APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
R. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 22, 1980.
After a jury trial, defendant was convicted of rape and deviate sexual assault, acquitted of armed robbery, and given concurrent sentences of 22 years for each conviction. On appeal, defendant contends that (1) he did not receive a fair trial because of the State's presentation of a prejudicial "theme of flight and escape" throughout the trial; (2) the denial of a preliminary hearing deprived him of equal protection of the law; (3) certain hearsay evidence was improperly admitted; and (4) he was prejudiced by comments made in the State's closing argument.
There is no contention that guilt was not established beyond a reasonable doubt and, accordingly, only the evidence pertinent to the issues raised will be set forth herein.
Initially, it is noted that defendant was scheduled for preliminary hearing on the day after his arrest, but earlier that day his case was presented to a grand jury which indicted him for armed robbery, rape, and deviate sexual assault. Prior to trial, a motion to quash the indictment was denied.
At trial, the victim, Cheryl Poole, testified that she first met defendant when he came to her apartment and tried to sell her a coat and other merchandise. At that time she told him she was not interested, and three days later she encountered him on the stairs in her building where he identified himself and said he lived in apartment 1209 of the same building. Four days later she was in her apartment with her 1-year-old son John, when defendant came to her door and asked if he could come in for a cigarette. She agreed, and when he came in he pulled out a knife, put it to her stomach, and forced her into the bedroom. There, a struggle ensued during which defendant punched her on the left side of her face and cut her wrist with a knife. He threatened to kill her and demanded that she remove her clothes. He then forced her to perform two acts of oral sex and two acts of intercourse — following which he cut a sheet into strips with which he tied and gagged her. After he left, she freed herself and went with her son to the home of Gladys Stroud, the mother of her child's father, who lived a half block away. She told Mrs. Stroud that she had been raped and that items had been stolen from her apartment. Mrs. Stroud called the police and, after Cheryl answered their questions, she went with two officers to her apartment building. When the police did not find defendant in apartment 1209, they took her to Michael Reese Hospital for treatment. On her return later that evening, she put the strips of sheets that had been used to bind her into a paper bag and gave them to the police officers.
Mrs. Stroud testified that when Cheryl came to her apartment she was crying, her nose and wrists were bleeding, and her jaw was swollen; that Cheryl told her she had been raped and beaten by a man named "Earl"; and that she called the police.
Police investigator Dorrociak testified that at the Michael Reese Hospital he noticed that Cheryl's mouth was red and swollen and that her left wrist was lacerated; that he and his partner went to apartment 1209 in Cheryl's building to talk to defendant and that after he spoke with Dwanda Beard, the occupant of apartment 1209, he and his partner went to the area of 39th Street and King Drive to look for defendant but were unable to find him; that they then returned to Cheryl's apartment, where she took a torn sheet from the bed, a piece of cloth from the floor of the bedroom, and numerous strips of sheeting from the floor of the kitchen — all of which she placed in a paper bag and gave to them; and that, before leaving the building, he gave his card to Dwanda Beard and told her that if she saw defendant to inform him that he was wanted for rape.
It appears that on March 15, 1978, the police were called to apartment 1209 because of an altercation between Dwanda Beard and defendant (the offenses against Cheryl Poole having occurred on February 27). Officer Moser was one of the officers called, and he testified that he took defendant to the Provident Hospital for X rays; that he entered the X-ray room with defendant, removed the handcuffs, and left the room and that he remained outside until "the X-ray technician came out and asked [him] [where his] prisoner was." An objection was then made to any further testimony from the witness showing that defendant had escaped from custody at that time. Before ruling on the objection, the court permitted a voir dire examination of Moser and his partner (Constanzo) in which the latter testified that on March 15 he investigated a disturbance involving defendant and his girl friend, Dwanda Beard — which resulted in the arrest of defendant when Beard insisted on pressing charges, and that Beard told him (Constanzo) that defendant was wanted on other charges of rape and home invasion. Both Constanzo and Moser testified that before they took him to the hospital, defendant was told that he was being held for resisting arrest, battery, robbery, and rape. After the voir dire examination, the court instructed the State not to pursue further questioning concerning defendant's escape, stating that the probative value of the evidence was outweighed by its prejudicial effect since a conclusion could be drawn that defendant was fleeing from the charges placed against defendant by Dwanda Beard rather than the offenses involving Cheryl Poole.
Defendant first asserts that he was denied a fair trial by the prosecution's presentation of a "theme of flight and escape" throughout the trial. Initially, defendant maintains that the State in its opening statement improperly implied that he had escaped from police custody. The record discloses that in his opening argument the prosecutor said defendant was taken to the X-ray section at Provident Hospital by Officer Moser, who was asked to wait outside while defendant was being X-rayed. An objection that evidence of escape was highly prejudicial and immaterial to the charge was overruled, following which the prosecutor told the jury that after a short period of time, Officer Moser determined that defendant was no longer in the X-ray room; that a number of officers tried to locate defendant; and that eventually defendant was located approximately three blocks from the hospital.
• 1 An opening statement should contain an outline of competent facts which the prosecutor in good faith expects to prove (People v. Weller (1970), 123 Ill. App.2d 421, 258 N.E.2d 806; see People v. Bolton (1976), 35 Ill. App.3d 965, 343 N.E.2d 190), and, while it is improper to make comments during the opening statement on evidence that is not produced at trial (People v. Warmack (1979), 73 Ill. App.3d 783, 392 N.E.2d 334; People v. Rogers (1976), 42 Ill. App.3d 499, 356 N.E.2d 413), evidence of the escape or attempted escape of an accused while in custody is admissible as a fact raising a presumption of guilt (People v. Gambino (1957), 12 Ill.2d 29, 145 N.E.2d 42, cert. denied (1958), 356 U.S. 904, 2 L.Ed.2d 582, 78 S.Ct. 566; People v. Curtis (1972), 7 Ill. App.3d 520, 288 N.E.2d 35). It is thus a proper topic for discussion in an opening statement, and therefore we find that the court did not err in overruling the objection to the prosecutor's comments in his opening statement concerning escape.
• 2 At trial, Officer Moser testified that after he left defendant in the hospital X-ray room, the technician came out and asked where his prisoner was. An objection was made as to further testimony as to escape, and a voir dire examination of Moser and his partner was then held — after which the court sustained an objection to testimony concerning any escape from the hospital on the basis of its belief that a conclusion could be drawn that defendant was fleeing because of charges made by his girl friend (Dwanda Beard) rather than because of the offenses involving Cheryl Poole. This ruling was incorrect, as it appears to be well established that evidence of escape is admissible even though the accused is being held on more than one charge. In People v. Sheridan (1977), 51 Ill. App.3d 963, 967, 367 N.E.2d 422, 425, cert. denied (1978), 435 U.S. 975, 56 L.Ed.2d 68, 98 S.Ct. 1622, the court said the following:
"The first argument advanced is that evidence of an escape is not relevant when defendant is being held on more than one charge since any circumstantial evidence of guilt derived from the fact of the escape attempt is negated where it is possible defendant sought to escape from the second charge. The above position, however, has never been followed in Illinois. Rather, we feel the fact that defendant is being held on more than one charge should only go to the weight of the inference to be drawn from the fact of the escape attempt since the defendant may offer any proof which would explain the circumstances surrounding his escape or escape attempt."
See also People v. Harris (1972), 52 Ill.2d 558, 288 N.E.2d 385; People v. Ligon (1973), 15 Ill. App.3d 746, 305 N.E.2d 212; People v. Neiman ...