APPEAL from the Circuit Court of McHenry County; the Hon.
ROLAND A. HERRMANN, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Defendant, William K. Foster, was charged by information with one count of burglary, home invasion and attempt rape (Ill. Rev. Stat. 1979, ch. 38, pars. 19-1(a), 12-11(a)(2), 11-1(a), and 8-4(a)). After a jury trial, he was found guilty of each offense. The State nolle prossed the burglary count, and the court entered judgment against the defendant on home invasion and attempt rape. Defendant was sentenced to 10 years in the Department of Corrections. He appeals, contending that the trial court erred (1) in instructing the jury as to both home invasion and attempt rape, (2) in admitting certain items into evidence and, (3) in failing to grant defendant's motion for a mistrial alleging that a statement made by a prosecution witness was prejudicial.
The evidence adduced at trial revealed that at 2 a.m. on June 29, 1980, a man wearing a yellow tank-top T-shirt, a pair of jeans and brown laced boots entered the residence of David Rezab, went into the basement, and found 15-year-old Dawn Rezab there. He asked whether her father was home. When she replied that he was asleep and got up from her chair to go wake her father, he pushed her back down, put one hand over her mouth, pressed down on her throat with the other, and told her he was going to rape her. She began to scratch, kick and scream, awakening her father who came down to the basement and asked what was going on. The man released Dawn, pushed Rezab and wrestled with him while Dawn proceeded to call the police. The intruder then broke from Rezab's grasp and ran out of the house.
Later that morning, a car matching the description of one observed earlier by a neighbor of the Rezabs was seen by an Algonquin police officer. It was parked at an Arco station at the corner of Routes 31 and 62 in Algonquin, and the occupant appeared to make furtive gestures. When back-up officers arrived and approached the car, they found William Foster, the defendant, lying on the floor as though he was hiding, although defendant stated that he had been fishing. The police noticed that defendant had alcohol on his breath, and they observed a beer can in the car. The defendant was not wearing a shirt, but a yellow tank-top T-shirt, stained and wet with perspiration, was found in the car. He had scratches on his back and was wearing brown laced boots which were wet and had grass sticking to them. The Rezabs separately picked defendant's photo out of a group of seven in a photo lineup.
In August, defendant was also placed in a lineup of five people. Dawn narrowed her identification down to two numbers in the lineup and finally stated she would probably identify No. 1 as the perpetrator if she had to testify in court. Her father identified No. 5; the defendant was person No. 4. Mr. Rezab testified that defendant had had a haircut, had shaved his mustache, and did not wear his glasses at the lineup. Officer Schinkel of the Algonquin Police Department testified concerning the Rezabs' failure to identify the defendant at the lineup. The following colloquy ensued:
"[Defendant's attorney, Kelly]: But when asked whether she [Dawn] would testify, didn't she testify that someone was the other person [person no. 1]?
[Officer Schinkel]: You'd have to see the line-up. It was very bad. He changed his appearance quite a bit.
Q: You were conducting it, were you not?
Q: You were there, were you not?
A: Rolling Meadows Police Department conducted it.
MR. KELLY: Judge, I'm going to object. Wasn't responsive. I move it be stricken.
THE COURT: Sustained. Disregard it. Jury strike it."
In chambers, defendant then unsuccessfully sought a mistrial due to this remark. At the close of the State's case, the court admitted into evidence a yellow tank-top T-shirt which was found in defendant's car and a pair of brown ...