APPEAL from the Circuit Court of Sangamon County; the Hon.
SIMON L. FRIEDMAN, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant and his co-defendant, Stanley Stigleman, were charged by information filed in the circuit court of Sangamon County with the offenses of rape of Ms. H., rape of Ms. B., burglary with intent to commit rape and burglary with intent to commit theft. Defendant alone was charged with deviate sexual assault. The cases were severed for trial on motion of Stigleman. After a jury trial defendant was found guilty of all charges and thereafter was sentenced to 8 to 20 years on each sex offense and 2 to 6 years on the burglary offense, all sentences to run concurrently. This appeal followed.
By reason of the issues raised by defendant and by reason of a prior order of this court concerning Stigleman, a detailed recitation of the shocking and sordid evidence is not necessary. Suffice it to say, the record discloses adequate factual bases upon which a jury could find the defendant guilty beyond a reasonable doubt.
Defendant raises three issues on appeal: (1) misconduct by the prosecutor in commenting in closing argument on defendant's right of silence and on matters not in evidence, the effect of which denied defendant a fair trial; (2) failure of the State to prove defendant accountable for the rape of Ms. B. by failing to prove that the act was against her will; and (3) failure of the State to prove that defendant possessed the necessary specific intent to commit burglary on account of the influence of drugs and alcohol.
Issue No. 1 arose in the following manner. After the events leading to this prosecution occurred, defendant was interviewed by several police officers at several different times. At first he protested his complete innocence, but after being faced with a crucial piece of evidence, he changed his story and made an incriminating statement. Motions to suppress the statement were denied. At trial defendant claimed that Ms. H. had consented to the sexual acts, he admitted that he had not mentioned any consent by the victim in his statement to the police; he also asserted that he had not read the statement carefully, although he admitted to signing it and initialing each page and knew that it was an important document.
A portion of the prosecutor's final argument went as follows:
"Miss Scott [prosecutor]: * * * He said, however, that Dickerson just wrote a lot of things down and that he, Henson, just glanced at it and just signed it and didn't read it.
He never bothered to tell Officer Palmer or Officer Dickerson his defense that they consented, because he didn't want to be involved in rape.
Miss Scott: There is good old Dickerson. He's just dreaming this up, and he's writing it down, anything he wants. And this man who is under arrest and charged with rape and who's been advised of his rights, he knows he signed a waiver of his rights. He remembers that. Doesn't bother to read a five-page statement, just signs it.
And he keeps his defense a secret for three months from July 30th until yesterday afternoon. Perfectly good defense if it's believable.
Mr. Ray: Object to that comment, your Honor, I think it's improper.
The Court: That objection will be sustained. Refrain from that statement, Miss Scott.
Miss Scott: Ladies and gentlemen, he had every opportunity to tell Officer Palmer on the night of July the 30th that those girls consented, and he didn't. And he had every opportunity to tell ...