APPEAL from the Circuit Court of Cook County; the Hon. FRANK
W. BARBARO, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Co-defendants Michael Richardson and Ernest Jenning were tried together before a jury, and found guilty of burglary, armed robbery, and deviate sexual assault involving two women which occurred on February 11, 1976. They both were sentenced to serve 5 to 15 years for burglary and two concurrent terms of 40 to 65 years for armed robbery and deviate sexual assault, with the burglary sentence to be served concurrently with the other sentence. Although Richardson also was found guilty of unlawful restraint, he was not sentenced for this offense. The two defendants have filed separate briefs on appeal; Richardson has appealed only his convictions, while Jenning has appealed the length of his sentence, as well as his convictions.
Several parts of the proceedings which occurred prior to the trial are relevant to this appeal. First, on the day the case was set for trial, and after Richardson had previously been warned that he would not be granted any further continuances, his counsel asked the court to conduct a fitness hearing for his client. The State objected to this and, in response, introduced a transcript of a hearing which had occurred 2 weeks earlier, and contained a colloquy between Richardson and the trial judge as to whether Richardson was prepared for trial. The State also pointed out that Richardson had been in court eight times previously, and never had requested a competency hearing.
Richardson's counsel then informed the court that Richardson could not help in the preparation of his case, and that from 1972 to 1973 Richardson had been hospitalized in the Tinley Park Mental Health Center. The counsel stated that a Cook County sheriff's record concerning Richardson's admittance into the county jail on June 5, 1975, indicated that Richardson had attempted suicide.
After stating that he had observed the conduct and demeanor of Richardson, and had heard the transcript of proceedings which took place 2 or 3 weeks previously, the trial judge ruled that Richardson understood the nature of the charges and was able to cooperate with his counsel. Therefore, he denied Richardson's request for a fitness hearing. Subsequent motions presented by Richardson's counsel for a psychiatric examination one before trial, one during trial, and three after judgment was entered also were denied.
On the next day, the trial judge held a hearing on Richardson's motion to suppress a statement he had made during post-arrest questioning by the police. At that hearing, Officer Frank Goff testified that he shot at Richardson in the apartment where the crimes took place. Officer Goff stated that although he saw Richardson fall back after the shot, at that time he had no idea that Richardson had been shot. Officer Goff further said that after the shooting, he handcuffed Richardson, placed him under arrest, and transported him to the police station.
At this hearing, Officer Goff also testified that he questioned Richardson at the police station after the arrest. During this questioning, Officer Goff said they were seated at a table in front of the interrogation room while two other policemen were conversing at the back of the room about 20 feet away. According to Officer Goff's testimony, neither of the other policemen took part in the conversation. Officer Goff testified that after Richardson had been advised of his rights, and Richardson admitted he understood them, he asked Richardson what he was doing in the apartment, and Richardson made an oral admission. Officer Goff stated that, after taking Richardson to the station, he discovered that Richardson had been grazed by a bullet at the apartment, but that there was no evidence of a wound, and Richardson never told anyone he had been shot until he reached the police station. Finally, Officer Goff testified that Richardson made his admission, and was then taken to the hospital for treatment.
Officer Goff was the sole witness at this hearing on the motion to suppress, at which Richardson failed to object to the fact that the two other policemen did not testify. Richardson did not testify at this hearing. After hearing Officer Goff's testimony, the trial judge ruled that Richardson had made a voluntary statement to Officer Goff with knowledge and understanding of his rights. The trial judge then denied Richardson's motion to suppress the statement.
At trial, testimony was heard from the two complaining witnesses, the victim of the sexual assault (herein referred to as "the victim") and her roommate (herein referred to as "the roommate") who shared an apartment on the date of the offense. The victim testified that at about 7 p.m. that evening, as she was returning to the apartment after doing some grocery shopping, she noticed two men following her. She walked the 5 1/2 blocks to her apartment, but as she entered the courtyard of her building, one of the men asked her what time it was. She looked at her watch and then saw that one of the men was holding a gun. She identified Jenning and Richardson as the two men, testifying that Richardson held the gun and did all the talking.
The victim then was ordered into the vestibule, and Jenning obtained her billfold from the bag of groceries she had been carrying. He took the money out and gave it to Richardson. Richardson demanded the victim's watch and then asked if she lived alone. She said that she did not live alone, and, in response to Richardson's questions, said that her roommate was a female who was probably not in the apartment. Richardson next ordered the victim to take them to the apartment.
Her roommate testified that when the victim and the two men entered the apartment, she was talking on the long-distance telephone to her mother in Maine. In her trial testimony, the roommate identified the two men as Richardson and Jenning. After seeing Richardson, the roommate exclaimed, "Oh, my God, he has got a gun." Richardson then announced a holdup and ordered her to hang up, and she obeyed him.
The roommate's mother testified that at the time in question she was in the State of Maine, talking on the telephone with her daughter. After her daughter hung up, the mother called the Chicago police to report the conversation with her daughter, and the police informed her they would "call her back and let her know."
The testimony of both women established that after the roommate hung up the phone, Jenning picked up her pocketbook and emptied its contents on the bed. Jenning took a jackknife and some traveler's checks. When the phone rang, Richardson told the roommate not to answer it. The victim asked if she could put her groceries down and Richardson followed her to the kitchen.
Jenning then pulled the phone out of the wall. He led the roommate into the living room where he pulled another phone out of the wall, and then took the roommate back to her bedroom. Richardson and the victim returned to the roommate's bedroom, and Richardson told Jenning to tie up the roommate, stating, "I am going to shoot her right now." However, though Jenning pulled down the window shade, he was unable to find any rope, and the roommate was never tied up. Richardson and the victim then returned to her bedroom while Jenning watched the roommate. Jenning asked the roommate if she wanted to go to bed with him, and when she refused, he put his hand in her bra and down her pants, looking for money. In the meantime, in the bedroom, Richardson threatened the victim, ordered her to disrobe, and compelled her to commit a deviate sexual act. He then left the room, stating that if the victim moved he would shoot her.
Richardson returned to the other bedroom, grabbed the roommate, threatened her with a gun and ordered her to kiss him. Richardson then struck her in the face with his gun. As she fell to the floor he hit her again on the back. Richardson told Jenning to tie the roommate up so he could kill her. Jenning then told Richardson to leave and that he would take care of the roommate himself.
The roommate testified that after Richardson left, Jenning said, "See how nice I am. Don't you want to go to bed with me?" She again refused and suggested that they go cash the traveler's checks at a grocery store. Jenning talked with Richardson and decided to go with the roommate to cash the checks. Richardson told her she had better hurry because Jenning had a gun in his pocket, and if she was not back in 3 minutes he (Richardson) would kill the victim. The roommate did not know whether Jenning had a gun but said that he kept his hand in his pocket.
The victim testified that after Jenning and her roommate left, Richardson made her lie on the bed and he performed another deviate sexual act. She heard noise in the courtyard and then the buzzer in her apartment rang. Richardson told her to go to the door and tell whoever it was that she was in the tub. She went to the door, followed by Richardson, who was pointing a gun at her head. She opened the door, ran out, yelled for help, and saw that there were several police officers at the door.
Officer Goff testified that after ordering Richardson to drop his gun, Richardson aimed at him and tried to slam the door. Officer Goff fired once through the doorway, but did not know at the time whether he had shot Richardson. At this time, Richardson did not mention that he ...