APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT
McKAY, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
After a jury trial Richard Hastings, Kenneth Oglesby, Mark Pierchalski, and Michael Nitz were convicted of deviate sexual assault. Mark Pierchalski was also convicted of rape. Pierchalski was sentenced to serve 30 to 60 years imprisonment. Hastings was sentenced to serve 20 to 60 years, Nitz was sentenced to serve 6 to 18 years, and Oglesby was sentenced to serve 9 to 27 years and fined $2500. All defendants appealed and their cases were consolidated for purposes of this appeal.
On appeal, all defendants argue (1) that they were denied a fair trial due to evidentiary rulings precluding Pierchalski from introducing evidence of his prior relationship with the complainant and statements made by her during the alleged incident; and (2) that their sentences are excessive. Additionally, Hastings, Oglesby, and Nitz argue (3) that the trial court erroneously denied their motion for severance; (4) that they were denied a fair trial due to improper cross-examination and prejudicial remarks made by the prosecution; and (5) that they were denied a fair trial due to the prosecutor's comment on their failure to testify during closing arguments. Lastly, Hastings argues (6) that he was denied effective assistance of counsel since he and Pierchalski were represented by the same attorney and their defenses were antagonistic.
We affirm and modify in part.
Defendants Mark Pierchalski, Richard Hastings, Kenneth Oglesby, and Michael Nitz were all charged with the rape and deviate sexual assault. Greg Wisowaty was also charged with deviate sexual assault, but was subsequently found not guilty. At trial and prior thereto, defendants Pierchalski, Hastings, and Wisowaty were all represented by the same attorney. Defendants Nitz and Oglesby were represented by a public defender.
Prior to trial, counsel on behalf of Hastings and Wisowaty moved for a severance and separate trial from defendant Pierchalski. Hastings and Wisowaty alleged that Pierchalski had made a statement implicating them and further indicated Pierchalski's defense would be antagonistic to theirs. Defendants Nitz and Oglesby then filed similar motions for severance raising the same allegations as Hastings and Wisowaty. The trial court subsequently denied these motions based on the State's representation that Pierchalski's statement would not be used during the trial.
During the hearing on the motion for severance, counsel on behalf of Hastings and Wisowaty, renewed its motion for severance because Pierchalski was going to testify. Their counsel stated:
"There is no doubt that he [Pierchalski] would tell the truth when he says that he didn't do it. But he's going to say that the other people did. That cannot be allowed. He cannot testify to it. That, in effect, is the problem and it cannot be cured."
The court then entered the motion and continued it with the case "until such time as it becomes apparent that there is a clear danger to one of the other defendants and one of them could be prejudiced."
The State successfully sought a motion in limine precluding the introduction of any evidence of prior sexual relations between the complainant and any of the defendants. Also precluded were prior sex acts between the complainant and nondefendants.
The complainant testified that on March 18, 1976, she attended a party at the Wisowaty residence in Calumet City, Illinois. She had been invited to the party by defendant Pierchalski who had telephoned her and stated that he was a friend of Benny Johnson. Complainant conjectured that Pierchalski must have gotten her phone number from Johnson.
She testified that she was driven to the party by Pierchalski, who was accompanied by Tim Milligan. They arrived at the party at approximately 9:30 p.m. Upon entering the Wisowaty residence, the complainant observed defendants Nitz and Hastings drinking in the living room. She proceeded into the kitchen where she made herself a drink. She stated that after a while, another person, whom she identified as defendant Oglesby, came into the kitchen.
Complainant testified that approximately one hour after her arrival, she went into the bathroom. Upon coming out, Pierchalski allegedly pushed her into the bedroom and ordered her to disrobe. She stated that defendant Nitz was also in the room and prevented her from leaving. When she refused to cooperate, Pierchalski allegedly struck her. Thereafter, she took off her clothes and had intercourse with him. She further testified that Pierchalski forced her to perform oral copulation and submit to anal intercourse.
When Pierchalski had finished, Oglesby and Hastings came into the room and forced the complainant to perform oral copulation. Pierchalski then re-entered the bedroom and climbed into the bed with the complainant and the other four men. He again forced her to perform oral copulation with him.
The complainant testified that she was finally allowed to get up and go to the bathroom. She put on a robe that was hanging in the bathroom and attempted to climb out of the window located above the bathtub. However, as she attempted to escape, she was discovered by Pierchalski and Hastings who dragged her back into the bedroom and again forced her to perform oral copulation.
Finally, Pierchalski ordered her to get dressed and warned her that her throat would be slit if she told anyone what had happened. As she left the house accompanied by defendants Pierchalski, Hastings, Nitz and Oglesby, she ran to the house next door and screamed for help. She stated that as she began screaming for help, Hastings ran up behind her and began hitting her. She was then dragged into the back seat of a waiting car and driven back to her home in Hobart, Indiana. During the trip, Hastings again forced her to perform oral copulation and threatened to kill her if she did not comply to his satisfaction. The defendants finally released her when they were approximately one block from her home.
At the conclusion of the trial, the jury found Pierchalski guilty of rape and deviate sexual assault. He was subsequently sentenced to serve 30 to 60 years imprisonment. Defendants Hastings, Oglesby, and Nitz were found guilty of deviate sexual assault. Wisowaty was found not guilty of all charges. Hastings was sentenced to serve 20 to 60 years imprisonment. Nitz was sentenced to serve 6 to 18 years imprisonment. Oglesby was sentenced to serve 9 to 27 years imprisonment and also fined $2500. Defendants appealed. On appeal, Pierchalski raises issues different than those raised by the other defendants. We shall consider his contentions first.
Pierchalski first argues that he was denied a fair trial due to evidentiary rulings that precluded him from introducing evidence that supported his defense of consent. (Co-defendants Hastings, Oglesby and Nitz had adopted this argument and incorporated it by reference into their arguments.) In support of this contention he first cites the granting of the State's motion in limine that precluded evidence concerning his prior sexual relationship with the complainant. He argues that although Benny Johnson, a defense witness, was allowed to testify that the complainant's reputation for chastity was bad, he was prohibited from answering a question about prior occasions when the complainant and Pierchalski were together. An objection was also sustained when ...