APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendants were convicted of rape, armed robbery and burglary. (Ill. Rev. Stat. 1975, ch. 38, pars. 11-1, 18-2 and 19-1.) They were sentenced, for the rape and armed robbery to concurrent terms of 40 to 100 years, and for the burglary to concurrent terms of 6 to 20 years. On appeal they contend that: (1) they were not proven guilty beyond a reasonable doubt; (2) the trial court erred in giving the jury an accountability instruction; (3) the trial court erred in admitting a photograph of them into evidence, and (4) certain prosecutorial misconduct denied them their right to a fair trial.
The following pertinent evidence was adduced at trial.
Theodore Madsen, Chicago Police Officer
On April 8, 1974, he was in uniform in a marked car, patrolling with his partner, Anthony Baldassano. At approximately 5:45 a.m. they received a radio call directing them to 525 West Hawthorne, which was a big apartment complex approximately four blocks away. Upon arriving at the scene, he let his partner out by the front door, drove east, and parked his car so that it completely blocked the driveway which led from the garage at the side of the building. He then exited his car and saw a vehicle's headlights shining through the garage door. He walked up to the door, and saw two persons wearing dark clothing and bright objects on their heads standing to the rear of the car, which was a white over red Cougar. After a very brief moment, they ran away from him. He went back to his car, drove it so it directly blocked the vehicle in the garage, and then went back to stand by the garage door. He entered the garage some 30 minutes later and saw that the vehicle inside was loaded with clothing and various other items. He moved the vehicle, which had its keys inside, to the east side of the garage, and remained with it until the evidence technician arrived.
On cross-examination he acknowledged that he saw only the backs of the two individuals in the garage.
Anthony Baldassano, Chicago Police Officer
After he and Officer Madsen arrived at 525 West Hawthorne, he entered the apartment building through an inner door which was locked but which was opened for him by the doorman. He asked the doorman if anyone had exited the building and he replied "No." He then went up in the elevator to apartment 2001, where he knocked on the door and identified himself as "the police." Carol Brown, who was crying hysterically, opened the door, hugged him and said, "Thank God, you are here." He followed her into the living room and noticed that clothes were thrown all over the floor and other things had been knocked over. He saw Sarah and Allyn Robinson lying on the floor. Allyn Robinson's head and mouth were wrapped with tape, and his and Sarah's hands were bound. A Sergeant Curry arrived, and cut their bindings. He left Sergeant Curry with them and went down the stairway. After he looked around some of the hallways on several different floors to see if anyone was there, he returned to the apartment. He later went down to the garage, which he searched with other police officers. He then returned to the apartment, from which he took Carol Brown, Sarah Robinson and Allyn Robinson to St. Joseph's Hospital.
On cross-examination he admitted that he had met defendant McNair twice before the incident. He recalled that his was the first Chicago police car to arrive at 525 West Hawthorne.
Richard Curry, Chicago Police Officer
On April 8, 1974, he and his partner, Officer Siles, were patrolling in a marked vehicle. At approximately 5:45 a.m., pursuant to a radio call, they went to 525 West Hawthorne. While his partner stayed downstairs by the front door he went up to apartment 2001. There he saw Officer Baldassano and Carol Brown, who was crying. He also saw Allyn and Sarah Robinson lying on the floor. Allyn's hands, feet and head were bound with tape, and Sarah's hands and feet were bound with nylon stockings. After he freed them, Sarah Robinson began yelling for her baby. They found the baby on the floor in the dining area, and Sarah Robinson picked it up. Carol Brown told him that during the incident, one of the individuals had mentioned the name "Bobby," and that the shorter of the two men had an accent. Scattered on the floor of the apartment was more tape which looked like the tape that was bound around Allyn Robinson's head. That tape had hair sticking to it.
On cross-examination he acknowledged that the statement in his police report that he was the first officer on the scene was incorrect.
On April 8, 1974, he was the building engineer at 525 West Hawthorne. The building's garage was then opened electronically by a box into which magnetic cards were inserted and a current which opened the garage door was sent out. The car entering the garage would cause the door to close automatically after approximately 20 seconds. People who have a stall in the garage are issued cards. A person could get into the building through the entrance door and corridor at each of the garage's levels, and could then take the service elevator up to the 20th floor and apartment 2001. At approximately 6 a.m. on April 8, 1974, some police officers called him down to the lobby and then to the bicycle or buggy room in the service area. He used his keys to open the locked door to that room. Only the tenants of the building had keys to that room. He entered the room, turned on the light, and saw what looked like dark slacks lying on the floor behind some bicycles. He left the room and said that he saw someone in the back. While the police officers went into the room, he went down the hall to the front lobby. He later saw the police officers leaving that area with individuals who were wearing dark slacks, but were not wearing ski masks.
On cross-examination he acknowledged that there were four other building engineers under his supervision. He acknowledged that there are a series of doors along the corridor in which the bicycle and buggy room is located. The first door on the east, which is not locked, leads to the compactor room, where there is another door, locked and bolted from the inside, which leads to the outside. There is another door exactly opposite the bicycle and buggy room which leads to the outside. The service personnel are supposed to double lock it in the evening and open it in the morning. When so locked, it cannot be opened from the inside or the outside. He could not recall whether he personally locked that door on April 7, 1974. There is another door in the service area which leads outside. It is locked from the inside from 8 p.m. to 8 a.m. That was his responsibility, and he recalled that he did check all the doors on April 7, 1974. Other doors in the area lead to the garage and the swimming pool.
On redirect examination he testified that between 8 p.m. on April 7 and 8 a.m. on April 8, 1974, no doors were unlocked. The only way to enter the building at that time was to be let in the front door by the doorman, or put a card in the garage box to open the garage door. Although he could not recall whether he personally locked the door across from the bicycle and buggy room on the night of April 7, 1974, he knew that this door was locked.
On re-cross examination he acknowledged that on April 8, 1974, he did not find that any of the building's exterior doors had been tampered with.
On April 8, 1974, she lived in a one-bedroom apartment at 525 West Hawthorne. She had a plastic card to open the building's garage door. At approximately 2 a.m. her friend Allyn Robinson used her card to open the garage door, drive her red Mercury Cougar into the garage, and park. After they exited the car, as Allyn Robinson approached her, he yelled, "Oh my God." She turned around and saw a tall man, approximately 6'1", who was wearing dark clothing, a gold ski mask, and carrying a gun which looked like a German lugar. Next to him was a shorter man, approximately 5' 8", who was wearing blue jeans and red tennis shoes. The tall man told them to get down, and keep their heads down and eyes closed. The two men then taped their hands behind their backs. The short man wrapped some tape around her head and neck, although he missed a portion of one eye and part of her mouth. Allyn's head was also wrapped with tape. The tall man asked them for money, but she told him she didn't have any. The short man took a gold ring and turquoise pendant she was wearing. He also took her purse. The tall man in the gold ski mask then asked her where she lived. Because Allyn's wife Sarah and their baby Emil were staying in her apartment, she lied and said she lived in 1603. She heard the short man call over the tall man and whisper to him, "Look, she lives in 2001." The tall man then returned, hit her, and, as she fell against the car, said "Okay, bitch, let's try it again." She admitted that she lived in 2001. The man asked Allyn who was up there, and Allyn said that his wife and baby were in the apartment. After a few minutes, she heard the trunk of the car being opened and the tires she had in there being taken out. The men put her in the trunk of the car, bound her feet, and taped them to her hands. They placed Allyn in the trunk on top of her. The tall man told her that if nobody was in her apartment he would kill her, and that if they talked he would shoot them through the trunk. After approximately 20 minutes the trunk opened, they were taken out, and the bindings on their feet were cut. Her feet were "asleep" and she couldn't walk. The tall man said to her "What's the matter with you, bitch, can't you walk?" When she told him that she had just gotten out of the hospital and was very weak, he said, "If you don't walk straight I'm going to kill you." They took them up in the freight elevator to her apartment. The short man tied a pillow case tightly around her neck, bound her feet again, took her into the living room where Sarah and Allyn and the tall man were, and pushed her down on the floor. They asked her for money, and she said she didn't have any. They took her into the bedroom, freed her hands and feet and took the pillowcase off her head. They asked again for money and she told them that neither she nor the Robinsons had any. The tall man said, "Your little girlfriend is beginning to look pretty good to me." When she said that she would do anything to protect her friend but that she didn't have any money, he said "If you don't give me your money, I'm going to kill you, bitch, I have killed before." She said that she had a color T.V. and maybe some jewelry, but didn't have any money. The short man then bound her hands behind her back and took her to the bathroom. He told her to sit on the toilet, which she did. He started removing the tape from her hands and head, and in doing so yanked out some of her hair. It was very painful, and she fell over. He tied her hair on her head and pulled off her sweater, bra and pants. He pushed her on the floor, but when she hit her head on the bathrub he yanked her back and said, "Can't you lie down?" She said she could not because her neck was bandaged after some surgery. He placed something under her head and said "If you don't make it good I'm going to kill you, bitch." He then got on top of her and performed an act of sexual intercourse without her consent. She heard him say "What's the matter with you, are you dead?" and then she blacked out. When she woke up, the tall man and short man were talking together. They talked in the bathroom, and then went into her bedroom, from where she could hear drawers opening and closing. After about 20 minutes she heard the front door open and close and when she didn't hear anything else, she thought the two men had gone. She started to get up, but the short man appeared, said "Where do you think you are going, bitch?" and yanked her into the hall. He told her to lie down, and said "Here is something for you," and "Try to make it good this time." He then began to perform another act of sexual intercourse upon her without her consent. During the act, the front door opened and he stopped. He called out a name that sounded like "Ruby" or "Roddy" and asked, "Is that you?" After he received no answer, he called out again and said, "It's me, it's me, it's Bobby." She heard the tall man yell, "Shut up." The short man completed the act of sexual intercourse, and then went to the tall man and asked him what time it was. The tall man said it was five after five. She heard them gathering things in a suitcase, after which the short man came back and tied her hands and legs with nylons. The tall man said, "We are going to load the car. I'll come back and get this bitch and kill that bitch." The two men left the apartment.
She listened until she was sure they were gone, then managed to free herself and run into the bedroom. She plugged in the phone and called the police. She was hysterical, and because she was afraid they wouldn't come if she said it was a rape, she said that a burglary was in progress, and gave her name and address. A few minutes later she heard a knock on the door, and a man's voice said, "This is the police." After he showed her his badge through the peephole, she opened the door, grabbed him, and said, "Thank God, you are here, and they are still here in the building." Other police officers arrived, including a Sergeant Curry, who untied or cut loose the bindings on Allyn and Sarah Robinson. She was later taken to St. Joseph's Hospital, where she told the doctor that she had been raped twice. After taking some vaginal smears, he gave her something in case she was pregnant, and also gave her some shots. She identified two gold rings, a lighter and a key ring as items that were taken from her on the night of the incident. She also identified as taken from her two keys, one of which opened her apartment and the other of which opened the front door, the bicycle room door, and the other doors in the building. She also identified a photograph of her color television, which was taken from her without her permission on the night of the incident.
On cross-examination, she admitted that she could not see which of the men took the keys from her purse, opened the trunk, or opened the door to her apartment. She acknowledged that she gave a glass to one of the policemen examining her apartment. She did this because she had asked the short man, who was not wearing gloves, to give her a drink of water. He gave her some in a glass, which she left in the corner of the bathroom. She acknowledged that no police officer asked her about the glass. She recalled that she did not see the glass when the short man gave it to her because she was blindfolded, and stated that while the glass she gave the policeman might have been another one, the one in his hand seemed like the one she used. She acknowledged that a number of other objects including coats which were later returned to her were also taken from her apartment. She did not know if a Timex watch was taken from her apartment but if it was, it was not hers.
Robert Pasternak, Chicago Police Officer
On April 8, 1974, pursuant to a radio transmission, he and his partner, Kenneth Keeley, went to 525 West Hawthorne at approximately 6 a.m. He and Keeley entered the building and talked to a Sergeant Vaughan in a T-shaped hallway next to the lobby. They saw an Officer Cyrek and the building's janitor, Tony Gebert, in the hallway. Gebert left and returned a few minutes later with some keys, Gebert opened the locked door to the bicycle and buggy room, turned on the light and went inside. He quickly came running out of the room and yelled that "They were in there." Officers Pasternak and Keeley then ran into the room. They saw, getting up from the floor, a tall man wearing a gold ski mask and a small man wearing a red ski mask and red gym ...