APPEAL from the Circuit Court of Cook County; the Hon. EUGENE
PINCHAM, Judge, presiding.
MR. PRESIDING JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
The defendant, Michael Mormon, was charged by information with armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2), rape (Ill. Rev. Stat. 1977, ch. 38, par. 11-1), deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11-3), and two counts of armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2), one based on rape and the other on armed robbery. After opening arguments, the defendant moved to strike both counts of armed violence. The trial court struck the count pertaining to the armed robbery. Following a bench trial, the defendant was convicted of armed robbery, rape, deviate sexual assault, and armed violence based on rape. He was sentenced to 20 years for rape, 15 years for armed robbery, 20 years for armed violence, and 25 years for deviate sexual assault.
The defendant argues on appeal that: (1) the trial court erroneously admitted into evidence a facsimile of a computer-generated contract as it failed to fall within the business records exception to the hearsay rule; and (2) that he was erroneously convicted and sentenced on both the rape and armed violence charges because both arose from the same physical act. We affirm in part and reverse in part.
The complainant testified that on March 7, 1978, she returned home to her high-rise apartment building between 4:30 and 5 p.m. and took the elevator to her apartment. Before the elevator reached her floor a man entered the elevator and rode up to her floor with her. The man carried a cardboard box and informed her that he was selling candy for charity. When the elevator reached her floor the complainant and the man exited. The man began knocking on her neighbor's doors, however, when the complaining witness unlocked her door, the man held a pistol to her back and ordered her to enter the apartment. Once inside the apartment the man took the complainant's wallet, credit cards, one of which was a Visa card with account number 4678-7700-38973, check-cashing cards, and a leather coat. He then took her into her bedroom where he first forced her to commit an act of oral sex with him and then intercourse. Before leaving the apartment, the defendant tied the complainant's hands behind her with a telephone cord. After freeing herself, she contacted the building security guards who contacted the police. During the incident, which covered approximately 45 minutes, the complainant had the opportunity to view the defendant, although the only light on in the apartment was in the bathroom, because it was just becoming dusk and each room had windows covered only with sheer drapes. It was stipulated that medical testimony confirmed the fact that the complainant had been raped.
Immediately after the incident the complainant described her assailant to the police as a 24-year-old black man with a moustache and black straightened hair. From March 7, 1978, to September 20, 1978, the complainant viewed police photographs and attended a police lineup. She made no identifications however. Then on September 20, 1978, she identified the defendant from one of a group of photographs brought to her place of employment by a police investigator. She again identified the defendant on September 22, 1978, in a lineup conducted at the Area 1 police station.
Police Officer Robert Fields, an investigator for the Chicago Police Department, testified for the State that he was assigned to investigate this case and that incident to that assignment he interviewed the complainant within a few days of the incident. While he could not remember whether the complainant told him that her assailant weighed about 140 pounds, he did think that she told him that her assailant was between 5'4" and 5'7", had black hair, and was between the age of 17 and 24. Officer Field's police report failed to indicate that the complainant gave a description of the offender's hair or eye color or a description of his facial characteristics. Officer Field also testified that he brought photographs to the complainant's apartment and also had her look at high school yearbooks. She made no identifications from any of these photographs. Michael Mormon's photograph was not included among these photographs. On September 19, 1978, according to Officer Field's testimony, he received a fingerprint card with the name Nahid Saadiq from the Lombard Police Department and gave that to the Chicago Police Department Bureau of Identification which in return provided him with a photograph. He and his partner took that photograph along with seven others to the complainant on September 20, 1978, and she identified one of the photographs as that of her assailant. Following this identification Fields arrested Michael Mormon.
Officer Pruim from the village of Broadview Police Department testified that on March 11, 1978, after monitoring a radio broadcast, he stopped a tan Cutlass with a license plate number AV 4701 and took a man and a woman into custody. The woman identified herself as Terry Foster, and the man identified himself as Nahid Saadiq. All of the information received from the man came from the driver's license he provided. Subsequent to his arrest, the man was turned over to the Lombard Police Department. Therefore, he was neither photographed nor fingerprinted by the Broadview Police Department. Officer Pruim identified the defendant Michael Morman as the man he arrested on March 11, 1978, who had identified himself as Nahid Saadiq. Officer Pruim testified that the man he arrested on March 11, 1978, from the car bearing license plate AV 4701, and the man known in the instant case as Michael Mormon, were one and the same. His testimony was corroborated by the testimony of a Chicago fingerprint technician who compared fingerprints taken by the Lombard police of Nahid Saadiq and prints taken of Michael Mormon and found them identical.
Two witnesses testifying for the State identified a Texaco sales invoice which revealed that on March 8, 1978, a Visa card in complainant's name bearing card number 4678-7700-38973 was used to purchase $14.60 worth of gasoline at William's Texaco located at 75th and Jeffery in Chicago. The invoice contained the license plate number of the party purchasing the gas; however, the number was not totally clear on the Visa copy of the invoice. The license plate number was clear, however, on the Texaco copy of the invoice and indicated that the gasoline was purchased for a car bearing the license plate AV 4701. Neither witness had been at the gasoline station in question at the time of the transaction nor had either talked to the attendant who had sold the gas, so neither knew anything concerning the party who purchased the gas with the complainant's Visa card.
Also testifying for the State was Joseph Miller, security manager for Avis Corporation. Mr. Miller's duties were to provide security for the rental vehicle fleet and the corporate locations and to obtain documents necessary for investigations conducted concerning lost or stolen cards. His testimony was the subject of a motion in limine denied by the trial court regarding the introduction of any evidence relating to an Avis Rent-A-Car in which Michael Mormon was allegedly a passenger. He identified People's Exhibit Number 6 as a facsimile of an Avis rental agreement pertaining to the rental of an Avis automobile bearing Illinois License number AV 4701 and paid for by complainant's Visa card number 4678-7700-38973. The facsimile indicated that the rental occurred on March 8, 1978, one day after the alleged armed robbery and sexual assault of the complainant. Miller explained that the information on the rental agreement was obtained in the regular course of business and that it is in the regular course of business for Avis to keep such information. According to his testimony, the information on the form was collected by the rental agent from the lessee at the time the vehicle was rented. The information was then simultaneously entered on a form rental agreement and into the computer by use of the computer's console typewriter. Avis keeps the original of the written agreement and gives the other copies to the customer. The computer holds the information from the rental agreement for about six months and then the information is converted to microfilm which is stored at the Avis headquarters in New York. Mr. Miller testified that he looked for the original of the rental agreement, and when he was unable to find it ordered the facsimile to be made from the information stored on the microfilm. The facsimile of the agreement was not signed but did indicate that the signature was on file.
Defense counsel objected to the introduction of this evidence on the grounds that it violated the best evidence rule in that it was not made in the regular course of business but rather prepared at the request of the witness, that the document was hearsay, and because there was no foundation for showing that the defendant was connected to the car or the rental agreement. The objection was overruled and the document was admitted into evidence.
Officer Gertha Booth was called to testify for the defense. She interviewed the complainant on the night of the incident and accompanied her to the hospital. She was told by the complainant that her assailant was a black, 5'7", 140-pound male of about 24 years of age with a moustache and black straight hair. During the interview the complainant was nervous, upset, and hysterical.
The defendant testified in his own behalf that he was 5'11" and 160 pounds. He denied that he was at 4250 South Lake Park on March 7, 1978, that he raped or robbed the complainant, or that he had ever seen her prior to the lineup of September, 1978. He testified that he had a goatee and a moustache on March 7, 1978. His testimony regarding whether he wore his hair straight on this date was contradictory.
As to the events of March 11, 1978, the defendant testified that he was picked up in the morning by his friend Diane Thunderbird and that they went to Lombard. While in Lombard, they stopped at a Jewel grocery store. To his knowledge his friend was not also known as Terry Foster. He and his friend were heading back to Chicago from Lombard when he was arrested and taken first to the Broadview police station and then to the Lombard police station. When he was arrested the police officer took information from a driver's license belonging to his friend, Nahid Saadiq. They did not ask him his name and he signed the name appearing on the paper that they gave him and on a fingerprint card. The defendant further testified that in September 1978, he was arrested by Officer Field and taken to the police station and fingerprinted. On cross-examination he denied telling Officer Field that he was not arrested on March 11, that he told Field that a friend, Pete Martin, was the person arrested with Diane Thunderbird, or that he was 5'9" and weighed 150 pounds. He denied ever seeing the complainant's checkbook or credit cards or sending them back to her. He did admit that he was placed in a lineup on September 22, 1978.
Diane Thunderbird testified that she had known the defendant and had a child by him. She said that from the time she first met him until October 1978, when he had an operation, the defendant had a noticeable limp from an accident. Ms. Thunderbird testified that on March 11, 1978, she picked up the defendant in an orange car that had been given to her by a friend named Adrian who was now in the penitentiary. While she only assumed that Adrian had rented the car, she knew defendant did not have anything to do with renting the vehicle. She and defendant drove to the Jewel store in Lombard. She was the driver. On cross-examination, over defense objection, she identified a check made out to an Ann Riley and stated that she had endorsed that check and cashed it on March 11, 1978. The check, number 5218, was given to her by her friend Adrian and was drawn by Marine Sales. It was the only check given to her by Adrian. She did not receive any credit cards from Adrian. The witness was then shown a second check drawn by Marine Sales numbered 5234 and ...