APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. SAMUELS, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Defendant, Thomas P. Walsh, was arrested and charged with two counts of aggravated kidnapping and one count of deviate sexual assault. After a jury trial, defendant was found guilty as charged. The court entered judgment on each verdict and sentenced defendant to two concurrent extended terms of 60 years on the aggravated kidnapping convictions but failed to sentence defendant on the deviate sexual assault conviction. Defendant appeals.
The following issues are presented for review: (1) whether defendant was proved guilty of aggravated kidnapping and deviate sexual assault beyond a reasonable doubt; (2) whether the prosecutor's argument was improper and exceeded the bounds of fair comment on the evidence; (3) whether defendant was denied a fair trial because the jury may have seen him in handcuffs; and (4) whether the cause should be remanded to the trial court for sentencing on the deviate sexual assault conviction and for proper sentencing on the aggravated kidnapping convictions.
For reasons hereinafter set forth, we affirm the convictions and remand in part for further proceedings not inconsistent with this opinion.
The following testimony was adduced at trial: *fn1
George Connors, father of the victim, Christine (Tina) Connors, testified that on the evening of September 28, 1977, at approximately 11 p.m. he received a telephone call from his former wife inquiring as to Tina's whereabouts. After speaking with Tina's mother, Mr. Connors searched for his daughter in a number of places, including her place of employment, but was unsuccessful in his attempts to find her. Mr. Connors notified the police of Tina's disappearance at approximately 10 a.m. on September 29, 1977. That evening he was informed by police that Tina's automobile had been discovered at a laundromat on 171st Street in Tinley Park. Later that same evening Mr. Connors received a telephone call from Tina's boss summoning him to the restaurant where Tina worked. When he arrived, Mr. Connors observed that his daughter was in a "very nervous state" with her hair in disarray and her clothes wrinkled. Tina ran to her father, threw her arms around him and cried, "Oh, Daddy, Daddy he hurt me so bad." Mr. Connors further testified that Tina "had never been missing" prior to this incident.
Christine Connors testified that she was 18 years of age and lived with her mother in Orland Park at both the time of trial and during September 1977. On September 28, 1977, at approximately 1 p.m. Ms. Connors drove to the Country Lane Laundromat on 171st Street in Tinley Park and parked her automobile in the parking lot near the entrance of the laundromat. No one else was present in the laundromat when she arrived. Approximately one-half hour later defendant entered the laundromat, without any laundry, looked around and then departed. As Ms. Connors took the first load of laundry out to her automobile, she noticed defendant sitting in an automobile in the parking lot. When she returned to the laundromat to finish her laundry, defendant again entered the laundromat and appeared to be looking at the bulletin board. Ms. Connors finished her wash, went outside to her automobile and placed a full laundry basket in the trunk of her automobile. As she walked to the door of her automobile, she noticed defendant leaving the laundromat.
Just as Ms. Connors was about to close her automobile door, defendant walked over to her automobile and, brandishing a gun, told her to "move over." Defendant cautioned her not to scream because he would "blow [her] head off." Defendant then started Ms. Connors' automobile and began to drive it out of the parking lot when it suddenly stalled. Defendant once again warned Ms. Connors not to scream because he had a gun. Defendant grabbed Ms. Connors by the arm, led her to a light aqua colored Chevrolet Bel Air, opened the door, shoved her into the automobile and drove from the parking lot. As he was driving, defendant again advised Ms. Connors to remain quiet. Defendant informed her that he planned to steal her car because he needed money. Defendant further explained that he needed money because "they don't give ex-cons very good jobs." Defendant also informed Ms. Connors that "he [had been] in jail for ten years for killing two people." Defendant stopped his automobile near a farm field and tied Ms. Connors' hands behind her back with a white silk rope. Defendant pulled Ms. Connors from the car and locked her in the trunk. Defendant again cautioned her, "just keep quiet, remember I have a gun, don't make any noises while you are in there." While defendant was putting Ms. Connors in the trunk, she noticed an orange and yellow plastic toy truck, a small red wagon and some tools were inside the trunk.
Defendant drove for approximately two hours with Ms. Connors inside the trunk. He then stopped, opened the trunk and placed Ms. Connors' laundry basket full of clothes next to her in the trunk. He immediately locked the trunk and began driving. After driving for approximately another hour, defendant removed Ms. Connors from the trunk. It was dusk, but Ms. Connors observed that they were at a motel on 159th Street in Markham across the street from the Hub Restaurant. Defendant led Ms. Connors to either room number 20 or 21 in the motel and instructed her to lie on the bed. When Ms. Connors began to cry and shake, defendant placed his hand over her mouth and holding a knife to her, warned her "that if it was necessary he would use the knife because he had killed people before and he [knew] how to use a weapon." Defendant further cautioned "that if [she] started to scream he would shoot [her] with a gun because nobody would think it was anything, they would just think it was a truck backfiring, so he could shoot [her] easily and nobody would know." Defendant then pushed Ms. Connors on the bed and struck her when she began to cry again. While Ms. Connors' hands were tied defendant attempted to insert his penis into Ms. Connors' anus but was unable to penetrate.
Defendant then showered. When he finished, he untied Ms. Connors' hands and ordered her to shower because "if he got caught it would be used as evidence against him." After showering, Ms. Connors dressed and was advised by defendant that they would stay in the room until dark. Approximately an hour and a half later, defendant once again tied Ms. Connors' hands behind her back, led her out of the motel room and again locked her in the trunk of his car.
Defendant then drove for approximately an hour. When the automobile stopped and defendant opened the trunk, Ms. Connors and defendant were alone inside a garage. Defendant removed Ms. Connors from the trunk and informed her that they were at the newspaper agency where he worked. A few minutes later defendant heard a noise outside the garage. Defendant cautioned Ms. Connors that if she "started screaming or if [she] didn't stay put that he would use the gun because he had done it before and he [knew] how." She was then ordered to hide behind a garbage bin a few feet away while defendant investigated the noise.
When the noise ceased, defendant instructed Ms. Connors to come out from behind the bin and stand next to him. Defendant then pulled her to him and began touching her "all over her body." When Ms. Connors began to cry and pull away, defendant struck Ms. Connors twice with his fist on her jaw. Defendant once again warned Ms. Connors not to make any noise. Defendant then advised Ms. Connors that he would do one of three things with her kill her, keep her or let her go. When defendant heard Ms. Connors praying, he began choking her, asking, "Do you still believe in God?" Ms. Connors replied, "yes" and defendant stopped choking her.
Defendant once again locked Ms. Connors in the trunk of his automobile and drove for "an hour or two." Ms. Connors heard defendant get out of the automobile and walk away. She "made noises" and attempted to kick open the trunk. However, a few minutes later defendant returned.
After approximately 45 minutes of driving, defendant removed Ms. Connors from the trunk and placed her inside a black van. Defendant instructed her to sit between the two seats in the van. Defendant again drove, eventually returning to the news agency. He then removed Ms. Connors from the van, placed her in the front seat of his car, locking the passenger door.
Defendant drove back to the Highway Motel, warning her not to make any noise. Defendant led Ms. Connors to the same room as before. He then tied her hands and legs to the bed and pulled her pants down. Defendant informed Ms. Connors that he was going next door and that he would hear her if she made any noise.
Defendant returned after a short while, untied Ms. Connors' hands and feet and ordered her to remove her clothes. Ms. Connors refused, and defendant hit her cautioning her that he would use the gun if she refused. Defendant removed all of Ms. Connors' clothes except her socks, completely undressed himself and pushed her face down on the bed. Defendant smeared VO-5 in Ms. Connors' anus and penetrated her anus with his penis. Ms. Connors told him to stop because she "had to go to the bathroom." Ms. Connors sat in the bathroom until defendant ordered her to shower and dress. Ms. Connors then asked defendant if he would release her. Defendant answered her that he would think about it overnight and decide in the morning.
Defendant ordered Ms. Connors to lie on the bed next to him. During the night Ms. Connors tried to edge off the bed several times, but each time defendant awoke. At 6:00 a.m. defendant tied Ms. Connors' hands in front of her, put her sweater over her hands and walked her to the car. Defendant put Ms. Connors in the trunk and drove all day with her in the trunk.
That evening at approximately 9 p.m. defendant removed Ms. Connors from the trunk, placed her in the front seat of the car, locking the passenger door. Ms. Connors loosened the ropes and defendant told her to take them off. While defendant was driving, he informed Ms. Connors that he thought he was "going to let her go." A short time later a police officer in a squad car signaled defendant to the side of the road. While the officer was still in the squad car, defendant cautioned Ms. Connors that if she tried to escape or if she said anything, he would shoot her. Defendant then hurried out of his automobile and met the police officer behind defendant's automobile. A few minutes later the police officer departed and defendant returned to his automobile. Defendant told Ms. Connors that he needed a fuse for his tail light. He also told Ms. Connors that she was "lucky" that she had not said anything or attempted to escape because she would have been hurt.
Defendant stopped at a gas station to repair the tail light. He then drove to 183rd Street and Oak Park. Defendant informed Ms. Connors that he would let her go but said that she could not have her purse or the laundry basket because "his fingerprints were on them and could be used against him if they were found." Defendant then let Ms. Connors out of the automobile, cautioning her not to tell anyone or he would kill her.
Ms. Connors ran from defendant's automobile to Figaro's Restaurant, carrying the contents from her purse and the laundry basket in a bedspread. She ran inside the restaurant and asked some waitresses for help. A few minutes later her boss arrived and drove her back to the Alexandrian Restaurant, her place of employment, where her parents met her.
Ms. Connors was subsequently taken to Silver Cross Hospital where she was examined by a doctor. She was then taken to her father's house where Tinley Park policemen questioned her. Ms. Connors viewed some photographs and identified defendant as the man who had abducted and assaulted her. Two weeks later Ms. Connors identified defendant in a lineup at the Markham police station.
Officer Charles Montgomery, a Tinley Park police officer, testified that he was assigned to the Christine Connors case at 11 p.m. on September 29, 1977. He witnessed Ms. Connors identify a photograph of defendant from an array of photographs shown to her that evening. He also witnessed Ms. Connors identify defendant in a lineup conducted on October 13, 1977, at the Markham police station. Officer Montgomery also observed Cook County evidence technician Chuck Pearson examine defendant's car and remove hair particles from the trunk.
Janet Grandys, a waitress at Figaro's Restaurant, testified that at approximately 9:20 p.m. on September 29, 1977, Christine Connors walked into the restaurant and asked for help, explaining that she had just been released from her kidnapper. Ms. Connors' hair was in disarray, her clothing wrinkled and "she just smelled something terrible." Ms. Connors was carrying a bedspread containing other items. Ms. Connors asked Ms. Grandys to call her place of employment which would contact her parents. Ms. Connors said that her parents would then take her to the police. While Ms. Connors was waiting for her boss to arrive, she kept rubbing her wrists and neck and continually looked to see if anyone was behind her. Ms. Connors was afraid to go to the bathroom alone and requested one of the other waitresses to stand outside the bathroom door while she was inside.
Ruth Relli, owner of the Highway Motel, testified that a registration card signed by defendant shows that on September 28, 1977, he was assigned room 21 in the Highway Motel.
Investigator Charles Pearson, an evidence technician employed by the Cook County Sheriff's police, testified that on October 4, 1977, he searched defendant's automobile and recovered hair fibers from ...