APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was found guilty of deviate sexual assault and indecent liberties with a child. (Ill. Rev. Stat. 1977, ch. 38, pars. 11-3 and 11-4.) He was sentenced to a term of 50 to 100 years for the deviate sexual assault charge since the trial court found that the indecent liberties charge merged with that offense. On appeal defendant contends that: (1) the trial court erred in denying defendant's motion to quash his arrest and suppress evidence; (2) evidence of a separate attack denied him a fair trial; (3) rebuttal evidence was improperly admitted; (4) prosecutorial misconduct during closing argument denied him a fair trial; (5) he was not proved guilty beyond a reasonable doubt; and (6) his sentence is excessive.
Defendant was separately indicted for his crimes against Anna, the 14-year-old female victim involved in this case, and for the deviate sexual assault, robbery and aggravated kidnapping of Scott Staton. The State elected to proceed on the instant indictments and sought to introduce evidence of the Staton incident in this case. Defendant's pretrial motion to exclude evidence of the Staton crime was denied.
Defendant also made a pretrial motion to quash his arrest and to suppress the evidence gained thereby. The following pertinent testimony was elicited at the hearing on this motion.
Chicago police officer Bass testified that on May 8, 1977, he was assigned to the instant case. He was told that a black-over-gold late model two-door car with license plate number PW 5019 was involved. A license check indicated that the plate was not on file and did not reveal the owner of the car. He also had a general description of the suspect although this was not included in the police report. The description was that of a male Negro, about 30 years old, 5 feet 10 inches to 6 feet tall, medium build, dark skin, medium afro and a mustache. He and his partner began a search for the vehicle and saw a 1969 Buick four-door car otherwise matching the description of the car at 46th and Woodlawn. As they turned around to observe it, it was driven away in the opposite direction. They were unable to follow it because of traffic.
On the following day a surveillance team consisting of about six police cars and 8 to 11 police officers was set up at 46th and Woodlawn. The Buick was seen parked and unoccupied at that location. Bass observed the car from a distance of about a quarter block for half an hour when a male Negro about 30 years old, 5 feet 10 inches tall and of medium build approached the Buick. There was nothing unusual about the man. After he entered the car, Bass drove alongside and exited his car and ordered the man out of the car. Defendant got out, was placed under arrest and transported to a police station. At the time of the arrest, Bass recovered a bottle of vodka from defendant's right coat pocket and noticed that he had a mustache.
Several officers remained with the car until evidence technicians arrived and processed the car. After the technicians had left, two officers searched the car and recovered a tube of vaseline from the glove compartment.
Bass stated that no arrest or search warrant had been obtained for either the person or the vehicle.
Following argument, the motion to quash the arrest and suppress evidence was denied.
The pertinent evidence at trial established the following facts. At about 11:30 p.m. on May 7, 1977, Anna was walking near 54th and Hyde Park Boulevard on her way home when she was approached by a man whom she identified as defendant. He grabbed her by her shoulder, asked for her money, and struck her as she attempted to break away. Defendant dragged her by her hair into his car and began to drive. Her asked her what her name was and although she responded "Anna," he called her "Arnold." After about two minutes he drove into an alley and told her to remove her pants. She refused initially but when he told her that he had a gun and would shoot her if she tried to leave, she removed them. She was forced to perform an act of oral copulation on defendant who then took a tube from the glove compartment and smeared a vaseline-like substance on his penis and her anus and had anal intercourse with her. Defendant then told her to crawl into the back seat where he again forced her to perform another act of oral copulation and submit to anal intercourse. When he finished, defendant smoked a cigarette.
Defendant crawled back into the driver's seat and drove to the area where he had abducted Anna. During the ride he asked if she were a homosexual, if she had ever hustled, and if she smoked or drank, to which she responded negatively. He also asked if anyone had told her that she sounded like a girl and said that he thought she was cute and would like to see her again. As he drove he drank from a clear, flat bottle. When defendant stopped the car, she got out and walked to the rear of the car. She saw the license number PW 5019 and ran to her home which was about half a block away. She told her mother of the attack and the police were called.
She described her assailant to the policemen who took her to the hospital as being 5 feet 11 inches to 6 feet in height, of medium build, with a mustache, medium to dark skin and a medium to short afro. She described the car as a two-door, gold with a black top, power windows, black interior with an arm rest in the front seat and license number PW 5019.
On May 9, 1977, she was taken to a police station where she viewed a lineup and identified defendant. Following the lineup she was taken to a very large parking lot outside the station where she identified the car in which she was abducted. At trial Anna identified State's exhibit No. 1, a tube of Vaseline Hair Creme, as being the tube that defendant removed from the glove compartment, and exhibit No. 2, a Smirnoff's vodka bottle, as looking like the one from which defendant drank. She also identified State's exhibits 3, 4, 5 and 6 as being photographs of various portions of the car in which she was abducted.
She testified that although the interior lights of the car were not on while she was in the car and there were no lights in the alley, the area where she was accosted was lit as was the route taken by defendant.
A physician testified that she examined Anna after the attack and she observed a bruise on her forehead and small perirectal lesions and a small amount of blood in her rectum. The victim was treated for possible venereal disease.
After defendant's motion in limine to exclude evidence of other crimes was denied, Scott Staton was allowed to testify. He testified that at approximately 11 p.m. on April 27, 1977, a man whom he identified as defendant grabbed him from behind as he walked near 48th and Ellis Avenue. Defendant pulled him around the corner and told him that if he shouted he would blow his head off. Staton was facing defendant when he said this. Defendant asked if Staton had any money and pulled him to his car. He told Staton to get in and once inside defendant told him that if he tried to get out he would blow his head off. Defendant drove to a parking lot between two houses and stopped the car. He asked Staton for his money and received $6. Defendant told Staton to climb into the back seat, walked around the car and entered from the back right door. Defendant forced Staton to perform an act of oral copulation on him and then told him to get on his stomach and to pull his pants down. He gave Staton a tube of cream and told Staton to put some up his anus. Defendant then had anal intercourse with Staton. Defendant then forced Staton to repeat the series of acts above five or six times. When he had finished, defendant smoked a cigarette and drank from a flat, thin bottle. Staton identified the State's exhibit No. 2 as being similar to the bottle from which defendant drank. Defendant told Staton to return to the front seat after which he drove him near his home.
Staton waited about three days before he reported the incident to the police because he was embarrassed. He gave a description of his assailant to the police and described the car as a brownish four-door with a dark interior but did not give a license number. On May 9, 1977, he viewed a lineup and identified defendant. Staton also stated that the tube which he saw in defendant's car contained a cream-like substance and was rather nondescript, like any other tube.
Chicago police officer Bass' testimony at trial was basically a reiteration of his testimony at the pretrial motion to suppress hearing. At the time of the arrest Bass searched defendant and recovered a half-pint bottle of vodka. He identified State's exhibit 2 as that bottle.
On cross-examination Bass stated that at the time of the arrest the description of the car he had received was a gold two-door late model intermediate car and that defendant's car did not fit this description. However, the license number matched that of the car involved in the attack of the victim. On redirect Bass testified that license number PW 5019 was not in the Secretary of State's computer file.
Chicago police officer Duncan testified that on May 9, 1977, he processed a black-over-gold 1969 Buick Electra four-door sedan at 46th and Woodlawn for evidence relating to a sex-crime investigation. He took several photographs of various parts of the interior and exterior of the car including the license plates which he identified as State's exhibits Nos. 3 through 6. He stated that the color in the photographs was faded somewhat because of the manner in which the film was developed. He also dusted the glass and interior metal surfaces for fingerprints but did not find any suitable for identification purposes. He received State's exhibit No. 1, the tube of vaseline, from Officer Graf, who removed it from the glove compartment.
It was stipulated that defendant applied for a license for his car, the car involved in the crimes, and was issued number PW 5019.
Chicago police officer Mason testified in defense that although Officer Bass had told him that he arrested defendant in a car at 4605 S. Woodlawn, Mason's report stated that defendant was immediately placed under arrest as he got to the vehicle. Officer Mason testified that after he conducted the lineup in which the victim identified defendant he took her to a parking lot where she selected defendant's car from among approximately 300 cars.
William Clegett, defendant's stepfather, testified that on May 7 through 9, 1977, defendant was the owner of a 1969 "Champagne Mist" Buick four-door. At this point the jury was permitted to leave the ...