Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Donald W. Morthland, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Macon County, defendant, Jackie Robinson, was convicted of rape, armed robbery and two counts of deviate sexual assault. He was sentenced to concurrent terms of 30 to 50 years on each of the four convictions. The appellate court affirmed (52 Ill. App.3d 658), and we granted leave to appeal.
Defendant contends that (1) he was substantially prejudiced by the admission of hearsay evidence to which no objection was made; (2) the jury was improperly instructed; (3) the evidence is insufficient to prove he committed a robbery while armed with a dangerous weapon; (4) his trial counsel was incompetent; and (5) his sentences are excessive. We affirm defendant's convictions and sentences.
The complainant, who testified as the State's last witness, indicated that on the evening of November 4, 1975, she met three girl friends at a Decatur nightclub. During the latter part of the evening, a black male sat at their table and carried on a conversation with Chris Jackson, one of complainant's girl friends. The man, from time to time, stared at the complainant.
At approximately 1 a.m., complainant left the nightclub. As she drove home, she was followed by a cream or light-yellow-colored car but, when she turned into the alley behind her garage, the auto following her continued down the street. As complainant prepared to close the garage doors, she was grabbed by a black male who shoved her up against the car door, pressed an object to her throat (causing a slight cut), and threatened to kill her if she said anything. Complainant never observed the object but thought it was either a small knife or a fingernail clipper. The assailant closed the garage doors and made the complainant lie on the garage floor. There, for approximately 1 hour and 45 minutes, he forced her to engage in various sex acts, including intercourse. During this time, complainant made no effort to escape or resist. Later, she was permitted to dress and told to sit in her car while the assailant went through her purse and took a $20 bill. Before leaving, he threatened to harm complainant if she told the police. Complainant remained in the car until dawn approximately 3 1/2 hours then went to her apartment, where she called her sister.
Complainant testified that, although the garage was dimly lit, she had sufficient opportunity to observe her assailant and the clothes he was wearing. She stated that her assailant was the same individual who visited her table at the nightclub. She was reaffirmed in this identification when the assailant said, "You are not going to tell Chris, are you?" Complainant identified the defendant as that man. She further testified that she selected defendant's picture from a group of photographs presented to her at the police station and that she also identified him in a police lineup. The prosecutor showed complainant a beige and burnt-orange striped sweater, and she identified it as one which had been worn by the person who sat at her table and later assaulted her.
On cross-examination, defense counsel established, among other things, that (1) both the garage and the nightclub were dimly lit; (2) complainant could not remember the description of clothing worn by her friends that night; (3) she never saw the weapon; (4) she made no effort to resist, escape or notify nearby residents by sounding the car horn; (5) she had never seen the defendant prior to that night and had only glanced at him at the nightclub; and (6) the cut on her throat did not bleed. Complainant was cross-examined on her statement to police which indicated that the assailant experienced difficulty in achieving an erection, and on her testimony at trial in which she said the assailant had intercourse with her. On redirect, complainant testified that she was afraid of her assailant because of his threats, and, therefore, did not resist.
Complainant's sister testified, without objection by defense counsel, that, at 6:30 a.m., she received a telephone call from the complainant. Immediately thereafter, she went with her husband to complainant's apartment. On arrival, the sister observed that complainant had a slight cut on her throat, her clothes were dirty, hair mussed and eyes swollen, and she was emotionally upset. The sister testified that complainant stated she had been raped and forced to submit to deviate sexual conduct in the garage, and that the person who sat at the table at the nightclub was her assailant. Police Officer Glick testified that he received a call from complainant at 7 a.m., and when he arrived at the apartment, complainant's sister and brother-in-law were present. He corroborated the sister's physical description of the complainant and then testified to the details of the crime as they were related to him by the complainant that morning. The State, also without objection, presented the testimony of two other officers: one established that complainant identified defendant's picture when shown a group of photographs, and the other stated that complainant identified defendant as her assailant at the lineup. The hearsay testimony described in this paragraph is that which defendant maintains deprived him of a fair trial.
Four witnesses testified that the complainant was with them at the nightclub, and that a black male visited their table; two were unable to identify the defendant as the visitor. Chris Jackson, one of the two witnesses who identified defendant as that man, stated that she had previously known the defendant, that he had come to the table and conversed with her, and that he left the nightclub four or five minutes after the complainant.
Following defendant's arrest, his auto, a white-vinyl-over-pale-yellow Thunderbird, was searched. A black sock containing a fingernail clipper was found therein.
Sergeant Hunk of the Decatur police department testified that he interviewed the defendant at the police station at approximately 10:30 p.m., November 5, 1975, the evening following the occurrence. After the interview, defendant was permitted to make a telephone call. Hunk stated that he overheard defendant tell the recipient of the call to "Get over to Jean's house and hunt clothing." In a warranted search of the home of defendant's girl friend, the police seized, among other things, a beige and burnt-orange striped sweater (the same sweater identified by the complainant at trial) and a sock which matched that found in defendant's auto.
Over objection, defense counsel elicited from Sergeant Hunk defendant's statements concerning his whereabouts on the night in question and the fact that defendant had stated that, after he left the nightclub, he went directly to his girl friend's house, arriving there at approximately 1:15 a.m.
James Bald of the Illinois Bureau of Identification testified that extraneous hairs, which, on directions from Officer Glick, complainant had combed from her pubic area, were found in tests to be pubic hairs with Negroid characteristics, and that stains on ...