APPEAL from the Circuit Court of Cook County; the Hon. ROGER
J. KILEY, JR., Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant was charged by information with the offense of attempt murder, aggravated battery and unlawful restraint. (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 9-1, 12-4, 10-3.) Defendant was tried in a bench trial and found guilty of attempt murder. He was sentenced to a term of 50 to 75 years. On appeal, he contends that: (1) the court erred in denying him access to the State's transcripts of the prior mistrial; (2) he was denied effective assistance of counsel in that his attorney failed to obtain a full transcript of the previous mistrial; (3) he was not proved guilty beyond a reasonable doubt; (4) the court erred in advising him that he could receive an extended term under the new sentencing act; and (5) his sentence is excessive. We affirm.
After 10 days of testimony and 2 1/2 days of deliberation at defendant's first trial, a mistrial was declared based upon the jury's deadlock. The case was transferred to another judge, and after two days of voir dire for his second trial, defendant waived a jury. The following pertinent evidence was adduced at the second trial.
On November 6, 1976, Mary Leen was working as a night maid at the Sheraton Towers Hotel, located in Oak Lawn. She had worked at the hotel for about a year and was also a student at Moraine College. Her primary responsibility at the hotel was to clean the rooms on the first and second floors which were used by employees of the Grand Trunk railroad.
Mary arrived at the hotel a few minutes after 4 p.m. After cleaning two rooms, she called home and was informed that Julie Brady had called for her between 4:30 and 4:45 p.m. Mary then went down to the second floor, bought a can of soda, and proceeded to room 205 which was vacant. Many evenings while waiting to clean other rooms, Mary would sit in room 105 or 205 and drink soda and watch TV. She preferred these two rooms because she was able to see the digital clock across the street. Before entering room 205, she placed her cleaning cart in the alcove against the wall outside the room. Room 205, like all '05 rooms, has a main room, a vanity area, and a bathroom. The bedroom area has two large beds with a nightstand between. There is a phone and a lamp on the nightstand. A dresser with a television set sits against the wall opposite the beds. The vanity area, which includes the bathroom, is a few feet from the door on the left when one enters.
Mary arrived at room 205 about 5:15 p.m. Upon entering, she left the door open because it was the hotel's policy not to close the door while cleaning a room. Thereafter, she sat on one of the beds, turned on the lamp on the nightstand, and dialed Julie Brady's phone number. She talked to Julie for 10 to 15 minutes. The conversation ended when Mary, who was still sitting on one of the beds, noticed a shadow on the wall near the entrance to room 205. Mary then said, "Ssh, hold on a minute. There is someone here." She then put the receiver down on the bed, walked to the doorway, looked into the hallway, saw nothing but the cart, and then turned and looked into the vanity and then in the bathroom. As she turned around, she saw a blue and white gym shoe sticking out of the bathroom. She looked up and a man stuck his head out from behind the doorway. Mary had never seen this man before so she asked him what he was doing in the room. He indicated he lived right upstairs and had just come in to get towels. Because it was unusual for someone to come into another room for towels, Mary replied that she would have to call the front desk to check. When Mary started to dial the front desk, the man said, "Put down the phone or I'll slit your throat."
Mary did not indicate the exact height of her attacker but did state that he was about the same height as her brother Tommy, who was 6'3". Her attacker was not wearing anything on his head but was wearing a navy blue windbreaker, a blue cotton shirt and blue jean-type pants. She identified defendant as her attacker.
Defendant was standing at the end of the bed, pulling a knife from his pants, when he told Mary to put the receiver on the phone and to put the phone on the nightstand. He told her to sit down and shut up, and she sat on the bed closest to the window. Defendant sat opposite her on the other bed which was about 2 or 3 feet away.
Mary repeatedly asked defendant what he wanted and requested that he leave. He then indicated that he wanted to make love to her. To avoid getting raped, Mary told him she was married and three months pregnant, and that her husband was coming to pick her up at 10 p.m. None of these things was true.
During this time the door to the room was closed. Mary continued to tell defendant that someone would come and check on her and that if he did not want to get caught, he should just go. This too was untrue. Defendant then stood up, grabbed her hair, placed the knife across her throat, and said, "Lie down, it won't hurt." Mary pleaded with him to please sit down, not to hurt her and told him that if he would leave she would not tell anyone. Mary told defendant that if she did not call or go down to the front desk, someone would come up and check on her at 6 p.m. She also told defendant that she had other rooms to clean at 6 p.m. Defendant looked at his watch and informed her that it was only 5:55. She told him to check the bank clock. When he started to walk to the window, Mary ran toward the door. She got to the end of the bed closest to the door when defendant grabbed her and turned her around. She saw a knife coming toward her face, she used her hand to block it, and the knife came through her hand. She was also stabbed in the left torso area from her shoulder down to her waist, on her arms and on her right buttock. She estimated that she was stabbed 14 or 15 times. Mary again attempted to run towards the door but instead fell into the bathroom. Defendant demanded that she open the door so she crawled on her knees over to the door, turned the handle, and opened the door. Defendant walked past her, turned and stabbed her again below the left breast. He then ran toward the stairwell door directly across the hall. Mary went to the phone, dialed the front desk, told them she was in room 205, and that she had been stabbed. She attempted to walk towards the door but got only as far as the dresser where she sat until help arrived.
Mary was taken to the hospital and placed in intensive care. She could not remember the day she woke up but did recall two police officers in the intensive care unit showing her four or five photographs, none of which was of her assailant. The emergency room physician testified that it is possible that Mary suffered from amnesia during the period she was unconscious but that amnesia would not affect her memory regarding events that occurred prior to her unconscious state.
At about 6 p.m. on November 6, 1976, Officer Banas was on patrol about 10 blocks from the hotel when he heard the report of the stabbing. Banas arrived at the hotel the same time as the ambulance vehicle, about 3 to 5 minutes after hearing the message on the radio. He stayed in the lobby when the ambulance crew went up. Banas and the other officers waited for the other elevator. When the elevator arrived, the door opened and a Negro man with a dog stepped out. This man was over six feet tall, slender build, and about 25 to 30 years of age. He was wearing a lightcolored mod-type cap with a snap brim, a brown vinyl or leather jacket, and blue jean trousers. Banas later learned that this man was the defendant. There were no bloodstains on his clothing and nothing suspicious about his behavior or appearance.
Banas proceeded to room 205 where he observed the ambulance crew enter and heard Mary say that a "black guy" had assaulted her. Banas used the police radio to advise other officers of the description of the man he saw leaving the elevator. As he put out the message, two hotel employees told him that that individual was a guest at the hotel.
On cross-examination Banas stated that when he saw defendant getting off the elevator on November 6 he looked like he needed a shave, and that he had several days' growth of beard. He also appeared to have a moderate-type Afro haircut similar to his hair at the time of trial. He stated that he was sure defendant was wearing a brown jacket and that he definitely was not wearing a blue windbreaker or a blue denim jacket.
Officer Gilbert, who also worked for the hotel during his off-duty hours, heard the radio message and proceeded to the hotel. He and Officer Kowalczyk made a search of the building. After the search, Gilbert spoke with three men who saw a male Negro approximately 6 feet tall, weighing 160 to 170 pounds, dark complexion, wearing glasses and a dark coat, leave the hotel and drive off in a silver Mercedes. Even though the three men had been drinking, Officer Gilbert put the description on the radio. The hotel manager and two desk clerks informed Gilbert that defendant fit the description and was staying with Mrs. Childs in room 305. Around 7 p.m. Officers Gilbert and Kowalczyk went to room 305 and checked the area for blood, but saw none. They knocked on the door but received no answer. On cross-examination Gilbert testified that he did observe blood smears on one of the stairway doors in the hotel, on either the first floor or lobby.
On the evening of November 8, 1976, Detective Andersen, Lieutenant Taylor and Detective Schryver went to room 305. Mrs. Childs answered the door. Defendant was also present. The officers advised defendant and Mrs. Childs that the police were investigating a stabbing at the hotel and asked if they would come down to the station. Mr. and Mrs. Childs agreed and put on their coats. Defendant wore blue jeans and a blue jean-type shirt. At the station defendant agreed to be fingerprinted and photographed. Thereafter, defendant and Mrs. Childs returned to the hotel.
Following the cross-examination of Officer Andersen, defense counsel requested that the State be required to produce any transcript that it had of Officer Andersen's testimony at the previous trial. Defense counsel indicated that he had secured as many transcripts as he could afford but not this one. The court refused to order the State to produce the transcript but did place it on a voluntary basis. Thereafter, the State refused to produce the transcripts in their possession and advised defense counsel to obtain his own copy from the court reporter's service.
On November 9, Mary was removed from the intensive care unit. On that day Officer Schryver made arrangements to show Mary more photographs and to interview her. Schryver handed Mary 10 black-and-white photographs, 9 of which had been pulled from police files and the 10th was the picture taken of defendant the previous evening. She made a positive identification of defendant's photograph. She also told the officers that her assailant was as tall as her brother. Defendant was arrested that same evening. He wore blue jeans, a blue denim shirt, a navy blue windbreaker and a wristwatch to the station.
A police lab technician testified. He tested the clothes defendant wore at the police station and those worn by Mary at the time of her attack. Type "O" human blood was present on Mary's jacket and was possibly present on Mary's pants and white sweater as well as defendant's blue windbreaker. The white towel taken from room 205 indicated the possible presence of type "B" human blood. Defendant's blue jeans showed the presence of type "B" human blood. Mary's blood type is "O" and defendant's is "B".
Defendant testified that he was 23 years old, 6'4" tall, weighed 165 to 170 pounds, and that he has had a mustache and goatee since 1974. His hair has been the same style since 1974. Defendant further testified that he spent Saturday afternoon, November 6, in his hotel room with his wife. Around 3 p.m. he drove his wife to work. At this time he was wearing work shoes, blue jeans, a brown T-shirt, a blue windbreaker, blue denim jacket, and a blue denim hat. He was not wearing his blue denim shirt because his dog has urinated on it. However, at the first ...