APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendant, Edward Williams, was charged in a four count indictment with rape, burglary, burglary with intent to commit rape and aggravated assault. (Ill. Rev. Stat. 1969, ch. 38, pars. 11-1, 19-1, 12-2(a)(1).) Upon defendant's motion for a directed verdict, during the course of the jury trial, the trial judge dismissed the counts of burglary with intent to commit rape and aggravated assault. Defendant was found guilty on the remaining counts of burglary and rape and was sentenced to concurrent terms of one to three years for burglary and five years to five years and one day for rape.
On appeal, defendant contends that he was not granted a fair trial since: (1) the trial judge arbitrarily applied the harshest sanction available under Supreme Court Rule 415(g) (Ill. Rev. Stat. 1971, ch. 110A, par. 415(g)), resulting in the wrongful exclusion of all defense witnesses; (2) the trial judge improperly denied, without a hearing, defendant's motion for substitution of judges; (3) the trial judge incorrectly limited defense counsel's cross-examination of the complaining witness. Additionally, defendant contends the State failed to prove defendant guilty beyond a reasonable doubt.
We agree, in part, with defendant's contentions and therefore reverse and remand this cause for a new trial.
Josephine Purnell testified that at approximately 3 a.m. on October 12, 1970, she was sleeping in her apartment in Chicago, when she was awakened by a ringing of her doorbell, followed by a pounding on her door. She arose from bed to answer the door where she observed defendant, a man she previously knew as a friend of her husband. Defendant was standing on the porch and appeared to be talking to someone. Defendant was saying, "Here she comes now Mama." Purnell assumed that defendant was talking to her mother-in-law whom they referred to as "Mama." Defendant then said, "Open up the door, Mama wants to see you."
Purnell opened the door to discover that defendant was alone. Defendant shoved the door open more fully, entered the apartment hallway and attempted to kiss her, but Purnell pushed him away. Defendant lunged at her throat, and proceeded to choke her and tell her that she had to die and that Purnell's husband who was in the hospital had sent him there to kill her. Purnell testified further that a struggle between her and defendant then ensued in the hallway and lasted for approximately 1 1/2 to 2 hours. During this time defendant punched her, continually choked her and repeatedly threatened to harm her and her three children who were sleeping in the apartment at the time. Defendant then ripped off her housecoat, felt her breasts and pelvic area, and pushed her towards the couch in the living room. Defendant then forced Purnell to have sexual intercourse with him twice.
Purnell related that following the second act of intercourse, she got dressed and attempted to go to her bedroom, where she kept a gun under her pillow, but was interrupted when her five-year-old daughter came into the living room. Defendant promised to leave if Purnell made him a cup of coffee, so she complied. At approximately 7 a.m. defendant left. Purnell watched defendant walk to the corner and disappear from sight, at which time she went next door where her mother-in-law lived. Purnell was crying as she told her mother-in-law that she had been raped by defendant and wanted to use the telephone. Purnell called the police who arrived 10 minutes later. Purnell then went home to get dressed and the police took her to the hospital where she was administered a pelvic examination and throat X rays.
At approximately 4:30 p.m. Purnell returned from the hospital. As she alighted from a cab to go into her home she observed defendant sitting on her front porch. Defendant said, "Oh my God, what did they do to you." Purnell ran to her mother-in-law's home and told her mother-in-law that defendant was sitting in front of her house. Purnell then called the police.
Purnell subsequently returned to her home and discovered that defendant had left the front porch. She entered her apartment and noticed that her kitchen window was broken and that the gun from under the pillow in her bedroom and a wallet with a small amount of money were missing.
Purnell further declared that since the occurrence, she had noticed that her voice had become deeper, her left eye was higher than her right, and the vision in her left eye was somewhat impaired.
During cross-examination, Purnell stated that she had marital relations with her husband on October 9 and 10, 1970, while he was home on a weekend pass from the hospital. She did not have sexual intercourse with her husband or anyone else on October 11, 1970, the day before the alleged rape.
She further testified that defendant and a woman named Eileen came to her home on October 11, 1970. Purnell also stated that defendant gave her his coat before the first act of intercourse. Purnell admitted that she had access to the back door of her apartment while she was making coffee, but she did not want to leave her young children alone with defendant. Purnell further admitted that the development of a deepness in her voice was her own conclusion, and was not a medical diagnosis.
The trial judge refused to permit defense counsel to cross-examine Purnell regarding the details of a pending criminal indictment against her and a man named Forkenberry. The judge further sustained all the State's objections when defense counsel sought to inquire about the possible presence of a man named Friason at the Purnell home on the day prior to the rape. The judge also ...