APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. MASSEY, Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of rape, deviate sexual assault, robbery, burglary, and home invasion. (Ill. Rev. Stat. 1979, ch. 38, pars. 11-1, 11-3, 18-1, 19-1, and 12-11, respectively.) The trial court sentenced him to serve three 25-year prison terms and two 14-year terms, to run concurrently. On appeal, defendant contends that (1) by erroneously admitting "modus operandi" evidence that defendant had committed two other rapes, the trial court denied defendant a fair trial; (2) because the State failed to prove the elements of robbery and home invasion, the convictions on those counts must be reversed and the defendant resentenced; (3) the court erred in tendering to the jury five "guilty" verdict forms and only one "not guilty" form, which may have confused the jury; and (4) newly discovered evidence requires that defendant be granted a new trial.
Defendant was indicted for the rapes of three women, C.R., K.K., and G.S. The prosecutors elected to try defendant on the third indictment only and to call the other two women as witnesses for the prosecution. In a pretrial motion in limine defendant sought to bar the testimony of the other two alleged rape victims. The trial court denied the motion, holding that the evidence was admissible to show defendant's modus operandi or identity.
The trial began on February 4, 1980. The complaining witness, G.S., testified as to the events of February 16, 1979, when she was raped in her apartment. After leaving work at 5 p.m., she stopped at a grocery store two blocks from her home. She arrived at her second floor apartment in the 1300 block of West Greenleaf in Chicago at 7 p.m. After showering, dressing, and straightening the apartment she began to cook dinner. She partially opened her back door because the kitchen had become warm. Approximately 15 minutes later the electricity in her apartment went off. She then went upstairs to a neighbor's apartment and her neighbor accompanied her to the basement where they found that two electrical circuit breakers were in the "off" position. After returning to her apartment, G.S. entered her bedroom and began to brush her hair. It was now about 8 p.m. Noticing a strong odor that smelled of stale clothes, she looked around for the source. As she approached the bedroom closet the door flew open and a man leaped out. G.S. later identified the man as defendant, and testified that she had a clear view of his face.
G.S. further testified that after he came out of the closet, defendant grappled with her and they travelled across the room until she fell on the radiator. Defendant fell on top of her and grabbed her throat, choked her, and told her to stop screaming or he would stab her. He also demanded money, which she said was in her purse. Defendant then pulled her up from the floor and threw her across the bed, where she lay on her back at a right angle to the normal sleeping position. Still choking G.S., defendant removed her jeans and pulled her shirt up. He also pushed a pillow over her face. Defendant then pulled down his own pants and had sexual intercourse with the victim for several minutes. During this time she pushed the pillow off her face several times. Next defendant stood, pulled G.S. up by the hair and neck, and forced her to perform fellatio on him. Afterward, he pushed her back on the bed on her stomach and again forced her to have sexual intercourse for several moments. After he finished, he left her on the bed and went into the living room. She heard him rummaging around. He reentered the bedroom three times to say to the victim that he knew he had done something wrong and to ask if she would turn him in.
After defendant left, G.S. went to her neighbor's apartment to call the police. She discovered later that $35 in cash and a number of record albums were missing from her apartment. When police arrived she described her assailant as a white male in his early twenties, approximately 5'8", 120 pounds, with a full, round face, wearing a blue knit cap and a khaki jacket. Subsequently, she picked defendant's photograph from a book of photographs and also identified him in a lineup.
The physician who attended G.S. when she arrived in the emergency room of the hospital testified that she had appeared to be extremely agitated. Also, she had bruises, scratches, and abrasions on her body. The doctor further testified as to the results of a pelvic examination he performed on G.S. According to stipulated evidence, a smear taken from G.S. indicated the presence of spermatozoa in her vagina.
Police officers also testified as to their investigation of the February 16, 1979, occurrence and to their subsequent procedures relating to the photo identifications and lineups.
Next to testify was C.R., who related the circumstances of February 5, 1979, when she was raped in her apartment in the 1300 block of West Greenleaf. She left work at 5 p.m., stopped at the grocery store, and then returned to her apartment. She went into the bathroom to undress. She then heard a sound and saw a man enter her apartment through the door. She later identified this man as defendant. C.R. closed the bathroom door and grabbed a back brush to use as a weapon. Defendant forced his way into the bathroom and grabbed her around the throat. He also threatened to stab her, although he did not show her a knife. He then forced her into the bedroom and onto the bed. He held her on her back across the bed at a right angle to a normal sleeping position. After she refused to remove the thermal underwear she was wearing, he choked her again and pulled them off. He also fondled her and kissed her breasts. Defendant then unfastened his own pants and had sexual intercourse with her. Defendant fastened his pants and told C.R. to put the pillow over her head, but instead she pulled the covers up over her eyes. She heard him tell her to stay there. After about 20 seconds she heard defendant leave. Then she called her sister from a neighbor's apartment.
Subsequently, C.R. talked to police and identified defendant from photographs and a lineup. In her testimony at trial, she recalled that her attacker was 18 to 20 years old and wore a blue knit cap, a nylon jacket, and a blue T-shirt with the word "Superkid" across the front.
The State's final witness was K.K. She testified that on January 29, 1979, she left work at 5 p.m. and went to her third floor apartment on West Farragut in Chicago. The light on the third floor landing was out and when she opened the door to her apartment, she was grabbed around the neck and choked from behind by a man who pushed her into the apartment. He kept pushing her, through the kitchen and dining room. She turned around and saw her assailant's face. In court, she identified defendant as her attacker. She said he wore a blue jacket, jeans, and a blue knit cap. She also described him as being 5'8" tall and approximately 24 years old.
After shoving K.K. into the bedroom, he pushed her onto the bed, at a right angle to the normal sleeping position. He slapped her when she tried to resist him. Then he removed her clothes and put a pillow over her face. He lowered his own pants and lay on top of K.K., kissing and fondling her. She removed the pillow from her face, and he slapped her again. He put his fingers in her vagina and then had sexual intercourse with her. Afterwards, he slapped her again and told her to shut up.
Defendant then left K.K. and entered the kitchen. He came back into the bedroom and demanded all of her money. He left and again returned, to tell her to shut up and stay put. After a few minutes, K.K. got up, saw that defendant had left, and called the police. She noted that her wallet was gone from her purse. She subsequently talked to the police and identified defendant from some photographs. She also identified him in a lineup.
After the State rested, defendant took the stand on his own behalf. His testimony, and that of fifteen witnesses, related to his alibi defenses to the rapes of G.S., C.R., and K.K. Regarding the January 29, 1979, charge involving the complaining witness, defendant testified that he had purchased a van that night and had worked on it with two friends, in the parking lot of the Big Pit restaurant until about 7 or 7:30 p.m. Then they went into the restaurant and stayed until about 8:30 p.m. From that time until about 10:30 or 11 p.m., defendant and six of his friends rode in the van for awhile. They returned to the restaurant at 11 p.m.
Defendant further testified that on the evening of February 5, 1979, he was with his girlfriend most of the day and evening. Defendant's girlfriend, her mother, and another person testified that defendant was at their house from 7 p.m. to midnight.
On February 16, 1979, defendant spent most of the night with friends, driving around in his van and drinking beer. According to the testimony of various defense witnesses, he was in the company of others continuously from 12 noon until about 11 or 11:30 that evening.
Defendant also denied owning a blue knit ski cap or a T-shirt that had "Superkid" written on it. He admitted owning a green Army jacket because he was in the Marines Corps Reserves. Other defense witnesses, personal friends of defendant for 6 years, stated that they had never seen him wear a hat of any kind and had not seen him in a blue ski jacket. One witness stated that defendant bought a "Superkid" T-shirt on January 30, 1979, but another witness said defendant owned a T-shirt that had "The Kid" printed on it.
Other evidence indicated that defendant was 18 years old at the time of the offense. He lived within three blocks of the apartments where G.S. and C.R. were raped. On January 31, 1979, ...