APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT
McKAY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
The defendant was tried by jury and found guilty of burglary, kidnapping, unlawful restraint, and rape. (Ill. Rev. Stat. 1979, ch. 38, pars. 19-1, 10-1, 10-3, 11-1.) He was sentenced to an extended term of 50 years imprisonment for the rape. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2.
The three issues raised by this appeal are whether the prosecutor made improper comments during final arguments; whether evidence concerning blood types was improperly admitted; and whether it was proper to impose an extended sentence.
The material evidence follows: Beth R., the victim, testified that Sylvester Watson kidnapped her on February 5, 1979, from the parking lot of a school where she was a night student. During the initial struggle, he told her he had a gun and would kill her if she did not obey him. After ordering her to lie down in the back of her car, he drove the car around for 15 minutes. She noticed that he was wearing suede or leather gloves. While driving, he questioned her, among other things, about where she worked. She told him she worked in a record store. Eventually, he parked the car in an alley, near a light, went into the back, and for more than half an hour he raped her and committed deviate sexual assault. When he finished attacking her, he started a conversation in which he told her, among other things, that she was nice, and that he wanted to be her friend. He also told her he would not let her go until she gave him her phone number, so she gave him a phony number. Both during and after the attack she had opportunities to study his face. When he got out of the car, she drove home and reported that she had been raped. Beth did not tell anyone about the deviate sexual assault, even though she was questioned on that subject at the hospital. The next day, she went to the Chicago Heights Police Department and looked at 1500 photographs, but did not pick out any of them as being pictures of potential suspects. Around March 1, 1979, while at the record store where she told him she worked, Beth saw the defendant enter the store. She ran to the back and told some other employees that the man who raped her was in the store. They ran out while Beth called the police, but the defendant was gone. Several days later, after viewing a lineup at the Markham Police Station, she identified Watson as the man who attacked her. It was not until April 1979, when she was interviewed by the prosecutors who tried the case, that she told about the deviate sexual assault. On cross-examination she admitted that she saw the rapist's arms. Despite this, the police reports did not describe the attacker as having tattoos.
Michael Podlecki, an employee of the Bureau of Law Enforcement, Department of Scientific Services, testified that semen found on Beth's clothes was from an individual with Type "O" blood. Eighty percent of all persons secrete a substance in fluids, including semen, which indicates blood type. Such people are referred to as "secretors." Beth's blood was Type "A", and Watson was a secretor with Type "O" blood. Forty percent of all Blacks and 50 percent of all Whites are Type "O".
The defendant's alibi witness, Lynn Jones Henderson, testified that she was having a long dinner with him at the time the crime occurred. Not until August 1979 did she become aware that the crime with which Watson was charged occurred while she was in a restaurant with him.
Testifying on his own behalf, the defendant admitted, on cross-examination, that when he was arrested in March of 1979, he was informed of the date and time of the crime he was accused of committing. Despite this knowledge, it was not until July 1979, after "racking his brain," that he remembered being with Henderson at the time Beth was being attacked.
The defendant also testified that he had a tattoo on his arm on February 5, 1979. The jury viewed the tattoo. In rebuttal, the State attempted to establish that defendant did not have a tattoo when arrested.
Watson's first contention is that he did not receive a fair trial because, in rebuttal argument, the prosecutor allegedly (1) accused defense counsel of being a mercenary who manufactured the defense; (2) gave unsworn testimony; (3) referred to defendant's post-arrest silence; (4) shifted the burden of proof to the defense; and (5) appealed to the passions and prejudices of the jury.
Since the comments to which defendant objects were made in the State's rebuttal argument, we look first to see whether they were invited or provoked by improper defense argument.
Along with the alibi defense, and the contention that this was a case of mistaken identity, the defense argued that there were reasonable doubts because the police reports did not list the attacker as being tattooed, and because the State's case omitted mentioning the results of early investigative leads and scientific tests. For example, hair samples were taken from the defendant, but not mentioned at trial. Since the need for a hair sample from Watson implied that a comparison standard had been recovered by the police, the defense attorney argued that this omission from the State's case must have meant that the State's own scientific tests showed that Watson was not the rapist. The defense attorney also argued that there were reasonable doubts because the State failed to produce other evidence which would have corroborated the State's version of the case, if it was in fact true.
• 1 These arguments were proper because they were based on evidence presented at trial, and upon reasonable inferences drawn from the evidence. (People v. Vasquez (1972), 8 Ill. App.3d 679, 291 N.E.2d 5.) In fact, these arguments show that defense counsel ably and zealously defended Watson in the face of an overwhelming prosecution case. However, at one point in his argument, defense counsel accused the State of falsifying and concealing evidence:
"A case is not only determined by evidence presented to you, it is the lack of evidence. It is the changing of evidence. It is the concealment of evidence."
Though it was fair and proper to argue that there were reasonable doubts about defendant's guilt (because the State failed to bring forth certain evidence and witnesses which would have corroborated the prosecution, if its version of the evidence was true), there was no basis, in this case, for accusing the State of either concealing evidence from the defense or of altering evidence. Therefore, this argument was improper.
• 2 In addition to these comments, defense counsel brought up his personal beliefs and opinions. When arguing about how horrible the attack on Beth was, he said, "Of course it is tragic. It is terrible. Believe me, I resent it." In reference to whether, in April, she told the prosecutors about the deviate sexual assault, he said, "I don't know, but if we took her word, she told somebody in April and I am a little reluctant to do so." Also, in argument about Beth's testimony that the car motor was shut off during the attack, defense counsel flatly declared, "I don't believe the motor was shut off * * *." These comments were improper because it is not permissible for a defense attorney, in argument to the jury, to express his or her personal belief or opinion in the truth or falsity of any testimony or evidence. ABA Standards, The Defense Function § 7.8(b) (1971).
The responses made by the prosecution in rebuttal argument include three areas of improper comments: attacks on the defense attorney; statements which were not supported by the evidence; and comments which were designed to appeal to the passions and prejudices of the jury.
The attacks on defense counsel included repeated accusations that he was trying to confuse the issues and blind the jurors by blowing puffs of smoke in their faces. The ...