APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. SCHREIER, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendants Thomas Bernardo (Bernardo) *fn1 and his brother, Bert Thomas (Thomas), were tried by a jury and found guilty of rape and not guilty of robbery. (Ill. Rev. Stat. 1977, ch. 38, pars. 11-1 and 18-1.) Thomas was sentenced to a term of 10 to 20 years and Bernardo to a term of 16 years.
On appeal, defendants contend that: (1) the State failed to prove them guilty of rape beyond a reasonable doubt; (2) the court erred in denying defendant Thomas' request for a 24-hour continuance; (3) evidence that Thomas was under "surveillance" for some time prior to the offense denied both defendants a fair trial; and (4) the court, when sentencing Thomas, improperly considered his then pending indictment for rape of another victim. We affirm.
On November 28, 1978, the instant case was called for trial and defense attorney Graham answered ready for trial and that he was appearing on behalf of himself and his partner Ewell. Jury selection was then conducted. The court recessed until the following day when Thomas personally addressed the court. He stated that he did not have proper counsel and that his attorney, Mr. Ewell, wasn't present. He indicated to the court that Mr. Graham, Ewell's partner, could not properly represent him because he wasn't familiar enough with the case. The prosecutor argued that the case had been pending over a year and a half and that Graham had been associated with the case since August. Graham acknowledged that since August 22 the prosecutor had tendered all discovery to him but this was in regard to Bernardo. While Thomas maintained that he had not spoken to anyone concerning a defense, Graham stated that he talked with Thomas "to some extent." Graham indicated that Ewell had intended to be present but his presence was required in Springfield as a State Representative but that he would be back on Thursday. The trial court then denied defendant's request for a continuance and indicated it had previously spoken to Ewell on Monday and informed him that nothing would be done on Monday, that jury selection would take place on Tuesday, that the trial would commence on Wednesday, and that Ewell expressed no objection to the schedule. The court also indicated that if necessary it would give Graham sufficient time to confer with Thomas.
The complainant testified that on July 22, 1977, she was then 17 years old, had only been in the United States 9 years and had immigrated from Haiti. On that date about 8:30 p.m. she went to the drugstore at 55th and Lake Park Avenue. As she entered the store, Bernardo greeted her and she returned the greeting. As she left the store, he again approached her and talked to her about a party. She asked where the party was, and he told her to come to the car so that he could write down the address. She went back to his car and noticed Thomas in the back seat. On direct examination she stated that Bernardo "put" her in the car, while on cross-examination she explained that Bernardo opened the door and at his request she stepped in and sat in the front seat. Bernardo told her he was going to take her home. She replied that she lived nearby and that it was unnecessary to drive her home, but Bernardo insisted and drove away with complainant and Thomas in the car.
Complainant further testified. The car proceeded down 51st Street, making several stops for red lights, onto the Dan Ryan Expressway and then south. Defendants told the complainant that they were going to their grandmother's house. She responded that she had to get home so that she could let her sister in. On cross-examination she recalled that as they neared the 100th Street exit, she began praying in a foreign language. Bernardo told her to shut up, and Thomas began hitting her. The car continued and then stopped in a wooded area. Bernardo instructed her to get out. When they got out, she began protesting that defendants were going to hurt or rape her. A few feet from the car defendants instructed her to take off her clothes. She pleaded with them not to hurt her, claiming she was pregnant, although she was not. Defendants told her to shut up while Thomas picked up a tree branch and began hitting her. Bernardo made her take off her pants and unzipped his pants. Bernardo then unsuccessfully attempted to have intercourse because she would not let him.
Complainant complained that the mosquitoes were biting her, so defendants brought her back to the car. On the way back they released her hand and she attempted to run away but defendants grabbed her and made her get back in the car. Bernardo again instructed her to take off her clothes. On cross-examination she stated that he took off her clothes and then undressed himself. After both defendants had intercourse with complainant, they prepared to leave. Bernardo placed the seatbelt around her while Thomas, seated in the back seat, hit her.
Bernardo stopped the car at 53rd and Ellis Avenue and told her that he would leave Thomas with her and warned her not to call the police or they would tell the police she had "conned" them by buying some reefers and not paying for them. Thomas then raped her again. Afterwards, while he was pulling on his pants, she said that she could not breathe. Thomas told her to open the window, but instead she opened the car door, ran out and stopped the first oncoming car. As the driver drove off with her, Thomas ran after the car shouting, "That's my wife, that's my wife, and don't listen to her." Complainant was driven to a University of Chicago security car at 53rd and Kenwood Avenue. After reporting the incident, she was taken to the hospital.
Three days later two police officers visited her and showed her photographs. She recognized one of the photographs as that of Thomas. Three months later she viewed a lineup where she recognized and picked out Bernardo.
William Grames, a University of Chicago security guard, testified that while on patrol on July 22, 1977, he was flagged down by a man and a lady. After speaking with complainant, he made a radio broadcast alerting listeners to look for two black males in a green auto last seen at 53rd and Ellis.
Maurice Hodges, another University of Chicago security officer, testified. He received Officer Grames' broadcast in which Grames stated he was in pursuit of two rape suspects and asked for assistance and proceeded to 55th and Cottage Grove where he saw two black males in a green foreign car. Hodges, in uniform, pulled his car about two feet in front of the green car and turned on his mars lights. He kept the suspects in full view and told them to get out of the car. The two suspects slowly exited the car and immediately ran down the street. Hodges identified defendants as the suspects by pointing them out in court. The prosecutor asked if Hodges had ever seen defendants before. Hodges responded that he had seen Thomas in the area on at least two different times and had kept him under surveillance. Defense counsel then objected to the relevancy of this testimony. The court ruled that it was relevant to prove identification. Hodges, on cross-examination, testified that his security car was white with a maroon decal on the side and that it was not a typical Chicago police squad car. After Hodges' testimony, the court recessed until 10:30 the next day at which time defense counsel Ewell was present.
The parties stipulated that if Rodney Black, a chemist and microanalyst for the Chicago Police Department, testified he would testify that specimens from a cervical smear of the victim tested positive for human spermatozoa. It was further stipulated that the car in the State's photograph in evidence was registered to Bernardo.
Angela Billips testified on behalf of defendants. She was with defendants on July 22, 1977. Bernardo was driving, she was in the front seat, and Thomas was in the back. They stopped while Thomas went into the drugstore and when he returned the complainant was with him. The four drove to a wooded area off the expressway where Thomas and complainant left the car, saying they would be back shortly. About five minutes later they returned. Ms. Billips testified that they then drove to her house where she and Bernardo went in. Thomas and complainant stayed in the car and she did not see the girl again that evening. On cross-examination Ms. Billips testified that she had known Bernardo for three years but didn't date him. She did not know defendants had been arrested following the incident, although she had seen them thereafter. Until a month before trial, she had never told anyone that she was with defendants on July 22, 1977. She did not think there was anything unusual about what happened that night.
Thomas testified that he had gone to the drugstore with his brother Bernardo and his brother's fiancee, Angela Billips. He saw the complainant in the store where he struck up a conversation with her, and she came back to the car voluntarily. According to Thomas, he and the complainant began to kiss and caress, when she suggested that they drive out to the woods and have some fun. They drove out to a wooded area where he and complainant left the car. They walked a short distance, agreed on a spot, and she began undressing. She then began to complain about the mosquitoes so they went back to the car. Thomas stated that Ms. Billips indicated she was not feeling well and wanted to go home. They then drove to her house and Bernardo and Ms. Billips went inside.
Thomas further testified that while the others were gone he and complainant had sex in the car. After having sex, she asked him for money. He told her it was not worth it, that he had got what he wanted and that she should get out. She then left the car. Thomas waited in the car until his brother came back and then they drove off. Suddenly a white car came out of nowhere and stopped in front of them. "One guy" waived a gun and said, "You black M.F.'s get out of there." Thomas testified that they were scared so they got out of the car and ran. He did not see the man wearing a uniform nor did he see any markings on the car. He did not take any money from complainant nor did he hit her. His brother Bernardo did not have intercourse with complainant.
The jury returned a verdict finding defendants guilty of rape and not guilty of robbery. At the sentencing hearing, the State in aggravation introduced a certified copy of Bernardo's prior conviction of attempt murder. The State then called Ms. "C" in aggravation as to Thomas. Defense counsel objected, noting that Ms. "C" was the complainant in a pending indictment against Thomas, charging an offense about six weeks prior to the date of the instant case. ...