APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
CAREY, Judge, presiding.
JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, William Patten, was charged with rape, deviate sexual assault, and aggravated kidnapping. After a jury found him guilty of rape, the court sentenced him to a term of 6 years. On appeal defendant contends that he was denied his right to a jury trial when the court accepted a verdict on less than all the charges; that the court erred in admitting testimony of a telephone conversation between a witness and defendant; and that the court erred in permitting an assistant State's Attorney to testify about an inculpatory statement made by defendant.
Complainant testified that at 10:30 p.m. on September 6, 1979, as she entered an alley, defendant placed a weapon to her head and forced her into a parked automobile. Another man, not involved in this appeal, drove to an apartment where both men raped and struck her. Although defendant tied her scarf across her eyes she was able to see through it. She identified a photograph of defendant and identified him at a lineup. A police officer and an assistant State's Attorney testified to an inculpatory statement made by defendant that he threatened to kill complainant, took her to an apartment and had sex with her.
Carolyn Martin, a neighbor of defendant's, testified that on September 10, 1979, she received a collect telephone call from defendant. He admitted the rape and asked the witness to testify that on September 6 she saw him and a woman holding hands as they entered an apartment.
At the close of the evidence, the jury was instructed on rape, deviate sexual assault, and aggravated kidnapping, and retired to deliberate. The following colloquy later ensued:
"COURT: Mr. Foreman, have you reached a verdict with respect to at least one of the three counts?
FOREMAN: Yes, that is right.
COURT: May we have the verdict?
FOREMAN: Guilty on the charge of rape.
COURT: This is the verdict brought in by the forelady. We, the Jury, find the defendant, William Patten, guilty of rape."
The jury was polled and each juror reaffirmed the verdict as his own.
The court then stated to the jury:
"You have sent me in this question which is a point of law: Wherein a person is confined against her will during the act of rape, does that constitute aggravated kidnapping?"
The court declined to answer the question and stated that the jury should deliberate further on these counts. The court entered judgment on the verdict, and revoked bond. Thereupon, the State moved to nolle prosse the remaining charges, and, over defendant's ...