APPEAL from the Circuit Court of Du Page County; the Hon. CARL
HENNINGER, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Johnny N. Lane, was convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1) and sentenced to six years' imprisonment. He appeals contending that the trial court erred in: (1) denying his motions to suppress his confessions; (2) denying him the opportunity to present statistical evidence demonstrating black jurors were excluded from the jury pool; (3) denying his motion for a continuance; (4) allowing introduction of evidence inferring defendant had committed other crimes; and (5) denying disclosure of notes made by an assistant State's Attorney during an interview with the prosecutrix.
Evidence adduced at trial disclosed that on November 20, 1979, defendant and Jennifer ____ were students at North Central College in Naperville and had been acquainted for about two months. While on a date with another man that afternoon, she saw defendant, who asked her to stop by his room after her date to say goodbye because of the vacation period commencing the next day, and she agreed to do so. Jennifer and Billy Hawkins went to defendant's dormitory at 11 p.m. and, after the three visited for about 15 minutes, Hawkins left to see a friend in the dormitory next door, saying he would return in 20 minutes. Jennifer said she would wait for Hawkins in defendant's room and sat with him on his bed watching television and discussing football. Sherry Auclair, another student, stopped in, and after a short visit she also left defendant's room.
Jennifer testified that when defendant turned off the light and began kissing and hugging her she told him to stop and pushed him away. She attempted to leave the room, but he grabbed her and she struggled and screamed. She testified defendant choked her until she lost consciousness, and when she recovered he said he would use a knife on her if she did not cooperate. He then forced her to remove her clothes and engaged in intercourse with her on the bed. She was wearing a tampon while this occurred.
Michael Hende and Steven Beaty testified that at the time in question they were in Hende's room next door and heard a scream and the sound of glass breaking. They ran into the hall and from there heard a scream coming from defendant's room and someone say "get your hands off me, leave me alone." The noise stopped and they returned to Hende's room without investigating further. Ten minutes later they heard a bumping noise against the wall which they thought might be a couple "fooling around."
Billy Hawkins returned during this time period and asked defendant, who came to the door in response to his knock, if Jennifer was ready to leave. Defendant told him to return in about 30 minutes. The lights in the room were off, and Hawkins heard no screams or outcries. When Hawkins returned later Jennifer left with him. She was crying and told Hawkins that defendant had raped her after threatening her with a knife and choking her; she required his assistance to walk to her dormitory. Jennifer went to the room of friends where defendant appeared with a coat she had left in his room; he repeatedly said he was sorry. Jennifer was examined at a hospital and the doctor observed bruises on her neck and recovered a tampon during the pelvic examination which was described as being compressed. Photographs of Jennifer were offered in evidence which disclose a broad band of red marks across her throat.
Defendant testified in trial that sexual activities had occurred between them, with her consent, and that the red marks on her neck were caused by his kisses. He also testified they were social friends and had sexual relations on other occasions. Defendant's roommate testified Jennifer had visited defendant in his room on other occasions and he would then leave. Jennifer denied having ever gone out or having relations with defendant.
Also admitted in evidence was the testimony of Naperville police officers, Robert Murdock and Michael Cross, who had questioned defendant several hours after the rape complaint. They stated he orally admitted he had choked Jennifer and threatened her with a knife.
Letters written by defendant to Jennifer and Mary ____, another student at the college, after his arrest, were read to the jury. In his letter to Jennifer defendant stated, inter alia, that he knew that he had hurt her and was sorry; he asked her to drop the charges. In the letter to Mary, defendant mentioned he was in jail for raping Jennifer, stating, "I just lost my head" and did not know what he was doing.
Defendant made pretrial motions to suppress his confession which were denied by the trial court after hearing. Evidence was there offered that the Naperville police had received the rape complaint at 2 a.m. on November 21. They learned defendant had left the campus and called for the assistance of Chicago police as he resided in Chicago at 13099 South Drexel. At 4 a.m. Chicago police officers, Spiro Patros and Edward Murphy, were advised by telephone that an arrest warrant for rape had been issued in Naperville for defendant and were directed to proceed to his address and take him into custody. At about 5 a.m., after getting the approval of a felony review attorney, the officers went to the single-family residence where defendant resided with his mother, brother and sisters and knocked on the door. An adult woman, apparently defendant's mother, answered and the officers inquired whether Johnny Lane lived there and if he were at home. The woman responded that defendant was there and the officers asked if they could come in. She thereupon opened the door for them and identified defendant who was lying on a couch. When the officers asked defendant to step outside of the house, the woman stated they could talk to him inside, but the officers declined. Outside of the house the officers advised defendant of his Miranda rights and that a warrant for rape had been issued against him. He was handcuffed and transported to the Chicago 5th district police station and subsequently to the men's detention center. Officers Murdock and Cross of the Naperville police arrived and questioned defendant at 10:15 a.m. and testified at trial he then admitted to the use of force.
Defendant testified at the suppression hearing that while being transported to the 5th district station he asked the arresting officers if he could see a lawyer and they responded that was possible. Defendant also testified that at the station he asked two other police officers to see a lawyer and was advised that would be taken care of at the men's detention center. He further testified that he asked police officers for an attorney again at the detention center and that during his questioning by the Naperville officers, when he requested to see an attorney, he was told he could not do so. Defendant's mother testified she was present at the 5th district station and heard defendant tell the officers that he wished to see an attorney.
Officer Murdock, when called by the State at the hearing of the motions to suppress, denied defendant requested to see a lawyer in his presence. After defendant and his mother testified, defendant rested as to his motions and the trial judge thereupon called for oral argument. The assistant State's Attorney advised the court that the State was entitled to and needed to have rebuttal of the testimony relating to a request for an attorney, but defendant's counsel objected, and the trial judge proceeded to hear defendant's arguments on the merits of the motion without any rebuttal evidence by the State. After argument, the court denied defendant's motions.
Defendant contends first that the trial court erred in admitting evidence of his confession made following his request for counsel. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602; Edwards v. Arizona (1981), 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880.) The State confesses error, noting that the testimony of defendant and his mother that he had made such a request was not rebutted in the trial court. The State asserts, however, that the error may be considered harmless in light of the other evidence of defendant's guilt and, alternately, if determined to be not harmless, that we remand to the trial court to give the State an opportunity to present the rebuttal testimony denied it at the suppression hearing.
In People v. Black (1972), 52 Ill.2d 544, 555, 288 N.E.2d 376, 383, cert. denied (1973), 411 U.S. 967, 36 L.Ed.2d 689, ...