APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. SKLODOWSKI, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of rape and armed violence and sentenced to extended concurrent terms of 60 years on both counts. On appeal, it is contended that (1) he was denied the effective assistance of counsel, his right to confront witnesses, and to a trial free from hearsay evidence; (2) his age was not proved beyond a reasonable doubt; (3) the court erred (a) in allowing the State to introduce a statement made by defendant at the time of his arrest, (b) in failing to properly instruct the jury, and (c) in sentencing him to extended terms.
The record discloses that on the date set for trial, a motion of defense counsel to withdraw because his fee was not paid was denied, and he then moved in limine to preclude the testimony of a witness and the use of oral admissions made by defendant at the time of his arrest. After the State responded that the witness would not be called and that one of the statements would not be used, the court ruled that a statement concerning the location of defendant's gun would be admitted "if properly testified to."
The complaining witness, a 16-year-old student living at home with her family, testified that she had finished jogging at about 8:15 a.m. in a park near her home when she noticed a man wearing blue jeans and a blue jacket approaching. She then saw him put a T-shirt mask over his face and, when he came close to her, he produced a gun and pulled her into a gangway where he asked whether she was a virgin. She answered that she was, and then he said he was going to have sex with her. When she resisted, he pointed the gun at her, threw her to the ground, and pulled her shorts down. She was screaming and crying for help, but he forcibly inserted his penis into her vagina while covering her mouth with his hand at times. While he was on top of her with the gun pointed at her head for about 10 minutes, she saw his face three times when the mask was blown away. On each of the first two occasions, she saw his face for 2 to 3 seconds and on the third for about 5 seconds. After defendant left the gangway, she dressed and ran toward the street where she saw a police officer in a squad car. She gave a description of her assailant to the officer, following which she was taken to a hospital where she was examined. The police then brought her to a police station where, from a lineup, she identified defendant as her attacker.
Officer Kappel testified that at approximately 8:30 on the morning in question, he was on patrol in his squad car when he received a simulcast of a rape in progress and, upon arriving at the scene a few minutes later, he saw a young female standing on the curb who was crying and appeared to be very upset. She told him that she had been raped and, in response to his request, she described her assailant as a male Latin, 25 years old, heavy-set, about 185 to 190 pounds, approximately 5'8" in height, short dark hair with a thin mustache and a goatee. She also said that he was carrying a handgun and was wearing a blue jacket and blue jeans. He immediately put the description of the man on the air and searched the area with the victim for about 10 minutes before driving her to the hospital.
Officer Shadder testified that he was on patrol when a simulcast came over the air "of a girl screaming for help at 2701 South Tripp." When he arrived there, Officer Kappel was escorting a young girl to his car and, after she described her assailant, he and other officers began to search the area. About 25 minutes later, he observed a man with a mustache and goatee, who was wearing blue jean pants and a blue nylon windbreaker, running in front of his car. He announced on his police radio that he had a suspect and, after following the man in his squad car, he chased him on foot through gangways and eventually caught him.
Officer Whalen testified that he arrived at the scene as Officer Shadder was chasing defendant, and he followed them on foot until Shadder caught him. After defendant was informed of his rights, he asked where the gun was and defendant answered, "It is back there. I will show you where it is at." Defendant then led them to a backyard where they found a gun in the grass.
Assistant State's Attorney Frost testified that he conducted a six-man lineup at the station and that as soon as the victim viewed the lineup she pointed to defendant and stated, "That is the man."
Evidence technician John Butler testified that he examined the gun and bullets but was unable to lift any prints. Michael Zefeldt, a microanalyst, testified that he examined smears taken from the victim and observed the presence of semen, that he found human blood on her cutoffs and underwear and also on the front of defendant's shirt and blue jeans, but that he had not determined blood-types while analyzing the clothing samples. A doctor who had examined the complaining witness at the hospital testified that her vagina had been lacerated and that pap smears were taken and sent to the laboratory.
After the State rested its case, a defense motion for a directed verdict was denied and the defense called as its sole witness defendant's sister, who testified only to defendant's addresses and appearance at the time of and prior to the occurrence in question.
After defendant was found guilty, a motion for new trial was made which, among other things, stated that defendant's counsel had been out-of-town and had not seen a copy of the laboratory report regarding blood stains on the victim's and defendant's clothing and thus did not know prior to trial that the blood stains on defendant's clothing were suitable for blood-type comparison and, because the State did not conduct blood-type comparison tests which may have established defendant's innocence, he asked for a new trial. The State, in response, stated that a copy of the lab report had been personally delivered to counsel's office 4 to 5 days before trial, that defense counsel had an opportunity to request additional blood tests during trial but did not, and further that the other evidence proved defendant guilty beyond a reasonable doubt.
After the motion for new trial was denied, a hearing on aggravation and mitigation was held during which the court was informed that defendant was convicted in 1968 of rape and aggravated battery and released on December 17, 1971. On that basis and because of the circumstances surrounding defendant's conduct in the instant crime, the State asked for an extended sentence. The State called two witnesses in aggravation, one of whom testified that she had been raped by defendant in 1977 and the other that she had been sexually assaulted by defendant in 1974. Applying the extended-term statute, the court sentenced defendant to concurrent terms of 60 years for rape and armed violence.
Defendant first contends that he was denied effective assistance of counsel. In support of his position, defendant says that his trial attorney never interviewed him before trial as to possible defenses, had not seen discovery materials transmitted to his office by the State until the day before trial, made no pretrial discovery motions, did not move to quash his arrest, made no motions to suppress statements, identification or the lineup, made no opening statement, failed to object to hearsay evidence, failed to present jury instructions, allowed improper instructions, and failed to request blood-type tests from defendant and the victim.
In response, the State argues that those allegations are unsupported by the record and, in any event, that many of the trial attorney's decisions were tactical, matters of trial strategy, and based on hindsight evaluations.
It is clear that there is no simple formula or set of guidelines to aid in the consideration of the competency of counsel, but it has been held that such determination must include an examination of the totality of trial counsel's conduct at trial (People v. Murphy (1978), 72 Ill.2d 421, 381 N.E.2d 677; People v. Smith (1980), 81 Ill. App.3d 764, 401 N.E.2d 1017), and that each case must be judged on the basis of its own facts in the context of the proceeding in question (People v. Morris (1954), 3 Ill.2d 437, 121 N.E.2d 810). It has also been held that a review of competency of counsel "does not extend into areas involving the exercise of judgment, discretion or trial tactics by counsel, even though appellate counsel and the reviewing court might have acted in a different manner." People v. Smith (1980), 81 Ill. App.3d 764, 773, 401 N.E.2d 1017, 1023.
The cases have applied a standard in determining the competency of privately retained counsel different from that applied to those who are court-appointed. In People v. Murphy (1978), 72 Ill.2d 421, 436, 381 N.E.2d 677, 685, the court stated the following as to privately retained counsel:
"`In such a case the court will not reverse a conviction because of the incompetency of counsel unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or sham.' People v. Torres (1973), 54 Ill.2d 384, 391. See also, e.g., People v. ...