APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH J. JUEN, Judge, presiding.
MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
At a bench trial defendant, Larry Watson, was found guilty of rape and was sentenced to a term of imprisonment of six years. On appeal he raises the following issues: (1) whether the trial court erred in denying his motion in limine; (2) whether he was denied effective assistance of counsel; and (3) whether the trial court erred in denying defense counsel's motion for a continuance. Since no issue is raised as to reasonable doubt, a complete recitation of the facts is not warranted. Only those facts pertinent to the issues raised will be provided as required.
The motion in limine sought to exclude testimony pertaining to defendant's participation in a prior offense for which he was not currently on trial. The trial court denied the motion after reviewing statements given to the police by the instant victim and the victim of the unrelated offense. The court found the details of the incidents to be so related as to reflect a similar modus operandi. The court went on to note that the probative value of the evidence of the other offense outweighed its prejudicial effect.
In ruling on the motion the court presented a detailed summary of the victim's statements. Both victims were young black females who were abducted in the early morning hours by a man driving an automobile. Each woman was offered a ride, and when she refused she was forced into the vehicle at gun point. The instant victim, Cynthia, described the weapon as a .38-caliber snub nose while Clara, the victim in the other offense, described the weapon drawn on her as a big-barreled pistol. As each woman entered the vehicle, she was instructed to keep her head down. The instant victim described the automobile as a powder blue Ford Thunderbird with a powder blue crushed velvet interior. The other victim described the vehicle as a light blue Buick with a crushed velvet interior. Each woman was driven around for a period of time while her abductor engaged in conversation concerning her personal life. One victim was later forced into the trunk of the automobile whereas the other was threatened that if she did not cooperate she would be placed in the trunk. Each rape occurred in a building. Each woman, prior to intercourse, was requested to remove her bottom clothing and was initially naked from the waist down. The abductor achieved an erection and climax in each rape. The court found this to be significant, taking judicial notice that rapists frequently fail to ejaculate. Each woman's rape was followed by a deviate sexual act. The abductor attempted anal intercourse upon one, and he forced the other to place his penis in her mouth. Cynthia described the abductor as being five feet nine inches tall with neat afro hair and neat sideburns. Clara described her attacker as being tall, with a mustache, heavy eyebrows, neat afro and long, neat sideburns. At trial each woman made an in-court identification of defendant as the man who assaulted her.
Ordinarily, evidence of unrelated offenses is inadmissible. As a general exception, however, evidence of other crimes is admissible to establish identity, absence of mistake or accident, motive, knowledge, or a common scheme or design. (People v. Lehman (1955), 5 Ill.2d 337, 128 N.E.2d 506.) Other courts> have included in this list of exceptions modus operandi, which is nothing more than circumstantial evidence of identity, the rationale being that crimes committed in a similar manner suggest a common author. People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489; see People v. Gleason (1962), 36 Ill. App.2d 15, 183 N.E.2d 523.
In People v. Therriault (1976), 42 Ill. App.3d 876, 356 N.E.2d 999, the court held that the following points of similarity established a distinct modus operandi: (1) the rapes occurred within similar apartment buildings located within five blocks of each other; (2) entry in each case was through a kitchen window of a ground floor apartment; (3) a gun was used in each offense; (4) the victims were raped in a bedroom; (5) the attacks took place in the early morning hours; (6) each attack lasted approximately 15 minutes; (7) the rapist stole money from the purse of the victims; and (8) the offenses occurred one month apart.
In People v. Emmett (1975), 34 Ill. App.3d 167, 340 N.E.2d 235, the points of similarity were: (1) the victims both lived in buildings with elevators and the buildings were five blocks apart; (2) a knife was used in both attacks; (3) the rapist also performed identical acts of sexual deviancy; (4) the rapist initiated conversations with both women; and (5) the rapist asked for money in each case but took none.
We find the points of similarity in the instant case to be as compelling as those in Therriault and Emmett. Here the rapist's victims were both young black women. They were accosted by a man driving an automobile of a similar color with a similar interior. A handgun was used in each case. Each woman was ordered to keep her head down as she entered the vehicle. The rapist in each instance inquired as to his victim's personal life. One woman was placed in the trunk whereas the other was threatened that she would be placed in the trunk. Each woman had her clothing initially removed from the waist down, and both were raped in a building. Following each rape was a deviate sexual act. The totality of the similarities between the two rapes strongly suggests the actions of the same person.
In arguing that evidence of the prior rape should not have been admitted, defendant underscores the following differences in the two incidents: (1) different pistols were used; (2) different automobiles were used; and (3) different deviate sexual acts were performed. However, we find it significant that each case involved a pistol, an automobile, and deviate sexual behavior. Defendant further argues that no single factor in the two incidents was unique. We do not find this controlling. The significant aspect is the similarity of the rapist's conduct in each of the offenses. Moreover, it should be noted that placing one victim in a trunk of a vehicle and threatening to do so to another cannot be said to completely lack uniqueness.
• 1 Where the other rape shares so many similar features with the instant offense, we conclude that the testimony of the first victim was properly admitted to establish identity and that the trial court did not err in denying defendant's motion in limine.
Defendant also argues that as a result of the erroneous denial of his motion in limine, his right to a trial by jury was adversely and involuntarily affected. In view of our holding that the trial court properly denied the motion, we find no merit to this contention.
Next, defendant contends that he was denied effective assistance of counsel where his privately retained counsel pursued a line of cross-examination which ultimately revealed that seven women had identified defendant as being a rapist in a lineup. During cross-examination of the victim in the case at bar, defense counsel asked where she was sitting during the lineup in relation to the victim in the prior rape. She replied that there were three other women between them. Continuing, counsel asked who these women were, and Cynthia answered that they were the women who had been raped. Defense counsel pursued this line of questioning and elicited from Cynthia that seven women in all had identified defendant. However, when pressed as to how she knew the other women at the lineup identified defendant, she replied that she was unable to explain how she arrived at this conclusion. Defendant urges that as a result of defense counsel's line of cross-examination, it was suggested that six other women had been raped.
Defendant contends that his retained counsel's representation would not satisfy the "minimum standards of professional representation" test employed by some Federal jurisdictions, citing Cooper v. Fitzharris (9th Cir. 1978), 586 F.2d 1325, United States v. Bosch (1st Cir. 1978), 584 F.2d 1113, United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634, and People v. Murphy (1978), 72 Ill.2d 421, 381 N.E.2d 677 (Clark, J., specially concurring). In the alternative defendant argues that the level of representation reduced the proceedings to no more than a sham and a farce, thereby denying defendant a fair trial.
• 2, 3 This court has recently held in People v. Scott (1981), 94 Ill. App.3d 159, 418 N.E.2d 805, that the test for determining incompetency of retained counsel and appointed counsel is the same and that a defendant is entitled to a new trial if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant, without which the result of the trial probably would have been different. (See Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L.Ed.2d 333, 100 S.Ct. 1708; People v. Murphy; People v. Greer (1980), 79 Ill.2d 103, 402 N.E.2d 203.) Trial counsel's competency will not be judged by a court of review on the basis of errors in judgment or trial strategy. (People v. Atkins (1980), 81 Ill. App.3d 661, 402 N.E.2d 383; People v. Thompson (1978), 66 Ill. App.3d 141, 383 N.E.2d 690.) Nor may proof of prejudice be based on mere conjecture or speculation. People v. Hills (1980), 78 Ill.2d 500, 401 N.E.2d 523; People v. Witherspoon (1973), 55 Ill.2d 18, 302 N.E.2d 3.
The cross-examination of the victim by defense counsel is as follows:
"Q. Cynthia, when was the first time you met Clara * * * [the other rape victim]?
Q. And I take it you had no conversation with her during ...