APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
J. KAPLAN, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a bench trial defendant was found guilty of rape, deviate sexual assault and unlawful restraint. He was sentenced to serve 8 to 20 years in the penitentiary for rape and given concurrent sentences of 8 to 20 years imprisonment for deviate sexual assault and 1 to 3 years imprisonment for unlawful restraint. On appeal he contends: (1) that favorable evidence was suppressed; (2) that he was prejudiced by an ex parte meeting between the trial judge, complainant and the prosecutor; (3) that the trial judge erred in limiting inquiry into the complainant's mental and physical condition, and in excluding testimony concerning her reputation as a prostitute and her practice and knowledge of that profession; (4) that he was not proved guilty beyond a reasonable doubt; and (5) that if the sex offense convictions are affirmed, his conviction for unlawful restraint must be reversed as it arose out of the same course of conduct as the other convictions. We reverse and remand.
Since the events at trial and the sequence in which they occurred serve as the background for the two issues we will deal with in this opinion, we will outline the pertinent facts according to the dates on which they came to light.
The prosecutor and defense counsel stipulated that defendant was 60 years old. Both then answered ready for trial and defendant waived his right to a jury trial.
Tuesday, October 21, 1975
The complainant testified that she was a married woman with one child. On July 12, 1974, she was living with her boy friend, Mose Wilson. She left home that day sometime between 8 p.m. and 9 p.m. She took a cab to a tavern and proceeded to have two drinks while waiting for a man. After waiting approximately 45 minutes she left the tavern and started walking to a restaurant. Someone walked up to her and told her he had $10. She ignored the man and kept walking. The man followed and again told her he had $10. She told him that if he wanted somebody, it would have to be somebody else, and she kept walking. At this point in the trial she identified defendant as the man who approached her that night. Defendant then put something in her back and told her to keep walking. He held this object in his right hand. She had a shoulder bag with her and she dropped it. He warned her not to do anything funny and she picked her purse up. They walked into an alley and proceeded to a doorway. He opened the door with one hand and they entered a building. They proceeded to a room containing children's toys. Lights were on in the building and defendant turned the lights off at this point. Nevertheless the room they entered remained brightly lit. She did not know what the source of the light was. After they entered the playroom defendant asked her to disrobe. She took off a jacket she was wearing but refused to remove any other clothing. Defendant ordered her to take off her clothes. She took off her slacks but left a body shirt and her panties on. Defendant then forcibly removed the body shirt and the panties and had sexual intercourse with her on a tumble mat or child's bed. After the third act of sexual intercourse she screamed and defendant struck her in the head. Her head turned to the left and she saw a knife with a hooked blade lying next to defendant's right hand. Leaving the knife on the floor to her left, defendant then put his tongue on her vagina. Subsequently defendant again engaged in sexual intercourse with her. She could not recall how many times he penetrated her. Defendant kept her in the playroom for 7 1/2 hours. She tried to escape several times during this period but defendant was lying on the floor next to her with his right leg over her legs and thighs and he had sexual intercourse with her after each of her first two attempts to move away. After her third attempt to escape, defendant put his mouth on her vagina. Defendant finally fell asleep and she got up, put her panties and body shirt on, ran out the door, put her slacks on and ran down the alley. She went to a restaurant, telephoned her boy friend and told him she had been raped. He arrived at the restaurant 10 to 15 minutes later and took her to the Illinois Masonic Hospital. She was examined at the hospital and she stayed there one week. She then left the hospital but about four days later she returned and had five operations. She further testified that the examination occurred at approximately 6 a.m. After being examined she spoke to four police officers. Then she left the hospital and went to a police station. There she looked through a book containing photos but she did not find a photograph of her assailant. She left the police station with her boy friend. He wanted to know where the incident took place but she was not sure where it occurred and did not recognize the area as they drove past it. They returned to the area that evening and she then recognized the building in which she was raped. Accompanied by her boy friend and her baby, she again drove by the building a day later. She observed defendant at that time and stopped two police cars. She spoke to the officers and then flagged down a detectives' car. The detectives arrested defendant. She identified defendant as the assailant when he was brought out of the building. She had never met defendant before the night in question. Moreover, she did not consent to the sexual intercourse and she never gave defendant permission to perform oral copulation. Also, she did not remain in the building voluntarily and she was not married to defendant when the incident took place.
Upon completion of complainant's direct examination the trial judge decided to recess and instructed the complainant to return the next morning. She stated she would not be back the next morning. The judge ordered her to return. She asked the judge if he was going to pay for a baby sitter. The judge told her she could bring her baby with her and that baby sitters were available at the court. She said she could not afford a baby sitter and did not want anyone except her mother or herself to watch her baby. The judge again ordered her to be in court the next morning. She replied that she would see if she could get to court. The judge warned her that she might be held in contempt if she did not withhold her comments. She said: "Then I will be in contempt of court." The judge ordered her taken into custody. She said: "If you are going to take me into custody, then take my son too." She added: "I am under a doctor's care. I have to go three times a week." The judge told her that if she did not appear the following morning, she would be taken into custody and kept in custody until the case was over. She replied: "Well, they don't know where I live. I am not going to be here your Honor." Court was then adjourned.
Wednesday, October 22, 1975
The complainant was present when trial resumed the next morning.
On cross-examination the complainant stated that she had lived with Mose Wilson for six months prior to July 12, 1974. She denied that she testified on direct examination that she was waiting for a man at the tavern. She purchased the first drink she had at the tavern and a man at the bar purchased the second. She left the hospital on July 13, 1974, but she did not have a watch on so she could not say how long she remained there. Court adjourned at this juncture.
Thursday, October 23, 1975
When her cross-examination resumed the complainant testified that defendant offered her money three times. After each of these offers she simply kept walking and did not speak to him. Defendant then put something in her back and ordered her to turn the corner. Despite the fact that there was traffic on the street, she did not scream at this point. She did not say anything to defendant before she entered the building. She never attempted to turn around and look at the object defendant held to her back or to otherwise ascertain what it was. She walked up to a steel door in the alley and defendant opened it. It was the kind of door that can only be opened from the inside unless it is left ajar. The first thing defendant did after bringing her into the building was to take her by the arm and turn off the lights in the front part of the building. He left the lights on in two offices. She asked him to answer a ringing telephone while he was turning off the lights. She said nothing else to him until they entered the playroom. They entered the playroom and defendant told her to take her clothes off. She refused to do so. He repeated his order and she again refused to disrobe. She took her jacket and slacks off after he told her to undress for the third time. She did not see his knife at this point and she had not seen it prior to this point. While she was undressing defendant removed his pants. She did not attempt to escape while he was taking his pants off. There were no chairs in the playroom. She also testified that she could not recall if there were any chairs in the playroom as she went back to the building a week after the incident and the furniture in the playroom had been rearranged. Then she testified that she sat on the one chair in the playroom and put her clothes on it. More specifically, she put her jacket, shoes and purse on the chair. She went on to testify that she never sat on the chair. In fact, she did not sit down before she had sexual intercourse with defendant. She next testified that she sat on the mat, not the chair, before she took off any of her clothes. She added that she was standing when she took her slacks and jacket off. But then she said defendant took her slacks, body shirt, jacket and shoes off of her. In any case, she put her slacks on the chair. The only remaining clothing she wore at this point was her body shirt and panties. Defendant then ripped her body shirt off.
A side bar conference was held at this point in the trial in which defense counsel asked the judge to order the State to produce the body shirt, and then argued that this article of clothing would indicate force or the lack of force and that he had a right to inspect it before continuing his cross-examination of the complainant. The judge asked the prosecutor, Assistant State's Attorney Magnes, if the State had the body shirt. The prosecutor stated that the article was not in the State's possession. The judge then asked if the State had ever possessed the article and the prosecutor denied ever having it. The prosecutor added that none of the clothing worn by the complainant on the night of the incident was taken and inventoried by the police. When asked by defense counsel if the State ever had any indication that such evidence existed prior to this point in the trial, the prosecutor replied that he thought asking the question was "somewhat presumptuous." The judge pointed out that prosecutor Magnes was not the first prosecutor assigned to this case and said that he thought the question was impossible for him to answer. Defense counsel pointed out that the prosecutor had records which he could refer to and base his answer upon. The following colloquy then occurred:
"THE COURT: Was any clothing ever kept or in anyway used as a part of this case?
MR. MAGNES: To my knowledge, none of the clothing worn by the prosecutrix was taken by the ...