged for the victim's transfer to the Cook County Hospital. At the time of trial the State and the defendant stipulated that the examination at Cook County Hospital disclosed the presence of sperm within the victim's vaginal cavity and trauma in the vagina area.
From the hospital the girl was taken to a police station where she was interviewed by several police officers. The interview was recorded on a cassette tape by Officer James Sesso and the content of the recording was summarized the following day in a typewritten report. The victim was finally taken home at about 7:30 a.m., Sunday, October 17.
Three days later the complaining witness was asked to go to the police station to view a lineup. From eight individuals she picked Michael, DiMartino, Richard, and the defendant, Guntis Utinans, on the basis of physical characteristics and voice identification. The victim positively identified these four men as her assailants. The police took the victim to a building on the west side which she identified as the place of her confinement and assault. Michael was employed at this building and at the time of his arrest, he possessed a key fitting its lock.
Further State's evidence consisted in the testimony of the victim's mother and of several police officers. The mother related, among other things, a telephone conversation she had on the night of the offenses with an individual who called and identified himself as the victim's boyfriend. Three police officers testified concerning their investigation of the victim's complaint and the procedures which led to the arrest of the defendant. Officer Sam Louis related his interview with Utinans following the latter's arrest. During this interview the defendant acknowledged that he knew Michael and Richard. Still another police officer was called to testify concerning the cassette tape recording of the victim's original interview with the police, and his unsuccessful efforts to locate the tape recording which has been lost.
Utinans did not testify. As his defense he presented the testimony of Officer James Sesso of the Chicago Police Department in the effort to impeach the testimony of the complaining witness. After refreshing his memory by means of the typewritten summary of the tape recorded interview of the victim, Sesso related that the victim had never mentioned anyone fitting the description of Guntis Utinans. He further testified that the first interview of the girl accounted for the involvement of "Joe," "Tom," and "Pasquale," but not the defendant. According to his recollection of the interview, the victim did not indicate her blindfold was loose at any time during the assaults. While the victim could not remember to whom she first described the defendant, her testimony indicates that she had spoken with many police officers that first morning and that she believed that she had accounted for Utinans' presence and participation in the offenses in some manner. No other witnesses were called to either affirm or deny the victim's recollection of her original statements to the police. The defense did not introduce into evidence the typewritten summary of the cassette recording, but the defendant did object to the nonproduction of the recording by the State, and sought relief for the State's conduct which was responsible for the disappearance of the cassette tape.
The defendant raises 11 contentions of error committed in the course of the trial court proceedings: (1) The evidence generally fails to prove beyond a reasonable doubt that the defendant is guilty of the offenses for which he was convicted. (2) The evidence fails to prove beyond a reasonable doubt that the defendant is guilty of aggravated kidnapping and deviate sexual assault. (3) The State failed to preserve and produce the cassette tape recording of the police interview with the victim. (4) Testimony concerning police investigations leading to the arrest of the defendant violated his right to confront those inferentially accusing him. (5) The corroborating testimony of the victim's mother concerning a telephone conversation with someone identifying himself as the victim's boyfriend is hearsay amounting to a violation of the confrontation clause. (6) The jury was erroneously exposed to a portion of the defendant's pretrial statement to the police which had been excluded by the court. (7) The defendant was precluded from effectively arguing his theory of the case by the court's rulings during closing argument and refusal to give a requested instruction to the jury. (8) A portion of the defendant's cross-examination of the victim was erroneously stricken from the record in the jury's presence immediately prior to final arguments. (9) Prosecutorial misconduct during closing arguments deprived the defendant of a fair trial. (10) The cumulative effect of contentions (4) through (9) deprived the defendant of a fair trial. (11) The sentences imposed were illegal and excessive: (a) the defendant was penalized for exercising his right to trial by jury; (b) the sentences violate the penological goals of the Illinois Constitution of 1970.
The defendant's contention that proof of guilt beyond a reasonable doubt is lacking in this matter initially concerns the question of Utinans' presence during the commission of the offenses. The argument suggests that because the only evidence locating the defendant at the scene of the crimes is the testimony of the complaining witness, grave doubt remains that Utinans participated in the offenses.
1 We recognize the special duty which courts> of review have in carefully reviewing the evidence in cases involving rape; however, this duty does not require or permit us to substitute another view of the weight or credibility of evidence for that of the triers of fact. Only if the evidence is "so palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused" may this court set aside the verdicts of the jury. People v. Reese (1973), 54 Ill.2d 51, 58, 294 N.E.2d 288, 291.
2 While Officer Sesso's testimony tends to impeach the credibility of the complaining witness' version of the events of October 16 and 17, 1971, such evidence does not require the jury to disbelieve the victim's testimony. This is especially true when the "impeaching" testimony relates to matters testified to at trial and omitted from the victim's original statements to the police, yet not inherently contradicting the original statements. The defendant would have us evaluate the effect of Sesso's recollection of the original police interview as necessarily rendering the victim's testimony incredible. This we cannot do. The failure of the victim, within a matter of a few hours of traumatic sexual assaults, to recall infallibly and relate to the police every detail, description and observation does not render her later recollection of a more complete version of the events implausible. Because of the nature of the assaults and the lack of sleep, discrepancies which exist between her original statements to the authorities and her trial testimony are understandable. Such differences as exist between the two versions go only to the weight given the testimony by the triers of fact. People v. Henderson (1976), 36 Ill. App.3d 355, 344 N.E.2d 239.
3, 4 The victim herein positively identified Utinans as one of her assailants at a lineup conducted only three days following the commission of the offenses. Moreover, she persisted in this identification and at trial again positively identified the defendant as having participated in the assaults. While corroborating evidence also exists in the form of medical stipulations and prompt complaint, in order for the jury to convict it is only necessary that there be a single eyewitness against the accused, provided the witness is credible and her testimony positive. This is true even though the testimony is contradicted by the accused or, as is the case here, impeached through the introduction of evidence concerning the witness' prior statements (People v. Hampton (1969), 44 Ill.2d 41, 253 N.E.2d 385; People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182.) On the record before us the jurors, as the triers of fact, could make a finding, beyond all reasonable doubt, that Utinans was present during the commission of the offenses.
Utinans also contends that even if he was shown to be present by the requisite degree of proof, the record fails to establish his knowing participation in the commission of the offenses. The contention is addressed solely to the insufficiency of the proof as to the required mental state. The defendant suggests that even if he had sexual relations with the victim it does not necessarily follow that he knew the acts were performed contrary to the will of the victim.
We are concerned with whether or not the evidence establishes the mens rea beyond a reasonable doubt. (See Ill. Rev. Stat. 1975, ch. 38, par. 4-3.) The mental state required to be established depends upon the statutory definition of the offenses. Neither rape nor deviate sexual assault are defined as requiring proof of any particular mental state. (Ill. Rev. Stat. 1975, ch. 38, pars. 11-1, 11-2, 11-3.) Thus, for these crimes "any mental state defined in sections 4-4 [intent], 4-5 [knowledge], or 4-6 [recklessness] of the Criminal Code is applicable." (People v. Marchese (1975), 32 Ill. App.3d 872, 882, 336 N.E.2d 795, 804; see also Ill. Rev. Stat. 1975, ch. 38, pars. 4-3 to 4-6.) The State need only prove general intent to satisfy the mens rea of rape and deviate sexual assault (see People v. Gold (1967), 38 Ill.2d 510, 232 N.E.2d 702, cert. denied (1968), 392 U.S. 940, 20 L.Ed.2d 1400, 88 S.Ct. 2317). Furthermore, kidnapping aggravated by the commission of rape is defined as requiring proof of knowledge, a particular form of general intent. Ill. Rev. Stat. 1975, ch. 38, pars. 10-1(a), 10-2(a)(3).
5 Unless admitted by a defendant, general intent (knowledge) necessary to support convictions for rape, aggravated kidnapping and deviate sexual assault must be established as a fact through circumstantial evidence. (People v. Marchese.) As in the review of all questions of fact, the inquiry of the court concerning the requisite establishment of the mental element is limited. We need only consider if there is evidence from which ...