APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
GARIPPO, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant, Kevin Hemphill, was found guilty of rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1), robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-1), and burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19-1). He was sentenced to concurrent terms of 20 to 60 years for rape, 6 to 20 years for robbery and 6 to 20 years for burglary.
On appeal, defendant contends: (1) that his guilt was not established beyond a reasonable doubt; (2) that the trial judge erred in his opening remarks to the jury when he stated that testimony would not be read to them during their deliberations because no transcript would be available for that purpose; (3) that in sentencing the defendant, the trial court failed to comply with the presentence report provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, pars. 1005-3-1 through 1005-3-4); and (4) that the sentences are excessive.
We affirm the defendant's conviction. We find it necessary, however, to vacate the sentences imposed and to remand for resentencing due to the trial court's failure to comply with the Unified Code of Corrections' presentence report provisions.
The victim testified that on August 12, 1975, at approximately 11:10 p.m., she was awakened in the bedroom of her third floor apartment at 78 East Elm Street, Chicago, by the sound of a clock radio falling to the floor. The bedroom had one window which was accessible to an alley below by means of a fire escape. As the victim opened her eyes, she observed a man, who she later identified as the defendant, climbing through her bedroom window. She screamed. The defendant leaped upon her, shoved a pillow over her face and warned "don't yell or I'll hurt you."
The defendant asked if there was any money or jewelry in the apartment. The victim responded that she had three dollars in her purse and some jewelry on the dresser. After rummaging through a jewelry box, the defendant asked what was in the other rooms. When the victim replied that there was a television set and a stereo, the defendant left the bedroom for two minutes. During this time, the victim was lying still in the bed, her face covered by the pillow.
When the defendant returned, he walked to the bed, removed the victim's underwear and against her will performed an act of intercourse. Upon completion of the act, the defendant stood up on the right side of the bed and, while facing the victim, began to dress. The victim testified at the preliminary hearing that the defendant was standing within her reach, but recanted that testimony at trial when she stated that he was standing at the foot of the bed.
While the defendant was dressing, the pillow that had covered the victim's face slipped off, allowing her to view him for approximately one minute. Although there were no lights on in the apartment, the bedroom was illuminated by flood lights which were attached to the building's exterior wall and located near the bedroom window and by lighting in the alley below. This illumination allowed the victim to discern everything in the bedroom, including the pictures on the wall.
When he finished dressing, the defendant picked up the television set, told the victim he had to meet "the others" and warned her not to call anyone for 15 to 20 minutes. The defendant then climbed out the bedroom window onto the fire escape and left. The entire incident lasted approximately 20 minutes.
Following the defendant's departure, the victim remained in bed for five minutes and then got up and called police. When the police arrived at the apartment she could only describe her assailant as a black man. She was then transported to Henrotin Hospital where vaginal smears confirmed the presence of human spermatozoa. Upon completion of the test, she was taken to the 18th district police station where she told police her assailant was wearing dark trousers and a peach-colored jersey-type shirt with long sleeves.
Chicago Police Officer Ken Lunsford testified that on the night of August 12, 1975, he responded to a radio dispatch of a burglary in progress at 77 East Division Street; the dispatch included the description of a suspect car. After turning east on Division, Officer Lunsford spotted a car traveling west that fit that description. He made a U-turn and pulled the car to the curb. This stop occurred at 11:35 p.m. approximately 1 1/2 blocks from the victim's apartment.
The defendant was in the back seat of the car with a television set beside him. He was wearing dark trousers and a "pinkish" colored pull over shirt with long sleeves. Two other occupants, William Rufus and Floyd Williams, were in the front seat. Officer Lunsford ordered the three men out of the car and searched them. Three one dollar bills were taken from Rufus' right pants pocket and $111 from his sock. When the officer searched the car, he found a watch and screwdriver on the floor of the back seat.
The three men and the property were transported to the 18th district police station, where the victim was still being questioned. The victim identified the television set, the watch and the three dollars seized by Officer Lunsford as the property taken from her apartment. She was then asked if she would be able to recognize her assailant. She said she would. Officer Lunsford told her three men had been arrested with her property in their car.
Approximately two hours after the victim had been raped, a five-man lineup was conducted. Officer Lunsford testified that at the time of the lineup the defendant's outer shirt had been removed and he was wearing only a T-shirt. The victim viewed the lineup and positively identified the defendant as her assailant. She also identified the defendant at trial.
Following the close of the State's case, the defense called as a witness Emily Moore, the defendant's girlfriend. She testified that she was with the defendant on the night of August 12, 1975. They had walked together through the gold coast and old town areas of Chicago before stopping at a Hasty-Tasty restaurant located at the intersection of Clark and Division. Although Ms. Moore testified on direct that the defendant was wearing blue jeans and a T-shirt that evening, she admitted on cross-examination that she could not recall what he was wearing. She testified that when they left the restaurant, the defendant entered a car which was driving by. She then walked home alone.
William Rufus testified that on the night of August 12, 1975, between 9:30 and 10:30 p.m., he was driving his father's car and had dropped some friends off at a downtown movie theatre. As he was heading towards home, north on Clark Street, he spotted Floyd Williams carrying a television set. Rufus ...