APPEAL from the Circuit Court of Cook County; the Hon. BRIAN
B. DUFF, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant, charged with one count of rape and one count of deviate sexual assault, was tried before a jury. During the State's closing argument on rebuttal, the trial judge sua sponte declared a mistrial and thereafter dismissed the charges and discharged the defendant. The State appeals pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(1)). The sole issue raised on appeal is whether the mistrial bars defendant's reprosecution on double jeopardy grounds. We reverse and remand.
The complaining witness, her husband, the arresting officers, the investigating officers and an assistant state's attorney testified for the State. According to the alleged victim (victim) she was on her sister's porch at 8 p.m. on July 13, 1978, with defendant, her sister, two friends, her nephew and two nieces. Everyone was drinking except the victim, who was on medication. Defendant offered to take the victim to the store to buy soft drinks and cigarettes, and she agreed. On the way, she assented to viewing a bar defendant was building in a basement apartment on South Homan Avenue. Once there, defendant asked the victim to have sex with him. She declined; he offered her money and tried to force money into her hands. She threw it on the table. She tried to leave, and defendant pushed her back, hit her below her eye, knocked her down, choked her, pulled her clothes off and forced her to perform vaginal and oral intercourse with him, without her consent and after she fought him. Defendant fell asleep, and she left the basement for her home, told her husband of the rape and called the police.
The police testified they found defendant asleep in the basement apartment, where they arrested him. At the 10th district police station, defendant agreed to relate to the police what had happened. According to testimony of a police investigator and the assistant State's Attorney to whom he repeated his story, defendant stated he offered the victim $20 to have sex with him and she agreed. She had consumed two pints of whiskey while she was in the basement apartment. Defendant also said, "I'm a man. She's a woman. That's what women are for." Following this testimony, defense counsel moved for a mistrial on the ground that the defense was not informed of this statement on discovery. The trial court reversed its ruling until the close of the State's case, but no such ruling was in fact made.
Defendant testified on his own behalf that on the night in question he joined the victim and several other people on a porch at 8:45 p.m. She was drinking and smoking marijuana. He talked with her for 1 1/2 hours, gave her $5 to purchase drinks and gave another man $5 for marijuana at her suggestion. She asked defendant for more liquor, and he told her he would give her liquor in the recreation room at a S. Homan address as well as $20 if she would have sexual intercourse with him. Her sister agreed to watch her children, and they left for the basement on Homan. She did not ask defendant to take her to the store. After drinking for 1 1/2 hours at the apartment, defendant gave the victim $20 which she accepted, and defendant had sexual intercourse and oral sex with her without objection and without force. He denied he struck or pushed her; however, he stated she fell and hurt her hip at the apartment. After defendant testified, the defense rested.
The assistant State's Attorney indicated that the State anticipated calling in rebuttal an individual who was on the porch on the evening in question, who would testify that he did not see the victim drinking and that she had said she was going to the store to buy "pop." The court ruled that the proposed testimony was not proper rebuttal since it went to the issue of the consent defense which had been raised in the opening statement and was known to the prosecutor in advance, and did not allow the introduction of the testimony. The State thereafter rested.
During closing argument, defense counsel stated:
"Let's start with the discussion on the porch. Who was on the porch when * * * [defendant] and * * * [the victim] were on the porch? [Her] * * * sister, * * * [a friend] and [her] * * * two nieces and nephews.
Where is her sister, where are her nieces and nephews?
Where * * * are these people; why weren't they on the [w]itness stand to corroborate her testimony?"
The court overruled the State's objection that the argument was improper because the witnesses were equally available to both sides and because the argument was not supported by the record. Defense counsel continued to argue, in part:
"First, where are the witnesses that were on the porch?
State witnesses did not corroborate her testimony. They weren't there during conversations with her. Other people were but they did ...