APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant, Alexander Gonzales, was found guilty of the crimes of rape, deviate sexual assault, and aggravated kidnapping (two counts). The court sentenced him to serve concurrent terms of 35 to 55 years each for rape and deviate sexual assault. The court further entered a single judgment on the verdicts as to the two counts of aggravated kidnapping and sentenced defendant thereon to one term of 4 to 12 years, to be served concurrently with the sentences for rape and deviate sexual assault.
On appeal defendant contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) he was denied a fair trial by the State's introduction of evidence of other crimes; (3) he was compelled to forego his right to remain silent by the State's improper use of evidence of other crimes; and (4) he was denied a fair trial by the prosecutor's prejudicial comments during closing argument. We affirm. The pertinent facts follow.
Prior to trial, the defendant filed a written motion in limine, requesting that the State be precluded from introducing evidence of other crimes allegedly committed by defendant. On June 18, 1976, following an offer of proof by the State's Attorney, the trial court denied defendant's motion. In so doing, the court reasoned that the offer of proof had demonstrated sufficient similarities as to identity, intent, and modus operandi between the other alleged crimes and the incident in question so as to allow evidence of these other crimes to be admitted at trial.
At trial, the prosecutrix testified that on March 29, 1974, she was 22 years old and worked as an X-ray technologist from 4 p.m. to 12 midnight. After work she received a ride to Elston and Paulina Avenues, arriving at 12:30 a.m. She began walking toward her home in the 3400 block of West Belle Plaine, which was eight blocks away.
As she neared 3619 West Belle Plaine, the prosecutrix was approached by a man. He placed a moon-shaped knife to her throat, identified himself as a police officer, and announced that he was taking her to the police station. The man was not in a uniform, nor did the victim believe he was an officer. With the knife at the prosecutrix's side, the man led her to a two-door, black-over-gold Dodge Dart Swinger, with a black interior. They both entered the car. The assailant, with the knife in his right hand, then placed his right arm around the victim and held the knife at her throat. The prosecutrix identified the defendant in court as the man who approached her and forced her to enter the car on the night in question.
The prosecutrix pleaded with defendant to let her go and he refused. He then drove around the block a few times, during which time the victim pleaded to be let out and asked defendant what he saw in her. He responded that he had been watching her for several days, after which he pulled into an alley and parked the car. The prosecutrix again pleaded to be let go, told defendant that he was a young man, and asked why he did not go to a bar up the street and pick somebody up. Defendant responded that he was not interested in that. The victim noted that defendant was very calm, and she asked him if he had ever done this before, to which defendant responded that he had, and "the last girl was willing." She stated that there was a streetlight or alley light shining through the front windshield during this conversation. Defendant asked her age and was surprised when she said she was 22. In response to further questions from defendant the prosecutrix told him that she was not married and that she was not a virgin. Defendant then held the knife to her face and told her she would be scarred for life if she did not cooperate.
Following this threat defendant removed his pants and forced the prosecutrix to perform an act of oral sex upon him. She was told to remove her clothes, which she did. Defendant then put the knife in her vaginal area and again threatened her if she did not cooperate. They engaged in intercourse during which time the defendant called her Evelyn, which was not her name. After this occurrence, defendant got dressed, said he was sorry, and told the prosecutrix that he had only done this on three prior occasions. He asked where she could be dropped off and she told him right at the corner, which was near the home of a friend. The victim stated that defendant remained calm throughout the incident, and that his voice was softspoken and calm. She also stated that he had an odor of strong cologne and beer.
After she left the car, the prosecutrix went to the home of her friend and informed her that she had been raped. The police were called, and they arrived at the house at about 1:15 a.m. The police took the prosecutrix to the hospital where she was examined by Dr. Larson. It was stipulated that Dr. Larson and a police laboratory microanalyst would testify that a slide prepared from the vaginal tract of the prosecutrix on the date of the incident was found to contain sperm.
The prosecutrix described her assailant to the jury as being between 5'7" and 5'9" tall, 145 pounds, with black curly hair, a mustache, and sideburns. He was wearing a black leather jacket and dark clothing. She testified that she gave that description to the police. Although the assailant had told her that he was 17 or 18 years old, the prosecutrix stated she thought he was 20.
In August of 1974 the prosecutrix viewed a composite drawing which she said looked similar to her assailant. Later that same month she was shown a group of six photographs by two detectives. She selected one of the pictures and told the detective, "He's the man." She recognized the picture which she had picked out and identified defendant as being the man depicted in that photograph.
On or about September 4, 1974, the prosecutrix viewed a lineup at the police station, at which she identified defendant as her attacker. She viewed photographs of the lineup and testified that the man in the number 2 position, the defendant, was the man she identified on that day.
On cross-examination the prosecutrix stated that she was with defendant for a period of 15 to 30 minutes, during which time she was able to view the entire front of his face. When the police arrived after the incident, she described her assailant to them as having had dark eyes. She testified further, however, that she did not pay attention to the color of the attacker's eyes. She viewed his face and general appearance, but did not look directly into his eyes. At trial the prosecutrix stated that she still believed that her assailant had dark eyes.
On redirect examination the prosecutrix looked at defendant's eyes from the witness stand and testified that she was unable to determine their color. She stated that in her experience, the quantity of lighting available affects how she perceives the color of other peoples' eyes. Defense counsel later asked the prosecutrix to step down and approach the defendant and tell the jury what color his eyes were, but she did not wish to do so and the State's objection to this procedure was sustained.
The witness also stated that she had never seen the offender before the attack. When she identified defendant's photograph to the police she was positive of her identification. Later, at the lineup, the police told her they would like her to make an identification of an individual in the lineup if she could. However, the police did not tell her that they had the man, nor did they prompt her to pick out any particular individual either during the lineup or the viewing of the photographs.
Police officer Ann Leybourne testified that on April 10, 1974, she was off duty at 8:40 p.m. and was driving in her own car, near Belle Plaine and Damen Avenues in Chicago. While driving she saw a man who appeared to fit a composite description of a man wanted for rape. She observed the man apparently gesture to a young girl who was walking by, and who appeared to ignore the gesture. Officer Leybourne identified the defendant in court as the man she saw on April 10, 1974. Officer Leybourne circled the block and drove into an alley, toward which she had seen the young girl walking. Once in the alley Leybourne saw the girl struggling with the man she had seen on Belle Plaine. As Leybourne started to get out of her car, the girl broke away from the man and ran south. The man ran north, past Leybourne, and was observed by her from a distance of 5 to 10 feet. Later the evening Officer Leybourne, the young girl, who it was learned was named Lori [____] and another officer, searched the area for the man but were unable to find him. She testified that they were also looking for a car which had been described in the police bulletin that contained the description of the person wanted at Homicide/Sex.
In September, Officer Leybourne viewed a lineup and identified the defendant as the man she had seen struggling with Lori. The witness examined People's Exhibit No. 2, a photograph of the lineup, and testified that the defendant was in the number 2 position of the lineup.
On cross-examination Officer Leybourne testified that the man she saw matched the description of a man wanted at Homicide/Sex, for what they considered to be a pattern of rapes. The police bulletin on this man included a composite sketch which resembled the man she had seen, although the eyes in the sketch were too weakly portrayed as compared to the man she had seen. Leybourne was asked if she knew the color of either defendant's eyes or the eyes of the man who attacked Lori. She responded negatively to both questions.
Lori testified that on April 10, 1974, at 8:40 p.m. she was in a drugstore at Lincoln and Belle Plaine Avenues, where she observed a man. As Lori was walking toward her home in the 1900 block of West Belle Plaine, she saw the man again, standing in a doorway at 1950 or 1952 Belle Plaine. The man spoke to her but she kept walking. Lori stopped to retrieve a book of matches which she had dropped and was grabbed by the man, who said, "I am a police officer and I saw you stealing something in the Sun Drugstore." Lori identified the defendant in court as that man. The defendant asked Lori if she wanted to see his identification. When she responded that she did, the defendant said, "Shut up or I will shoot you." As Lori and the defendant walked into the alley, Lori saw a girlfriend and called her by name, but the friend continued walking. The defendant told Lori, "Act like you know me" and again threatened to shoot her if she did not keep quiet. Lori placed her hands behind her back and felt an object which felt like a sharp knife. At that time a car with its lights on entered the alley. Lori struggled with the defendant, shoved him away and ran home. Lori later spoke of Officer Ann Leybourne.
On September 4, 1974, Lori viewed a lineup and identified the man who attacked her in April. The witness identified the defendant, in court, as the man she had picked from that lineup. The witness examined People's Exhibit No. 3, a photograph of the line-up, and testified that the man she identified was in the number 2 position of the lineup.
In October, Lori saw the defendant again near her grade school. At that time Lori observed him sitting in a 1970 or 1971 green Dodge with a black top. She further testified that she had described her assailant to the police as a white male, 5'8" tall, about 140 pounds, with dark hair, thick sideburns, and a mustache. He was wearing dark clothes and a striped shirt. She had described her attacker's eyes as "bright" or "staring" but did not mention a color. Lori testified that she did not know the color of the man's eyes and she did not smell cologne or alcohol on the offender.
Susan [____] testified that on July 24, 1974, she was 15 years old, and at 10:15 p.m. on that evening, she left a McDonald's restaurant located at Harlem and Armitage Avenues and walked alone down Armitage toward her home. As she proceeded down the street she saw a man leave his car and walk toward a house. At 73rd and Armitage the man jumped out of the bushes, grabbed her by the hair and said, "I am sorry, honey, you are under arrest." Susan screamed as loudly as she could, whereupon the man dropped his hands and walked to his car. The witness identified the defendant in court as that man. Susan looked at the license plate on his car and screamed the number out loud. The defendant then told her, "I know who you are," and proceeded to get into his car. Susan testified that as she ran home she repeated the number to herself, which was GY 4537. She was able to remember it because the numbers were the first four numbers of her telephone number.
On August 20, 1974, Susan viewed a lineup and identified the defendant.
On the Saturday prior to her testimony at defendant's trial, Susan saw defendant Gonzales at the drugstore at 1600 North Harlem, where she works. The defendant stared at ...