APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant Duncan Stacker was charged by information on May 17, 1979, with one count of rape and two counts of deviate sexual assault. The case was tried to a jury which found him guilty of those charges. Stacker's motion for a new trial was denied, judgment was entered on the verdict and he was sentenced to from 8 to 12 years in the penitentiary, from which judgment and sentence he appeals.
Three issues are raised on appeal: (a) whether there was error in giving the jury an instruction that could have suggested defendant had confessed to more than one crime; (b) whether defendant was denied a fair trial because two witnesses made statements suggesting that there existed other "victims" of defendant's activities; and (c) whether the mittimus issued is in conformity with the verdicts.
The victim, age 18 at the time of trial, testified that at about 2 p.m. on March 30, 1976, upon returning home from school, she was approached by a man in front of her house. The man, who the victim later identified as Stacker, asked her, "what's happening," to which she replied, "nothing." Thereupon defendant seized her, forced her into her backyard at knife point, directed her to a concrete space under the back porch, and forced her to remove her clothing, some of which he removed himself. Then, while still holding the knife in his hand, he had anal intercourse with her then forced her to take his penis in her mouth and thereafter rub his penis with her hands. At this point, she attempted to escape but he again seized her and threatened to kill her if she tried to escape, and thereafter had genital intercourse with the victim. After replacing his own clothes and warning her not to tell her mother or police what had happened, he left the area. During the time of confrontation she was able to see his face and clothing, which she described as a brown knit cap, brown pants and a brown jacket.
The victim put on her coat and ran toward the street where she saw a woman whom she told she had been raped. The woman escorted her back to her home, a neighbor arrived, the police were called and upon their arrival they were told by the victim of the attack. She was taken by the police to the Jackson Park Hospital where she was examined and treated. On the following April 6, the victim viewed a police lineup. Although she was reluctant to tell police that she recognized him because she feared whatever consequences might ensue from that identification, she positively identified defendant standing in the lineup as her assailant. She later went to the doorway of a separate room in which defendant was standing and again identified him.
Investigator Maurice Sykes, a police officer, testified that he was assigned to the Area 1 Homicide Unit of the Chicago Police Department on April 6, 1976. On that day he and his partner, John Merriwether, drove the victim and her mother from their home to Area 1 Homicide headquarters where she was secluded in a room while Sykes gathered together a lineup of five men, including defendant. Stacker elected to stand in the center of the lineup, at position number 3. The victim thereafter viewed the lineup through a two-way mirror and having first ruled out those men occupying positions numbered 1, 2, 4 and 5, she positively identified defendant, occupying position number 3, as the man who had assaulted her.
Sykes thereafter interviewed Stacker in an interrogation room alone, read him "Miranda warnings" relative to his constitutional rights, which defendant told him he understood, and advised Stacker that he had been identified as the offender by the victim in this case. Sykes testified that he then asked Stacker "* * * if he wished to identify any victims of his." An objection to this testimony was sustained, the answer was stricken, and the jury directed to disregard the answer. Sykes then asked Stacker if he could identify the specific victim and Stacker viewed her through a two-way mirror as she sat in an adjoining room with her mother and another woman. Stacker identified her as the girl he had raped near 73rd Street and Oglesby Avenue after having forced her under a porch, caused her to disrobe, and to lie down upon her coat. Sykes asked Stacker "* * * if anything else was done and he nodded in the affirmative. I asked him what and he would not reply." Later, when the victim was brought to the doorway of the interrogation room Stacker again identified her as the person he had raped.
On cross-examination, Sykes testified that none of the conversations which he had described on direct examination were included in the police report prepared by him and his partner and that no question and answer form of statement was taken from defendant. When asked by defense counsel, whether any civilians aside from law enforcement personnel were permitted to talk to Stacker while in custody, Sykes replied "one of the other victims" had talked to defendant at the police station on the day of the lineup. The defense moved for a mistrial on the ground that the witness, contrary to previous defense motion in limine, had mentioned other victims during the course of his testimony. The motion was denied by the court on the ground that the response of the witness was invited by defense counsel.
Officer Guy Holec, a Chicago police officer, testified that upon hearing a radio call, he and his two partners drove to the vicinity of the 2300 block of east 72nd Street where he had a conversation with a police officer and a woman, whom he named. Although this woman had been allegedly assaulted by defendant in an earlier incident, no mention of this fact was made by the witness. The defense objected to the mere mention of this woman's name as being contrary to a ruling on a defense motion in limine to prevent testimony concerning her from being elicited during the course of the instant trial. The objection was overruled on the ground that no testimony regarding the commission of any crime involving the woman was elicited and that her name was mentioned only with regard to what the officer did upon receiving the call. A defense motion for mistrial for the same reason was also denied. Holec testified that after the conversation, he and his partners began to tour the neighborhood and within five minutes saw defendant walking down the sidewalk at about 7235 S. Oglesby and placed him under arrest.
Dr. Betty Chua testified for the State that she had examined the victim at the Jackson Park Hospital on March 30, 1976. She found that the victim's hymen was recently ruptured and that she sustained a superficial laceration of the anus. She took anal, oral, cervical and vaginal swabs during the examination, from which slides were prepared consisting of smears from those areas.
Rodney Blach, employed as a micronanalyst at the Chicago Police Department Crime Laboratory testified that he received a sealed white envelope from Jackson Park Hospital bearing the name of the victim and an evidence inventory number. He removed a number of slides each marked with a word, cervix, oral, vaginal and rectal. After following certain laboratory procedures, he found evidence of spermatozoa on each of the slides, *fn1 indicative of the presence of human semen.
Assistant State's Attorney Sander Klapman testified that on April 6, 1976, he was assigned to the felony review unit of the State's Attorney's office. At about 11 p.m. on that date, he spoke to Investigator Sykes and the victim, and then to defendant alone. After advising him of his constitutional rights, he interrogated Stacker who admitted to him that he had had intercourse with the victim but would not say what other acts had been performed. Klapman then brought the victim into the room and Stacker stated that she was the girl he had spoken about. He also asked the victim if Stacker was the man who had raped her and she answered in the affirmative.
Leone Becker, a police woman, who since that time had retired, testified that while on duty on March 30, 1976, at about 2:30 p.m. she spoke to the victim who told her that she had been raped, gave her the details of the occurrence and a description of her assailant as 5'10" tall weighing 140 pounds, age 19 or 20 and wearing a brown jacket and pants and a knit hat with a white band.
The parties stipulated that at the time of trial, defendant was 19 years of age. The defense moved for a ...