APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
J. MAHON, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 9, 1981.
Mylon Cross and Ronald Williams were charged by an information filed on April 28, 1978 with the offenses of rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1) and deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11-3). The public defender was appointed to represent each defendant. On August 11, 1978 the information was amended to charge each defendant additionally with three counts of aggravated kidnapping (Ill. Rev. Stat. 1977, ch. 38, par. 10-2), three counts of kidnapping (Ill. Rev. Stat. 1977, ch. 38, par. 10-1), one count of unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10-3) and two counts of aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-4).
On September 11, 1978, the case proceeded to jury trial, and at the conclusion, verdicts were returned finding each defendant not guilty of one count of kidnapping, but guilty of all other charges. The trial court, however, entered judgment only on the guilty verdicts of rape, deviate sexual assault, three counts of aggravated kidnapping, and one count of aggravated battery.
On November 29, 1978, after denial of all post-trial motions, includ- a petition for discharge, Mylon Cross was sentenced to concurrent terms of imprisonment of 30 years for rape and deviate sexual assault and 10 years for each count of aggravated kidnapping while Ronald Williams was sentenced to concurrent terms of imprisonment of 25 years for rape and deviate sexual assault and 10 years for each count of aggravated kidnapping. Defendants were not sentenced on the aggravated battery conviction.
On appeal, defendants contend: (1) they were denied their statutory right to a speedy trial (Ill. Rev. Stat. 1977, ch. 38, par. 103-5); (2) they were denied effective assistance of counsel (U.S. Const., amend. VI) because they were jointly represented despite the existence of a conflict of interest in their defenses; defendant Cross individually contends: (3) he was denied competent counsel because counsel failed to object to the admission of evidence which was the result of an illegal search; (4) the prosecutor improperly presented evidence of his post-arrest silence; (5) the trial court improperly allowed the prosecutor to present evidence of his co-defendant's statement which implicated him; (6) the trial court erred in admitting his statement given in violation of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602); defendant Williams individually contends: (7) he was denied a fair trial by the prosecutor's improper and prejudicial closing arguments; and (8) the judgments and sentences on three counts of aggravated kidnapping were improperly entered.
We affirm the convictions for rape and deviate sexual assault, and we reverse the three aggravated kidnapping convictions and the one aggravated battery conviction on which judgments of guilty were entered.
Since defendants do not challenge the sufficiency of the evidence, only those facts necessary to resolve the issues raised will be stated.
The complainant testified that on April 13, 1978, while she was on her way to a liquor store, she saw the defendants. She had met the defendants previously when she was in the company of her boyfriend. The defendants were sitting in a white Cadillac car. Cross called to her. When she approached the car, she heard Cross tell Williams, "Get that bitch." Williams then grabbed her wrist, opened the car door, and shoved her inside the car. Cross grabbed her arms; Williams held onto her legs. The defendants then drove off with the complainant. As they drove along, the complainant attempted to escape, but Cross locked the car doors. He repeatedly slapped her face and told her he wanted her to be his whore.
They arrived at the DeGrace Hotel on Chicago's southside. Cross brandished a gun and told the complainant that if she tried to run away, he would kill her. Nevertheless, as they were getting out of the car, she again attempted to flee. Cross ran behind her and grabbed her. Again, he slapped her face and also threatened to kill her. Cross gave the gun he was holding to Williams who held the gun to the complainant's back. The three then went to Cross' room in the hotel.
In the room, Cross put on a tape recording and ordered the complainant to remove her clothing. She refused. Cross then struck her across her face with his fist, knocking her to the floor. He kept striking her until the complainant removed her clothes. Cross then forced her onto the bed and penetrated her vagina with his penis. He did not climax. Cross then forced her to the floor and, with a belt, he beat her on her back and shoulders. He then forced her to perform fellatio upon him. When the complainant vomited, Cross beat her again until, at his direction, she licked the vomit off the floor and swallowed it.
The complainant further testified that Williams then forced her to lie on the bed and he penetrated her vagina with his penis. He then began slapping the complainant's face. At that moment, Cross struck Williams and told him no one could hit "that bitch" except him. He told Williams "to get him some." Williams then forced the complainant to perform an act of fellatio upon him while he beat her with a belt buckle. The complainant further asserted that Williams forced her to submit to sexual intercourse four times and Cross forced her to do so five times. Later, Cross made her go into the bathroom where he forced her to kneel and he then urinated on her face. He again told her she would be his whore.
At approximately 4 a.m., Cross told the complainant to turn on the lights in the room. She went towards the door, opened it, and, in a state of nakedness, escaped. As she fled from the hotel, she exclaimed to the hotel desk clerk that she had been raped. She then ran into the street. A cab driver, Warren Jamieson, saw the complainant, stopped his cab, and told her to get in. As she did so, she saw the defendants getting into their car. The cab driver and another car followed the defendants' car until the defendants stopped.
The complainant also testified that as a result of being beaten, her forehead and eyes were swollen and discolored and one of her eyes was cut which necessitated a later insertion of four stitches. She also stated that as a result of the beating and whipping she had received, her back and shoulders were permanently scarred. Photographs of her injuries were introduced into evidence.
Jamieson, the cab driver, and John Bonner, the driver of the other car which had followed the defendants' car, testified that they saw the complainant running from the DeGrace Hotel. She was naked. She was crying hysterically. Her face was badly bruised and swollen. They also explained how they drove after the defendants until the defendants' car stopped and the police arrived.
Defendant Williams did not testify. Cross, in his testimony, asserted that although they were in the hotel room, nothing unusual happened. Cross said he had fallen asleep and Williams had gone out to get cigarettes. When Cross awoke, the complainant was gone. Cross denied that he or Williams forced the complainant into a car or into the hotel room. He also denied that the beating, rape, and deviate sexual assault occurred. He asserted that on many previous occasions he had had sex with the complainant. Several witnesses also testified that they knew Cross and the complainant had previously engaged in sexual relations.
In rebuttal, an assistant state's attorney testified to a prior inconsistent statement given to him by Cross. At the close of the evidence, the jury returned guilty verdicts on all charges except one count of kidnapping. Following the entry of judgment and sentencing as indicated, this appeal was filed.
Defendants first contend that they were denied their statutory right to a speedy trial (Ill. Rev. Stat. 1977, ch. 38, par. 103-5) on the three charges of aggravated kidnapping and one charge of aggravated battery upon which judgments of guilty were entered and which were included in the nine new and additional charges filed on August 11, 1978. Both defendants and the State agree that the nine new and additional charges were filed on the 120th day after the defendants' arrest and that no dispute exists that defendants were tried within term time on the original charges.
• 1 The speedy-trial statute provides that every person in custody for an alleged offense shall be tried within 120 days from the date he is taken into custody, unless delay is occasioned by the acts of the defendant. (Ill. Rev. Stat. 1977, ch. 38, par. 103-5.) With respect to offenses committed on or after March 1, 1977, such as here, any delay occasioned by the defendant temporarily tolls, for the time of the delay, the 120-day period within which defendant must be tried. (Ill. Rev. Stat. 1977, ch. 38, par. 103-5(f).) The speedy trial statute is tolled only when there has been actual delay of trial which is clearly attributable to the defendant. (People v. Perkins (1980), 90 Ill. App.3d 975, 414 N.E.2d 110.) Thus, the inquiry in the instant case is whether some act of defendants, or some act to which they consented, necessitated a delay in their trial. People v. Jones (1971), 130 Ill. App.2d 769, 266 N.E.2d 411.
The record discloses that the defendants were taken into custody on April 13, 1978. On April 28, 1978, they were arraigned on charges of rape and deviate sexual assault. The case was then continued, with defendants' consent, to May 9, 1978. On that date, defendants demanded trial. The State moved for a continuance to May 15, 1978. On May 15, the case was continued by agreement to June 15, 1978.
On June 15, defendants again demanded trial. The case was continued, on the State's motion, to June 26, 1978. On June 26, the State again obtained a continuance to July 24, 1978. On that date, on the State's motion, the case was again continued, and after another continuance on the State's motion, the trial was set for August 14, 1978. The foregoing continuances were granted despite the repeated demand of the defendants for trial.
On August 11, 1978, over defendants' objection, the trial court permitted the State to file nine new and additional charges against defendants. These charges arose from the same set of circumstances upon which the original charges were based. The new charges included three counts of aggravated kidnapping, three counts of kidnapping and two counts of aggravated battery and one count of unlawful restraint. Defendants thereupon requested a continuance of the matter to August 14, so that they could investigate grounds for a motion to strike those new charges. On August 14, the motion to strike the new charges was denied. The defendants, at that time, were arraigned on the nine new and additional charges and pleaded not guilty. Defendants, in view of the new and additional charges, then requested a 30 day continuances to prepare defenses. The defendants' request for a continuance was granted and the trial on all charges was continued to September 11, 1978. Trial began on that day.
• 2 Defendants do not dispute that trial on the rape and deviate sexual assault charges began within the speedy-trial term. *fn1 They assert, however, that they were not tried on the nine new and additional charges within the speedy-trial term. Defendants argue that any continuances obtained by them prior to the filing of these new and additional charges cannot be attributed to them when computing the term time as to the nine new and additional charges. Defendants assert that these new and additional charges were filed on the 120th day of the term and because of this late filing defendants were forced, without fault on their part, to seek a continuance which delayed commencement of the trial until September 11. Defendants contend that the trial on the new and additional charges proceeded after the running of the term because of the State's inaction and in failing to file the new and additional charges in a timely fashion and the delay of the commencement of trial on September 11 cannot be attributed to the defendants. We agree.
• 3, 4 Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges. Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained. (People v. Williams (1971), 2 Ill. App.3d 993, 278 N.E.2d 408. See also People v. Parker (1978), 59 Ill. App.3d 302, 375 N.E.2d 465; People v. King (1972), 8 Ill. App.3d 2, 288 N.E.2d 672.) Thus, as defendants correctly maintain, the nine additional charges were filed on the 120th day of the term.
Defendants maintain that the State's filing of the new and additional charges compelled them to request a continuance to investigate possible defenses to these charges and, therefore, the State should be attributed with the delays caused by the continuances on August 11 and August 14. If the State, rather than the defendants, is chargeable with these delays, then defendants were tried on the new and additional charges after the 120-day term had expired.
• 5 In our view, defendants should not have been charged with the delays of trial which occurred on August 11 and August 14. The State had the continuing burden to take the necessary steps to bring about a prompt trial in conformance with the provisions of the speedy-trial act. (People v. Perkins (1980), 90 Ill. App.3d 975, 414 N.E.2d 110.) The record demonstrates that the State had knowledge of all facts necessary to file the new and additional charges long before August 11, 1978. Only the State's tardiness (for which the State has never offered an explanation) in filing the new and additional charges precluded commencement of prosecution on these charges within the speedy trial term. To charge defendants with a tolling of the term under these circumstances, especially where the need for time to effectuate discovery was essential, would circumvent the very protection the statute aimed to provide. (Accord, People v. Nunnery (1973), 54 Ill.2d 372, 297 N.E.2d 129; People v. Perkins (1980), 90 Ill. App.3d 975, 414 N.E.2d 110; cf. People v. Shields (1974), 58 Ill.2d 202, 317 N.E.2d 529.) We necessarily conclude that the State violated defendants' statutory right to a speedy trial on the nine new charges.
The record discloses that in connection with the nine new and additional charges, the defendants were found guilty of and sentenced only on the aggravated kidnapping charges. A judgment of guilty but no sentence was entered on the aggravated battery charge. Accordingly, we direct that the trial court, on remand, vacate the judgments of conviction and the sentences imposed upon the defendants in connection with the aggravated kidnapping charges and the judgment of conviction on the aggravated battery charge.
Although our determination makes it necessary to vacate defendants' aggravated kidnapping convictions and sentences, we find it unnecessary to remand the case for any new sentencing hearing. The record clearly discloses that the trial court imposed punishment for the aggravated kidnapping convictions as separate and distinct from the punishment imposed upon the convictions for rape and deviate sexual assault. Also, our decision here makes it unnecessary for us to address the issue raised by defendant Williams as to whether the judgments of conviction and sentences imposed on the aggravated kidnapping charges were improperly entered.
Defendants next contend they were denied effective assistance of counsel. This contention is based on several grounds.
The defendants assert that reversal of their convictions is required because an actual conflict of interest existed between them at trial — in that their defenses were antagonistic — yet, they were jointly represented by the public defender. Although each defendant was represented by an individual assistant public defender, the State does not challenge defendants' argument that they were jointly represented. Rather, the State maintains that joint representation was permissible because there was no actual conflict of interest between the defendants.
• 6 Joint representation of co-defendants is not per se violative of the constitutional guarantee of effective assistance of counsel. (People v. Nelson (1980), 82 Ill.2d 67, 411 N.E.2d 261. See also Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173; Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457; People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227.) "The question to be addressed in cases where co-defendants are jointly represented by one attorney or entity is whether there was an `actual conflict of interest manifested at trial.' [Citations.]" (People v. Nelson (1980), 82 Ill.2d 67, 72, 411 N.E.2d 261, 264.) The law is "firmly established that when a timely objection to joint representation is made" (emphasis added) (People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227, 228), and "an actual conflict is identified" (People v. Nelson (1980), 82 Ill.2d 67, 72, 411 N.E.2d 261, 264), but the court nonetheless requires joint representation of parties with conflicting or antagonistic interests, it is not required that a defendant prove that he has been prejudiced. People v. Nelson; People v. Precup.
Here, as in Precup and Nelson, defendants never suggested, at any time prior to or during trial or in post-trial motions, that a conflict of interest had arisen because their defenses were antagonistic. As in Nelson, no motion was made by the defendants here requesting independent counsel for reason of conflicting or antagonistic defenses. It is true that defendant Cross orally moved for change of counsel because he was dissatisfied with counsel's preparation of the case. Defendant Cross, however, never claimed or informed the court of any genuine conflict or potential antagonism between his defense and that of Williams which could impair counsel's ability to fully and properly represent each of them. Although independent counsel for Cross filed post-trial motions, he challenged only the competency of Cross' trial attorney; the conflict of interest issue was never addressed.
The defendants now point to three developments at trial which they assert demonstrate an actual conflict of interest: Cross' testimony that he fell asleep while present in the hotel room with the complainant and Williams; the complainant's testimony that Cross hit Williams; and Officer Butler's testimony that at 1 a.m. he saw a tall light skinned man outside the DeGrace Hotel. With the benefit of hindsight, defendants urge that these evidentiary matters reveal defenses so antagonistic that an actual conflict of interest existed at trial which requires reversal. Implicit in defendants' contention is the presumption that the trial court should have sua sponte ordered a mistrial and severed the trial of the two defendants to avoid the error now urged on appeal. Our supreme court has explicitly rejected this argument in People v. Precup (1978), 73 Ill.2d 7, 382 N.E.2d 227, and People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649. As in Precup, there was no motion here for a severance and the issue is first raised on appeal. In Precup, the court held the issue waived. In People v. Nelson (1980), 82 Ill.2d 67, 411 N.E.2d 261, the defendant there, as here, raised only the issue of incompetency of counsel, yet the court substantively addressed the conflict issue and concluded there was no conflict. According to the precedent of Precup, then, the issue has been waived. Even addressing the issue substantively as the court did in Nelson, we cannot discern from the record the actual conflict of interest between these defendants that is claimed to have existed.
Both defendants pled not guilty. Williams did not testify. Cross testified that he fell asleep in the hotel room shortly after 12 a.m. and "woke up on and off. Nothing occurred." He further asserted that Williams left the hotel room to get cigarettes about 10-15 minutes after they were in the hotel room. Williams did not return for sometime. Cross could not remember how long Williams had been gone. Cross did not see or hear Williams re-enter the room, but when Cross awakened three or four hours later, Williams informed him that the complainant had answered the door and let him into the room. Cross denied that either he or Williams forced the complainant into the car or hotel room; Cross also denied that they had a gun.
Williams asserts that the clear import of this testimony is that Cross was the perpetrator of the offenses. We disagree. Cross testified that nothing occurred and that Williams was gone for an uncertain period of time. Neither defendant presented an alibi defense, although Cross' version of the story which he gave to the police, but abandoned at trial, was in the nature of an alibi. In our view, the defenses were not antagonistic. The defense theory was that the complainant, who had previously engaged in sexual relations with Cross, went willingly with Cross and Williams to the hotel room but that nothing happened there.
In fact, the defendants attempted to show that the complainant had fabricated the defendant's involvement because of a "love triangle." The defendants presented evidence that Cross and complainant's boyfriend had argued about her and that she had once "chosen" Cross over her boyfriend. Defendants also presented evidence that the complainant's boyfriend had once threatened her with a knife. In closing argument, defense counsel suggested that the complainant had received her injuries from her boyfriend prior to meeting Cross and Williams and that the complainant had falsely accused the defendants of raping her because she was angry with them. In other words, the complainant was "pitting" the men against each other, to make her boyfriend jealous. None of the foregoing points to conflicting or antagonistic defenses.
Further, in our view, the defendants' defenses did not become antagonistic simply as a result of the introduction of Cross' prior inconsistent exculpatory statement to the police which was offered in rebuttal. In this statement, Cross indicated Williams was with the complainant while Cross was elsewhere. Cross, however, abandoned this defense at trial. The fact that Cross' testimony was impeached with this prior inconsistent statement did not mean that Cross' interest necessarily was hostile to the interest of Williams. Unlike People v. Meng (1977), 54 Ill. App.3d 357, 369 N.E.2d 549, where each defendant attempted to inculpate the other and exculpate himself, here, neither defendant actually attempted to nor did he implicate the other at trial.
As further evidence of conflict, Williams points to the complainant's testimony that Cross hit Williams and told him to "get him some." Williams argues that independent counsel would have developed a defense of compulsion. (Ill. Rev. Stat. 1977, ch. 38, par. 7-11.) A close reading of the transcript, however, reveals that Cross did not hit Williams or tell him "to get him some" until after Williams had engaged in sexual intercourse with the complainant against her will and after he had hit her in the face. Williams engaged in sex with the complainant four times. After the first sex act he began slapping her face. The complainant testified that when he "got off her," Cross told him to "get him some." Williams "didn't want to do it, but Mylon Cross started hitting him * * * so he got on top of me." Williams later forced the complainant to perform fellatio and he also struck her with a belt buckle. In our judgment this testimony hardly provides the basis for ...